1922 Present : De Sampayo and Schneider JJ.

 HAMIDU v. GUNASEKERA et al.

57- D. C. Matara, 9,322.

Partition-Person entitled to a building and not to the soil-Is he a co-owner!-Sate among co-owners-Partition Ordinance, 1863, s. 8.

A person who has no interest in the sail, but has only in a building on the land, is not a co-owner of the common property, so as to entitle him to come in among the class of persons entitled to bid at a sale among co-owners under section 8 of the Partition Ordinance.

THE facts are set out in the judgment of the District Judge (C. W. Bickmore, Esq.) :--

I don't think much of the objections raised regarding the formal conduct of the sale. I am inclined to think that the Commissioner did not make any definite refusal to accept the seventh defendant's bid. I expect there was a more or less informal discussion, and the Commissioner then proceeded to accept seventh defendant's bids with the reservation that the matter could be discussed in Court. I think that is why he made no mention of the fact in his return to the commission. He thought it was for plaintiff to bring the matter up. I think plaintiff reached his limit, and allowed the property to be knocked down to seventh defendant. I do not believe he stopped merely because, as he says, he thought they were trying to run him up and land him with the property at a high figure. The real question is whether a person who only owns "a house on the land is entitled to bid as a co-owner at the sale. There does not appear to be any definite decision on this question, and I think I am entitled to approach the question de novo.

In this case it seems to me that all the circumstances point to the propriety of accepting seventh defendant's bid as a co-owner. He lives on the land, and big family have been living there for a very long time. Plaintiff is a person of different race, who originally came to be interested in the land through a purchase at a Fiscal's sale by his father-in-law. The property has fetched much more than the value plaintiff put on it in his plaint, and considerably more than the appraised value. On the other hand, it is quite possible that to order a fresh sale, and exclude seventh defendant from bidding would mean a decrease in the amount realized. Plaintiff now .says he is prepared to pay Rs. 4,000 for the property, so he can hardly be heard to say that the present sate at "Rs. 3,040 has prejudiced him as a co-owner by forcing him to pay a higher price than the land is worth.

As a matter of fact a second sale would be very awkward indeed, the bidding would probably force the price up to an exaggerated figure.

There is one other point. There is a went decision to the effect that compensation for buildings is a fixed sum determined by the Commissioner, and is not to be varied proportionately to the price

realized. This is contrary to what has been the practice hitherto " which has been confirmed by a series of decisions. The converse
appears to have been lost sight of, that if a much smaller price is realized the soil owners may get very little for their shares. I collected a number of cases where this principle, if put into effect, would have worked obvious injustice, I think from this point of view, too, it is only right that a person who owns a house on a land to be sold should be given the right to interest himself in the sale.

Keuneman (with him M. W. H. de Silva), for appellant.

Soertsz, for respondents.

July 26, 1922. DE SAMPAYO J.-

I am afraid the order of the District Judge refusing to interfere with the sale of the property in question cannot stand. The action was brought for the partition of a certain land which contained plantations as well as certain buildings. The seventh defendant had only an interest in one of the buildings. After investigation the Court made a decree declaring the plaintiff and some of the defendants to be owners of the soil,