Eliyatamby Et Al. V. Kanapathy Veeragathie

1934 Present: Macdonell C.J. and Garvin S.P.J.

ELIYATAMBY et al. v. KANAPATHY VEERAGATHIE.

13-D. C. Jaffna, 25,349.

Partition-Action to partition more than one land-When such proceeding is possible-Same set of owners in same proportion of shares-Intention of Ordinance.

It is not contemplated by the provisions of the Partition Ordinance that any more than one land will be partitioned in one proceeding.

An exception may be made in cases in which more than one allotment of land are held in common by the same set of co-owners in the same proportions.

APPEAL from a judgment of the District Judge of Jaffna.

H. V. Perera (with him Chelvanayagam), for defendant, appellant.

Gnanapragasam, for plaintiffs, respondents.

N. E. Weerasooria, for first and fourth to seventh added defendants, respondents.

January 24, 1934. GARVIN S.P.J.-

In this proceeding the plaintiffs sought to obtain a partition of two separate allotments of land-the first of which is depicted in plan bearing No. 422 filed at page 97 of the record and the second being the lot No. 1 in the plan filed at page 110 of the record-upon the footing that these two allotments of land belonged to the plaintiffs and the defendants in the proportions of 1|3 to the first plaintiff, 1|3 to the second plaintiff, and 1|3 to the defendant. The defendant agreed to the partition of the first allotment. In regard however to the second allotment he took the objection that it was not competent in one proceeding under the Partition Ordinance to seek the partition of more than one land and pleaded further that lot No. 1 in the plan referred to was not a separate entity, but formed with the lots 2 to 9 shown on that plan one undivided land which belonged in common to the plaintiffs, the defendants, and several others. He indicated certain others who were entitled to interests in what he alleged was the larger common land of which lot 1 was a part and these were made party defendants.

At the trial the main point upon which the parties concentrated was the question whether lot 1 was a separate entity or whether as pleaded by the defendant it was part of a larger land held in common. The position of the plaintiffs and of the added parties was that two contiguous portions of land to which their predecessors in title had in the remote past been entitled in common had been consolidated and then divided up amicably between them so that there was allotted to each set of co-owners a separte lot, and that at this amicable division the lot 1 was assigned to those through whom the plaintiffs and the defendants now claim. They alleged that since this division which was effected over 30 years ago, the various co-owners to whom these several lots had been assigned, had each held the lot assigned to him in severalty to the exclusion of the others and thereby prescriptive rights to the lots in severalty had been acquired.

The learned District Judge held in favour of the plaintiffs. Accordingly he treated the lot 1 as a separate entity and decreed a partition thereof between the plaintiffs and the defendant in equal shares. The defendant has appealed and it has been contended on his behalf that, even upon the finding of the learned District Judge that lot 1 was a separate entity, his judgment is wrong for the reason that under no circumstances can the deeds upon which the plaintiffs claim their interests be held to have conveyed to each of them a 1|3 share of the lot 1.

The first plaintiff claimed his interests upon a deed No. 3,191 of May 13, 1929. The second plaintiff acquired her interests upon a deed No. 3,920, also dated May 13, 1929. Now these deeds so far as they relate to the claim of the plaintiffs to interests in lot 1 in the plan filed at page 110 convey not an undivided 1|3 share of the lot 1 but a 1|3 of 1|6 of a portion of land in extent 3 lachams and 1|3 of 1/3 of a land in extent 41/2 lacha

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