Umma Sheefa V. Colombo Municipal Council

1934 Present: Garvin S.P.J, and Poyser J.

UMMA SHEEFA v. COLOMBO MUNICIPAL COUNCIL.

213-D. C. Colombo, 49,139.

    Partition decree-Conclusive effect wipes out vesting order under section 146 of the Municipal Councils Ordinance-Investigation into title-Admissions and agreement with regard to title without evidence-Decree not conclusive-Partition Ordinance, s. 9.

The conclusive character of a judgment entered in accordance with the provisions of the Partition Ordinance is sufficient to wipe out the effect of a vesting order made under section 146 of the Municipal Councils Ordinance, No. 6 of 1910.

The investigation into title which is an essential requirement compliance with which is one of the conditions upon which a decree in a partition case is accorded the effect of a judgment in rem is an investigation made by Court with the object of determining whether the title of the parties claiming to be owners of the land has been strictly proved. Where in a partition case there were admissions and agreements in respect of the rights of parties inter se but no evidence that they or any of them were entitled to the premises or to any shares thereof at the dates material to the action,-

Held, that there was no proper investigation into title which would give the decree entered thereafter the conclusive effect given to it by section 9 of the Partition Ordinance.

APPEAL from a judgment of the District Judge of Colombo.

Hayley, K. C. (with him Keuneman and Gratiaen), for first defendant, appellant.

M. T. de S. Ameresekere (with him T. S. Fernando), for plaintiffs, respondents.

Nadarajah (with him Mahrooj), for second defendant, respondent.

Cur. adv. vult.

May 10, 1934. GARVIN S.P.J.-

This is an appeal from a decree declaring the first plaintiff emitted to the premises bearing assessment Nos. 45 to 57, 62, and 28 situated at 2nd Cross street, Maliban street, and Norris road, and more fully described in the schedule attached to the decree which, further, ordered the second defendant to pay to the first plaintiff the sum of Rs. 350 and further damages at Rs. 840 per mensem from March 1, 1933, till the first plaintiff is restored to possession of the premises.

The second plaintiff is the husband of the first plaintiff. The first defendant is the Municipal Council of Colombo, and the second defendant claims title to the premises by virtue of a conveyance from the first defendant Council bearing No. 1,586 dated October 2, 1929, and attested by N. H. M. Abdul Cader, Notary Public.

The first plaintiff pleaded as her title a certificate of title dated June 7, 1920, under the hand of the District Judge of Colombo in favour of Rahimath Umma issued in pursuance of a sale of the premises held under a decree in partition case No. 46,980 of the District Court of Colombo

and a transfer No. 315 of September 4, 1920, by the said Rahimath Umma and two of her children in favour of the first plaintiff who also was a child of Rahimath Umma.

The first defendant Council had caused the premises to be seized and sold for non-payment of rates on June 21, 1916. At the sale the Council became the purchaser thereof and by virtue of four vesting orders marked 2D1 to 2D4 under the hand of the Chairman dated January 28, 1919, became the absolute owners thereof.

The effect given to such vesting orders by the Municipal Councils Ordinance, No. 6 of 1910, section 146, is that the Council must be deemed at the date to have been vested with absolute title to the premises free of all encumbrances.

The learned District Judge has, however, held that as the combined effect of the decree in D. C. Colombo, No. 46,980, dated March 18, 1919, and the certificate of sale issued in pursuance thereof the title vested in Rahimath Umma prevailed over the title of the Council which was of earlier date. It was contended that the decree above referred to was not a decree for which the

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