Almeda Et Al., V. Disanayaka Et Al.,

1948 Present : Dias and Basnayake JJ.
 
ALMEDA et al. Appellants, and DISANAYAKA et al.
Respondents.
 
S. C. 15-D. c. Galle, x 306

 Partition action-Final decree-Party deprived of rights-Claim for damages- Bona fides-Cause of action-Proviso to section 9 of Partition Ordinance.
 
A person who brings an action for damages under the proviso to section 9 of the Partition Ordinance cannot succeed unless he can show that the persons against whom he makes the claim have been guilty of a breach of a legal duty which they owed him.
 
Suweneris v. Mohamed (1028) 30 N. L. R. 11 (Divisional Court) doubted by Basnayake J.
 
APPEAL from a judgment of the District Judge, Galle.
 
N. E. Weerasooria, K.C., with Vernon Wijetunge, for plaintiffs, appellants.
 
U. A. Jayasundere, for defendants, respondents.

Cur. adv. vult.

March 15, 1948. DIAS J.-
 
The plaintiffs seek to recover damages from the defendants under the proviso to section 9 of the Partition Ordinance, alleging that the defendants, who are brothers, acting collusively instituted a partition action, D. C. Galle, L 935, with the intention of obtaining, and, in fact, obtaining a final decree in that action, whereby the plaintiffs lost their title to the land.
 
It has been found by the District Judge that the plaintiffs were entitled to certain undivided shares in the land in question; and that they were not made parties to the partition action instituted by the two defendants

He holds that the effect of the final decree in that action was to wipe out the plaintiff's title. There is, therefore, not the slightest doubt that it was the act of the defendants in instituting and carrying through the partition case to the final decree stage which caused these plaintiffs to lose their title. Does that fact per se give the plaintiffs a cause of action under section 9 of the Partition Ordinance to sue the defendants for damages.
 
The law on this point was now been settled by the decision of the Divisional Court in 8uwe.ne.ris v. Mohamed1. A plaintiff cannot establish a cause of action merely by proving that the act of another has caused him some unjustifiable harm. He must be able to go further and establish that such act amounts to an injuria in the eye of the law. The fact that a party by availing himself of the provisions of the Partition Ordinance obtained an indefeasible title to the land will not give these plaintiffs a cause of action under the proviso to section 9, unless they can go further and prove either that the defendants have done or omitted to. do anything which a legal duty which they owed to the plaintiffs required them not to do or to omit; or that the defendants have been guilty of some fault or unfairness, lack of care, or inquiry which they were under an obligation to make. In fact, to enable a plaintiff to succeed in a claim for damages under the proviso to section 9, the burden of proof is on him to show that the persons against whom he makes the claim have been guilty of a breach of a legal duty which they owed him. That duty may be sought for outside the Partition Ordinance, or it may be sought for within the four corners of that Ordinance ; but parties to partition actions will not be liable in damages under the proviso to section 9, if they acted bona fide, and in ignorance of the rights of a third party. Where the plaintiff makes allegations that the defendants in obtaining the partition decree acted collusively or fraudulently, the burden of proof on the plaintiff would be as hoary as in a criminal case-(1941) A. I. E. Privy Council 93.
 
The land in question is a paddy field called Imbulgaha Kumbura. The original owner was Louis de Silva Ranasinghe who died leaving three children-Lucia, Charles and Johana. Lucia died interstate, unmarried and issueless. Johanna's shares have devolved on the plaintiffs. Charles died leaving a widow Georgina Perera Gunasekera and a son Mic

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