Muthumenika Et.Al. V. Appuhamy

1948     Present: Dias and Gratiaen JJ.

MUTHUMENIKA et al, Appellants, and APPUHAMY, Respondent.

S. C. 515-D. C. Kurunegala, 1,362A.

Partition action-Preliminary Survey-Claim before surveyor-Party not noticed-Decree as hereinafter provided-Section 9-Duty of plaintiff in partition action-Action for damages-Measure of damages.

Failure to notice a party disclosed in the surveyor's report does not destroy the conclusive effect of a final decree in a partition action.

It is the duty of the plaintiff to see that all the necessary parties are brought before the Court. Where, therefore, the plaintiff knew that there was an intervenient disclosed in the surveyor's report, his failure to make such intervenient a party amounts to such a breach of duty as would give rise to a claim, for damages under section 9 of the Partition Ordinance.

The measure of damages suffered by such person is the value of his right in the land which he lost by reason of the final decree being entered.

APPEAL from a judgment of the District Judge, Kurunegala.

F. A. Hayley, K.C., with C. R. Gunaratne, for defendants, appellants.

N. E. Weerasooria, K.C., with W. D. Gunasekera and G. T. Samarawickreme, for plaintiff, respondent.

Cur. adv. vult. 

September 8, 1948. DIAS J.-

The present plaintiff instituted a partition action, D. C., Kurunegala, 1,362, in regard to a land called Kahatagahamulawatta, valued at Rs. 1,000. His root of title was a Crown Grant P 1 dated July 19, 1929. The original co-owners were said to be: -
 

Ukkubanda, who was entitled to        ...  3/8

Dingirimenika, who was entitled to     ...  3/8

Singhoappu, who was entitled to       ...   2/8

 

Ukkubanda's share devolved on the plaintiff; Singhoappu's 2/8 devolved on the defendant to that action subject to the plaintiff's life interest. Dinigirimenika's share was alleged to have also devolved on the defendant, but as those deeds were not available the plaintiff did not recite them in his plaint in the partition action.

That action had rather a chequered career. The journal of the case is the exhibit D 6. The action was instituted in 1943. Although this was a partition action, and the law requires that no summons should issue until the lis pendens is registered, there is nothing to show that this was done. Summons was served on the sole defendant, who is a servant of the plaintiff. He filed no answer but appeared in person and accepted the share allotted to him in the plaint. Thereupon a commission was

issued for what is known as the preliminary survey. The plan was filed on July 7, 1943, whereupon the Court fixed the case for " ex parte trial ".

Had the plaintiff's proctor done his duty, or had the Court been vigilent, the surveyor's report D 1 dated July 5, 1943, would have indicated that one K. M. Kiribanda or some person on his behalf had made a claim to the corpus sought to be partitioned. Ordinarly, in such cases, the Court would add the party disclosed and order process to issue on him so as to enable him to intervene. This was not done.

The trial took place in December, 194

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