1944 Present : Howard C.J. and de Kretser J.

PERERA, Appellant, and ATTALE,
Respondent.

221 - D. C. Colombo, 2,392.

Partition - Action dismissed - Land possessed dividedly - Sale pending action - Adverse possession - Interruption and subsequent restoration - Partition Ordinance, s.17.

Where an action was instituted for the partition of a land and was dismissed on the found that the land was possessed dividedly and not in common,-

Held, that the sale of an "undivided' share by one of the owners pending the action was not obnoxious to section 17 of the Partition Ordinance.

Defendant was ousted by plaintiff in November, 1940, of a land when he could claim a little over nine years' possession. He brought a possessory action against the plaintiff and decree was entered in February, 1942, declaring him entitled to the possession of the land.

Held that defendant's possession was interrupted by the ouster and the decree in the possessory action did not give him de jure possession of the land from the date of ouster.

APPEAL from a judgment of the District Judge of Colombo. The facts are stated by the District Judge as follows; - It is common ground that Liyanage alias Pathirage Cornelia Perera was the original owner of the land which is the subject-matter of this action. In 1928 Case No. 24,427 of this Court was instituted for the partition of the entire corpus shown in the plan. By deed No. 841 dated July 20, 1931, Cornelia Perera transferred her interests to one Alice Perera. Those interests are described in the deed as an undivided ½ of 3/5 of the whole land. Alice Perera by deed No. 440 dated April 5, 1933, conveyed those interests to one Lawrence Perera, who in turn by deed No. 952 dated August 9, 1940, conveyed them to the defendant in this case. Cornelia Perera was the seventh defendant in the partition case. The present defendant intervened and was made seventy-ninth defendant. The action was dismissed on the ground that the land was held dividedly and not in common.

By deed No.740 of February 27, 1938, shortly after the dismissal of the partition action, Cornelia Perera purported to convey her interests to

one Dharmadasa who, by deed No. 115 dated November 5, 1941, conveyed them to the plaintiff. In these deeds the description given is "an undivided ½ of 3/5, now a defined portion".

L.A. Rajapakse (with his K. Heart), for plaintiff, appellant.

H.V. Perera, K.C. (with him Cyril E.S. Perera), for defendant, respondent.

Cur .adv. vult.

March 22, 1944. DE KRETSER J.-

There are three questions for decision in this case -

(1) Was the sale to Alice Perera void by reason of section 17 of the Partition Ordinance?

(2) If valid, did it convey more than three - tenths of lot K, the subject matter of this action?

(3) Has defendant acquired a title by prescriptive possession?

Of these the second presents no difficulties. Mr. Perera admitted he could not support the learned trial Judge's view that the maxim falsa demonstratio non nocet applied and further that decisions of this Court were against him. If valid, the deed purporting to convey three - tenths of the larger corpus would operate to the extent of conveying only three-tenths of lot K.

In my opinion the first question must be answered in the negative. Section 17 renders void only the alienation of shares of a land which is properly the subject of a partition action, i.e., land belonging in common and nut land alleged to belong in common, the words "as aforesaid' refer so back to section 2, and section 2 only contemplates an action to partition land really belonging in common to two or more persons. The sale prohibited is one of an undivided share in such a land. To hold otherwise might work manifest injustice. A person owing the entirety of a land might well be ignorant that third parties had instituted an action to partition his land on a false allegation that they owned it. He would no doubt be aff