Thevchanamoorthy Et Al., V. Appakuddy Et Al.,

1950 Present : Jayetileke S.P.J. and Gunasekara J.

THEVCHANAMOORTHY et al, Appellants, and APPAKUDDY et al.,
Respondents

S. C. 393-D. C. Jaffna, 1,159

Partition Ordinance-Section 6-Commissioner's scheme of partition-Re-issue of commission to Commissioner to submit a fresh scheme-Return of commission-Duty of Court to issue notice to all parties again-Co-owner's right to be allotted portion which contains his improvements.

Where, in a partition action, a second scheme of partition is ordered notice should be given to the parties of the day on which the second scheme will be considered by the Court. The notice which the Court has to give to the parties in terms of section 6 of the Partition Ordinance cannot be restricted to the day fixed for the consideration of the original scheme of partition proposed by the Commissioner.

A co-owner should be allotted the portion which contains his improvements whenever it is possible to do so.

APPEAL from a judgment of the District Court, Jaffna.

S. J. V. Chelvanayagam, K.C., with S. Thangarajah, for the 13th to 16th defendants appellants.

H. W. Tambiah, with A. Nagendra, for the 20th to 23rd and 26th to 29th defendants respondents.

C. Shanmuganayagam, for the plaintiffs respondents.

Cur adv. vult,

March 10, 1950. JAYETILEKE S.P.J.-

This is an action for the partition of a land called Puthiyanputhukadu. The plaintiffs alleged in para. 21 of the plaint that, about 20 years earlier, the land was amicably partitioned among the co-owners, and that divided lots were possessed by the co-owners since then, but the title deeds dealt with undivided shares. In para. 22 they alleged that the parties were in possession of the lots referred to therein, and were entitled to the improvements effected by them on the said lots. They alleged that lot 3 in the sketch annexed to their plaint with the margosa trees and. young palmyrahs in it was possessed by the 13th, 15th and 16th defendants.

On February 18, 1944, the District Judge issued a commission to C. J. Sabapathy, Licensed Surveyor, to make a survey of the land and to furnish the Court with a plan. On March 23, 1944, the Commissioner returned the Commission to Court with a plan bearing No. 784 and his report.

Paragraph 2 of the report reads-

" The 1st plaintiff stated that the land was amicably partitioned and they are claiming the respective lots for the past several years and that lots 1, 6, 7, 15 and 16 do not form part of the land under partition. According to him the respective lots with their appurtenances are claimed as follows : -

Lot 2 by 24th defendant.
Lot 3 by 23rd defendant.
Lot 4 by 7th and 8th defendants.
Lot 5 by 10th and 12th defendants.
Lot 9 by 1st, 2nd, 4th and 6th defendants.
Lot 10 by 7th, 8th and 9th defendants.
Lot 11 by 17th, 18th and 19th defendants.
Lot 12 by 13th, 15th and 16th defendants.
Lot 14 by plaintiff."

When plan No. 784 is compared with the sketch it is clear that lot 12 corresponds with lot 3 in the sketch.

When plan No. 784 is compared with the sketch it is clear that lot 12 and 24th defendants filed a joint answer in which they alleged that lot 2 was possessed by the 24th defendant, lots 4 and 10 by the 7th and 8th

defendants, lot 5 by the 10th and 12th defendants and lot 11 by the 17th, 18th and 19th defendants. In para. 10 of their answer they alleged that they had acquired a title by prescription to the said lots, and they prayed that they may be declared entitled to and allotted the said lots.

The 1st, 3rd, 4th, 5th and 6th defendants filed a joint answer. They alleged that the 1st, 2nd, 4th and 6th defendants were in possession of lot 9 and the houses and plantations standing thereon.

On April 3, 1944, the 29th defendant moved to be added as a party and his application was allowed. In his statement of claim he alleged that he had purchased from the 25th defendant a l/8th share of a portion that was divid

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