Hendrick Et Al., V. Podinona

1954 Present: Pulle, J., and Swan, J.

G. G. HENDRICK et al, Appellants, and M. PODINONA,
Respondent

S. C. 101 and Inty. 44-D. C. Balapitiya, 218

Partition action-Summons not duly served on a party defendant-Waiver of irregularity -Effect on final decree.

In a partition action the appellant, who was not mentioned as a defendant in the plaint, was ordered by Court to be made a party. His name thereafter appeared as one of the defendants and he took part in the proceedings between interlocutory decree and final decree. He admitted that the share allotted to him in the interlocutory decree was correct.

Held, that the failure to give the appellant notice of the action and/or to call upon him to file a statement of claim was not an irregularity that could entitle him to challenge the validity of the interlocutory decree. He was therefore bound by the final decree.

APPEALS from a judgment of the District Court, Balapitiya.

T. P. P. Goonetilleke, with B. E. de Silva, for the defendants appellants.

C. V. Ranawake, for the plaintiff respondent.

Cur. adv. vult.

495

February 12, 1954. SWAN, J.-

There are two independent appeals in this case. The appeal of the 1st defendant is numbered 101/1953 (F) and that of the 2nd defendant 44/1953 (Inty). They have been argued together. In fact the same counsel appeared for both appellants. For the sake of convenience and in order to avoid confusion I shall refer to the appellant in the final appeal as the 1st appellant and to the appellant in the interlocutory appeal as the 2nd appellant.

The appellants were sued by the respondent for declaration of title to a certain allotment of land, for ejectment and for damages. After trial the learned District Judge gave judgment against the 1st appellant and as the 2nd appellant was in default ordered decree nisi against her.

I shall first dispose of the appeal of the 2nd appellant. When decree nisi was served on her she appeared and took time to show cause. The ultimate result of her application was that the decree nisi was vacated and she was allowed to file answer and contest the case. In these circumstances I cannot see what cause she has for complaint. In my opinion there is no merit in her appeal and I would dismiss it with costs.

I shall now deal with the appeal of the 1st appellant. The respondent claimed to be entitled to the land in question under and by virtue of the Final Decree dated 10.5.1939 entered in partition suit No. 28019 of the District Court of Galle. The 1st appellant's main defence was that he was not bound by that decree because, though ordered to be made a party and named in the caption, he was not served with summons. He also pleaded a title by prescription. The learned District Judge held against the 1st appellant on both these issues and gave judgment for the respondent as prayed for but with damages at Rs. 5 per mensem from date of decree till restoration of possession and half costs of action.

Admittedly the 1st appellant had been in occupation of the lot in dispute after the Final Decree and, as this action was instituted on 19.8.49, he had more than ten years' possession. But the learned District Judge came to the conclusion that his possession was not adverse to the respondent. In the Final Decree the respondent had been ordered to pay the 1st appellant compensation. This amount was deposited in Court only on 10.2.49. In these circumstances the learned District Judge held on the authority of Sediris v. Dingirimenika 1[(1948) 51 N. L. R. 6.] that the 1st appellant could not claim a prescriptive title.

Mr. Goonetilleke who appeared for the appellants does not challenge the proposition that possession under a jusretentionis is not adverse possession. He based his whole argument on the invalidity of the Final Decree as against the 1st appellant. Undoubtedly, if the 1st appellant was not bound by the decree, it could hardly be contended

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