Neelakutty V. Alvar Et Al.,

1918 Present: Bertram A.C.J. and De Sampayo J.

NEELAKUTTY v. ALVAR et al.

57-D. C. Jaffna, 11,929.

Partition action-Decree entered by Court of Requests-Land over Rs. 300 in value-Is decree binding on persons not parties to the action?- Jurisdiction-Judgment in rem.

A partition decree entered by a Court of Requests with reference to a piece of land exceeding Rs. 300 in value is not binding on a person claiming an interest in the property who was not a party to the action.

THE plaintiff brought this action to set aside a final partition decree obtained by the defendants with respect to a land in the Court of Requests of Point Pedro, in case No. 15,448, or to recover, in the alternative, damages consequent on the passing of the decree. He pleaded that the decree was obtained by fraud and without notice, and that the Court of Requests of Point Pedro had no jurisdiction to enter the said decree, as the said piece of land was worth in the year 1913, when the decree was passed, more than Rs. 300.

The action was heard on the following preliminary issues: -

(1) What was the value of the land in suit at the date of the institution of Court of Requests, Point Pedro, No. 15,448?

(2) If at such time the value of the land was over Rs. 300, is it open to this Court to treat the decree in the Court of Requests case as not binding on this plaintiff?

(3) Under the alleged circumstances, had this Court jurisdiction to declare the decree in the Court of Requests case as inoperative?

(4) Is it open to this Court to declare the decree in the Court of Requests case null and void?

The learned District Judge found that the land was worth over Rs. 1,000, and answered the other issues of law in the affirmative.

Balasingham, for defendants, appellants.-A final decree in a partition action is conclusive and cannot be questioned, in spite of the provisions of section 44 of the Evidence Ordinance. Unless an objection as to jurisdiction is taken in time it is deemed to be waived. The plaintiff in this case is deemed to have been a party to the partition action, as the whole world is party to such an action. If the Court had tried an issue as to the value of the land raised by one of the parties, and had wrongly come to the conclusion that the value was under Rs. 300, would it be open to the same person, or any other

party, or even a person who was not a party, to go behind that  adjudication in an action in the District Court? Although the issue was not raised, it is deemed to have been raised and decided. Every objection that may be taken is deemed to have been taken in a partition case. No issue need be raised, as the case cannot be decided on the agreement of parties, or only on such issues as the parties may choose to place before the Court. The Court of Requests certainly had jurisdiction to decide the issue as to value. It is " competent " to a Court to come to a wrong conclusion as to a right conclusion.

The words " a court of competent jurisdiction " in section 2 of the Ordinance mean competent to deal with partition cases. A Police Court or Supreme Court which has no original jurisdiction, or a Court of Admiralty or a Village Tribunal, is not a competent court, because they have no jurisdiction to try partition cases. But where the objection to jurisdiction is one of value, or residence of parties, or locality, the Court has a right to try the issue raised, and if it holds that the objection is unsound it may proceed to decree partition. Otherwise, even if the value is found by the District Court to be Re. 1 over Rs. 300, the adjudication of the Court of Requests may be ignored. Will partition decrees have any conclusive effect if we can raise all these points after final decree?

Counsel cited Caspersz on Estoppel, 466, 636, 732; 6 Weerakoon 32; 4 C. W. R. 406; 12 Bom. 155; 7 All. 243; 7 W. R. 490.

Samarawickreme (with him Arulanandan), for the plaintiff, resp

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