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Present: Ennis and Be Sampayo J.J.APPUHAMY t>. DAVTTH APPU.368—D. C. Kalutara. 10,561.
Costs—Partition action—Not a first charge on the land.
Costs in a partition action are not a' first charge on the land to bepartitioned or on the divided portions after partition, but they erepayable by the individuals taking part in 'the partition action,so that when a writ issues for costs, the property belonging to theindividual liable to pay may be seized and sold in execution in theordinary way without there being any charge on the land.
facts are set out in the judgment.
H. V. Perera, for defendant, appellant.
E. L. Pereira (with him Weerasooriya), for plaintiff, respondent.April 4, 1924. Ennis J.—,,
In this case the plaintiff asked for a declaration of title to two lotaof land marked H and U in the plan hied in the action which is thesame as the plan filed in the partion action in which the ownershipof the lots was considered. It appears that in the partition actionlot H was allotted to one Odiris and lot U was unallotted. Bothlots H and U were seized and sold for costs and purchased by theplaintiff. The learned judge held that as the property was sold forcosts in the partition action, the purchaser would get a good andvalid title, because costs are a first charge on the land sought to bopartitioned. The defendant appeals, and Mr. H. V. Perera for theappellant does not'press the appeal with regard to lot H, becausethat lot was undoubtedly dealt with in the partition action whichwould bind the defendant, but as regards lot U unallotted in thepartition action the appeal is pressed.
In my opinion the learned "Judge was wrong in stating that costs-in a partition action are a. first charge on the land tP be partitioned.They do not appear to be a charge on the land to be partitioned oron the divided portions after partition, but to be sums payable bythe individuals taking part in the partition action, so that whena writ issues for costs, the property belonging to the individual liableto pay may be seized and sold in execution in the ordinary waywithout there being any charge on the land. It appears..that thedefendant, appellant, was not a party to the partition action. Italso appears from the finding of the learned Judge, which is not
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1984.disputed on appeal, that he has been for 55 years in possession of
j lot TJ, and the question we have before us at present is whether that
‘ possession for 55 years is in any way affected by the partition action.
The learned Judge has held the defendant is estopped fromAppu denying the plaintiff’s title to lot U, because he stood by and allowedthe property to be sold. There is, however, nothing to show, and' the District Judge does not hold that the plaintiff was misled byany act of the defendant, or that he purchased under any suchmisapprehension. Moreover, no issue with regard to estoppel wasraised in the case. It would seem then that the defendant spossession has been undisturbed and uninterrupted for 55 years,notwithstanding the partition action, but defendant is entitled . tosucceed on another ground. The plaintiff at the Fiscal's sale boughtnothing, because the property' seized did not belong to the personagainst whom the writ issued. The plaintiff, therefore, had no titleby his purchase and he has not had possession, and the person inpossession is entitled to retain that possession until somebody withtitle makes a claim.
In the circumstances the appeal will be allowed with regard tolot U, and I would send the case back to the District Judge toascertain the compensation to be paid in respect of the building onlot H and to ascertain the damage in respect of lot H.
The appellant is entitled to the costs of the appeal.
Dfi Sampayo J.—I agree.
APPUHAMY v. DAVITH APPU