1932 Present : Macdonell C.J., Garvin S.P.J., and Dalton J.

HUSSAN v. PEIRIS et al.

209-D. C. Kalutara, 14,612.

Jurisdiction-Partition action-Several defendants-Residence-Test of jurisdiction-Any defendant-Courts Ordinance, s. 65 and Civil Procedure Code, s. 9 (a).

An action may be brought in a District Court where any party defendant resides, viz., any defendant against whom the right to any relief is alleged to exist.

A party defendant in section 65 of the Courts Ordinance and in section 9 (a) of the Civil Procedure Code means any party defendant.

THIS was an action in which the plaintiff sued the defendants all resident within the jurisdiction of the District Court of Kalutara to partition a land, situate at Beruwala, a place beyond the jurisdiction of the Kalutara Court. The intervenients, who were residents at Beruwala, claimed a portion of the land and pleaded that the Court had no jurisdiction. The District Judge upheld the plea and dismissed the action.

N. E. Weerasooria (with him D. E. Wijewardene), for plaintiff-appellant. -There is no question that the District Court of Kalutara had jurisdiction at the commencement of the action as the plaintiff and all the defendants were resident at Kalutara. Jurisdiction is conferred on a District Court by section 65 of the Courts Ordinance, and section 9 of the Code. The word used is " a party defendant ". The Charter (section 24) says " the party or parties defendant". In section 65 of Ordinance No. 11 of 1868, the words used are " the party defendant ". This must be construed with Ordinance No. 1 of 1852 (Interpretation Ordinance) which says that the singular includes the plural. A distinction has therefore been drawn by the use of the words "a party defendant". This was presumably copied from the Indian Act of 1882, section 17. The change was introduced deliberately. Section 77 of the Courts Ordinance, which confers jurisdiction on a Court of Requests, says " the party or parties defendant ". The word " a " in a statute means " any ", Queen v. Justices of Durham [1 (1895) 1 Q- B. 801. ] A court has jurisdiction where one defendant resides within its jurisdiction, Tirimandura v. Dassanaike [2 N. L. R. 290.] , Mohamedu Meera v. Ossen Saibo [3 Lem. 51.]. A partition action is an action regarding title plus proceedings for partition.

H. V. Perera (with him J. R. Jayawardene), for intervenient-respondents.-Partition actions cannot be brought except where the land is situated. If property is situated outside, a court has no jurisdiction even if all the defendants reside within its jurisdiction. A partition decree gives title good against the whole world. A plaintiff is .merely an applicant for partition. He cannot claim relief against the defendants as in an ordinary action. Every party to a partition action is an applicant for the allotment of a particular lot to him, absolutely and not as against

any particular person. Disputes are merely incidental to the proceedings. They are allowed because the court must decide who has title (Jayewar-dene 59; Digest 2, 1, 11, 2; Voet 2, 1, 49). Section 2 of the Partition Ordinance which deals with jurisdiction makes no reference to defendants. Defendants in partition actions are defendants in name only ; they are not in the same position as defendants in an ordinary action. The plaintiff merely names the parties interested in the land. A partition action is a proceeding in rem, Mather v. Thamotheram Pillai [1 6 N. L.. R. 246. ]. An action which results in a decree in rem must be brought where the thing is, Hukm Chand 516.

[Macdonell C.J.-Take the case of a ship wrecked on the east coast. The interested parties are in Colombo. Can they not bring the action in Colombo ?]

In the case of movables there is a fiction by which they are brought within the constructive jurisdiction of the court, Hukm Chand, s. 204. A party defendant in the Courts Ordinance means