1917 Present: Ennis J. and De Sampayo J.

APPUHAMY v. SAMARANAYAKE.

24-D. C. Negombo, 11,544.

Plaintiff's interest not disclosed by parties to a partition action-Action for damages against parties to partition action by plaintiff.

A person claiming to be the owner of a piece of land which had been partitioned by others in a proceeding under Ordinance No. 11 of 1863 cannot claim damages under section 9 of the Ordinance from the parties to the partition action if they acted bona fide and in ignorance of the rights of the plaintiff.

If any owner or co-owner is aware of the pendency of the partition action and abstains from coming forward he cannot afterwards claim damages.

THE plaintiffs in this case alleged that they were the owners of a land Moragahakumbura, and that the defendants had fraudulently represented to the District Court that they (defendants) were the absolute owners of the land, and had obtained a partition ' decree in D. C. Colombo, 9,434; the plaintiffs claimed from the defendants damages (Rs. 600). The District Judge dismissed plaintiffs' action. They appealed.

Samerawickreme (with him W. H. Perera), for plaintiff, appellant.

F. de Zoysa, for first defendant, respondent.

E. T. de Silva (with him M. W. H. de Silva), for the second to fifth defendants.

Cut. adv. vult.

March 15, 1917. ENNIS J.-

This was a claim to recover damages under the proviso to section 9 of the Partition Ordinance.

The section, after providing that the partition decree shall be conclusive evidence of title, runs: " Provided that nothing herein contained shall affect the right of any party prejudiced by such partition or sale to recover damages from the parties by whose act, whether of commission or omission, such damage had accrued."

The plaintiffs claimed that their predecessor in title granted a usufructuary mortgage to Ausadahamy in 1868 of a land which Metuhamy held (P 1) " by giving Government one-fourth share. " The mortgage does not appear to have been registered, and on Ausadahamy's death over twenty years ago the land passed to his heirs, who obtained a partition decree for this and other land in 1914. The principal plaintiff, Carolis, said that he heard that a partition action (had been brought after his letter of demand, but was not aware that the land now claimed was included in the action. From the fact that Carolis, who is a process server, did not intervene in the action, the learned Judge has inferred that he did not become aware of the mortgage bond till long after the partition decree had been entered. This inference is contrary to Carolis's own evidence. The parties to the partition action were unaware of the bond, and the omission to mention it was therefore not deliberate. The learned Judge has found that there is a strong probability that Ausadahamy possessed on some informal sale or acquired prescriptive title. He has presumed an ouster, and I am unable to say that he is wrong. Moreover, I think Carolis's statement that he did not know that the land was being partitioned is extremely doubtful; if he knew and stood by, he is bound by the partition decree. Whether an ouster be presumed, or whether the plaintiffs are estopped by their non-intervention in the partition action, the decree appealed from is right, and I would dismiss it, with costs.

DE SAMPAYO J.-

The defendants in this action are the plaintiffs and defendants in the partition action No. 9,434 of the District Court of Colombo, in which the land Moragahakumbura was partitioned among them. The plaintiffs, alleging that they were the true owners of the land, and that the defendants obtained the partition decree by fraudulently representing to the said District Court that the defendants were the absolute owners thereof, claim from the defendants Rs. 600 as damages. The proviso to section 9 of the Partition Ordinance enables any persons prejudiced by the partition or sale to