Present: Branch C.J. and Maartensz A.J.

PAULU v. RENGISHAMY.

137-D. C. Galle, 22,221.

    Partition action-Commission to partition-Notice by the Commissioner to the public-Ordinance No. 10 of 1863, s. 5.

In a partition action the notice given by the Commissioner, in terms of the proviso to section 5 of the Ordinance, of his intention to partition the land, must be a notice to the public.

It is not a sufficient compliance with the terms of the section to give such notice to the parties only.

The failure to give such notice to the public deprives a partition decree of its conclusive character.

APPEAL from an order of the District Judge of Galle refusing -the appellant to intervene in an action for the partition of a land called Galpotte-elamanana. The appellant moved to set aside the final decree either by way of appeal or in revision on the ground, among others, that the Commissioner who was appointed to carry out the commission had not complied with the terms of section 5 of the Partition Ordinance, in that no notice as required by the proviso to that section was given. It would seem that no notice was fixed on the land; there was no beat of tom-tom ; and the survey was held on April 4, 1925, while the commission issued only on March 13, 1925.

Soertsz, for intervenient, appellant.

J. S. Jayewardene (with him Croos Da Brera), f or plaintiff, respondent.

February 26, 1926. BRANCH C.J.-

This was a partition action in which the appellant made application to intervene. The learned District Judge refused the application as a final decree had already been entered, arid this Court is asked to set aside the final decree either by way of appeal or in revision. No action has been taken on the decree. The intervenient-appellant, hereinafter called the appellant, would appear to be entitled to a portion of the land, which is the subject of the partition proceedings, and her case is that she has been fraudulently kept out of the partition proceedings by the plaintiff and the defendant in the Court below, who have acted in collusion in

order to deprive her of her rights. The following are the principal 1926. grounds on which Sir. Soertsz, counsel for the appellant, relies for  setting aside the decree :-

(i.) The provisions of section 5 of the Partition Ordinance, 10 of 1863, have not been complied with, in that no such notice as that required by the proviso to section 5 was given. No notice was affixed on the land; there was no beat of tom-tom ; and the survey was held on April 4, 1925, while the commission issued on March 13, 1925.

(ii.) The final decree was entered in respect of a land different from that proposed for partition.

The case is in certain respects suggestive of fraud by one or both the parties in the Court below. As regards that aspect of the matter, Mr. J. S. Jayewardene, who appeared for the plaintiff-respondent, referred to such cases as Fernando v. Marsal Appu1; and as regards non-compliance with section 5 (supra), he quoted Jayewardene v. Weerasekere2 as conclusive in his favour. In that case Wood Renton C. J. agreed with the view expressed by De Sampayo J., that the notice required by section 5 of the Partition Ordinance is primarily a notice to the parties and not to the world in general, and that want of such notice would not result in the partition decree being set aside, the only remedy of a person-deprived in such a case of his interest by the partition being the remedy in damages given by section 9 of the Ordinance. During the argument in Jayewardene v. Weeresekere (supra) no mention seems to have been made of the cases Catherinahamy et al. v. Babahamy et al.3 and Sanchi Appu v. Marthelis,* and they are not referred to in the judgments. In the latter case Lascelles C.J. and Pereira J. held that parties cannot by agreement dispense with the appointment of a Commissioner, and Pereira J., in dealing with that point, said at page