Jayasekera V. Perera

Present; Schneider J. and Jayewardene A.J.

JAYASEKERA v. PERERA et al.

32-D. C. Colombo, 8,485.

Partition-Land referred to in final decree different to land referred to in plaint, and in respect of which parties proved title-Decree " given as hereinbefore provided "-Is decree binding on persons not parties to decree ?-Partition Ordinance, 1863.

Where the land referred to in the plaint in a partition action and the land in respect of which the parties proved their title and obtained an interlocutory decree was not the land depicted in the survey plan referred to in the final decree, the final decree cannot be regarded as a decree " given as hereinbefore provided " in section 9 of the Partition Ordinance, 1863, and does not bind any person except parties to that decree. Jayewardene v. Weeresekere [1(1917) 4 C. W. R. 406.] followed. 

THE facts are set out in the judgment.

E. J. Samarawickreme (with him Charles de Silva), for appellants. H. V. Perera (with him Weerasuriya) for respondent.

August 5, 1924. Jayewardene A.J.-

If the facts alleged in this case are true, they disclose a novel abuse of the Partition Ordinance. The defendants say that the plaintiff and a friend who began a suit for the partition of a land B have emerged from the action as the owners in divided shares of an entirely different land M. Such, in fact, seems to be the claim of the plaintiff. The plaintiff was the owner of a land called Bata-dombagahawatta. He sold a half share of it to one Don Martenis Seneviratne on September 28, 1918. Within two weeks of the transfer, Seneviratne instituted partition action No. 51,432 for the partition of the land between himself and his vendor, the present plaintiff. In the plaint the land was described with the following boundaries: North by the field of Arnelis Perera, East by Pallemullakumbura, South by the garden of Niunhella Appuhamy, West by the garden of Dehangoda Kotalawelage Mangris and others, and said to be 7 acres 1 rood and 25 perches, and a plan by Mr. Frida, a licensed surveyor, dated June 18, 1916, further identifying the land, was filed with the plaint.

The title of the parties was proved, and an interlocutory decree was duly entered declaring Seneviratne entitled to a half share and the present plaintiff to the other half, and directing a partition of the land described in the plaint and in Mr. Frida's plan. A com-mission was issued to Mr. S. Ratnam, also a licensed surveyor, to partition the land described in that decree.

When the commissioner went to the spot, the parties pointed out to him a land, the boundaries of which did not exactly tally with those of the land described in the commission. The configuration of the land differed from that in Mr. Frida's plan, and there was a difference in the extent.

He made a preliminary survey, and sent a report to Court with a tracing of his survey. In the report he said: -

" The parties pointed out the land to me, and I found that the description of the northern, eastern, and western boundaries as given in the plan filed of record tally more or less with the boundaries as I found them on the land. The southern boundary given in the plan is described as " garden of Niunhella Appuhamy " and others. The southern boundary of the land is really an owita or low land belonging to Anthony Appuhamy and others. 

"The plan in the record does not agree in configuration with the land in question, nor does it answer the compass. The extent given in the plan is 7.1.25, but upon survey I find the extent to be only 5a. Or. 2p. The boundaries to the land are well defined, and cannot in any way mislead the surveyor. "

"Under these circumstances I have not been able to execute the commission without further directions from the Court. I submit a tracing of my survey."

Notice of this report was given to the plaintiff's proctor, and a few days later the Court made the following order: -

"The surveyor pres

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