Present: Ennis and De Sampayo JJ. 1924.

CASSIM v. DE VOS et al.

 363-D. C. Galle, 20,259.

Partition-Plaintiff aware of claim of another party-Omission to make him a party-Action for damages-Ordinance No. 10 of 1863, 8. 9.

A knowing that B claimed to be the owner of lot X instituted an action for partition of a piece of land including lot X, and obtained a partition decree without making B a party.

Held, that B was entitled to claim damages from A under section 9 of the Partition Ordinance.

An action under section 9 need not be based on any willful or fraudulent act, but may be based on any act which gives rise to damage.

THE facts are set out in the judgment.

Samarawickreme, for the first defendant, appellant. Soertsz, for the second defendant, appellant. B. F. de Silva, for plaintiff, respondent.

March 27, 1924. ENNIS J.

This was an action for damages under section 9 of the Partition Ordinance. The plaintiff asserted that his land had been incorporated in a land which was partitioned at the instance of the defendants in action No. 19,333. In that action the then plaintiffs moved to partition the land Horagaskela. The plaintiff says that what was included in that land was a small portion bearing the name Horagaskela- addara. He says that the plaintiffs in case No. 19,333 were well aware of his claim, because in the previous action No. 15,817, which was an action for partition at the instance of one Stephen Henry Dhanayake, a son of the second defendant, he made a claim and intervened. That previous action was dismissed as the then plaintiff had no title. The present plaintiff's claim in intervention in that action was, however, taken into account, and on the survey made for the purpose of that action his claim was marked lot D as shown on plan No. 852 marked P 1 in the present case. The learned Judge has found as a fact that the present defendants were aware that the plaintiff claimed to be entitled to lot D, which he said was a part of the land partitioned in case No. 19,333. On the question of title, the learned Judge found in favour of the present plaintiff and awarded him damages in respect of lot D. The present appeal is from that decree.

 It was next urged with regard to title that the plaintiff had had no effective possession . On this point we have the evidence of Abdul Cader, one of the predecessors in title of the plaintiff, that he planted for himself the coconuts on lot D. Abdul Cader has identified the land, and his evidence seems to show beyond question that there has been effective occupation by one of the plaintiff's predecessors in title. It was urged that the coconuts on lot D are in line with the coconuts on the adjoining property which belongs to the defendants. The mere fact that they run in the same line is not conclusive that the two lands are one, because we find that the trees on lot D are of different age from the trees on the adjoining land. The condition of the trees and the formation of the land seem to indicate that there is a strong probability that lot D was separately owned and separately planted as stated by Abdul Cader. In the circumstances there is no reason to think that the learned Judge is wrong in holding that the plaintiff has had effective occupation of lot D, and the learned Judge has gone further and held that the plaintiff has continued to occupy so as to prevent a prescriptive right arising.

We now come to the principal argument in this case which is based on the question of law. It was urged on appeal that the defendants were not liable to an action under section 9 of the Partition Ordinance. In this respect two cases were cited to us. The first case is Fernando v. Fernando.[1 (1918) 20 N. L. R. 410] In that case the Chief Justice said that it would seem to be clear that no action lies under section 9, except upon proof of the breach of a legal duty, and further that on the authority of the case of Ap