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Pi esent: Wood Renton J. and Grenier J.BABUNONA el ah v. CORNELIS APPU.197— D. C. Matara, 4,704.
Land, held in trust for another—Partition decree entered in favour oftrustee—No action lies to compel trustee to re-convcy the land—Action for damages.
■Defendant. who held a share of a land in trust for plaintiffs, wasallotted the share hv decree in a partition suit..
Held, that the plaintiffs were not entitled to compel the defendantto execute a transfer of the land, and that his only remedy wasone for damages.
PPEAL from a judgment of the District Judge of Matara(B. J. Dutton, Esq.).
The plaintiffs sued the defendant for a declaration that deedNo. 1,423 dated November 23, 1905, for a certain land representedby lot E in plan filed in partition suit No.. 3,967 of the District Courtof Matara was executed in the defendant’s name in trust for theplaintiffs, and prayed that the defendant be ordered to execute atransfer in favour of plaintiffs, or in the alternative to pay damagesin Rs. 840.
The defendant pleaded the partition decree in District CourtNo. 3,967, in which lot E was allotted to him as res judicata ; hedenied that the purchase by him was for or on behalf of the plaintiffs;he also pleaded prescription.
The following issues, inter alia, were framed at the hearing :—
With whose money was the land bought ?
Who built the house on the land ?
' Present: Hutchinson C. J. and tVood Ronton J.
FONSEKA r. FONSEKA ct al.
■ 190—D. C. Colombo, 25.S84.
Decision in Babnna v. Cornells Appu followed.
Bawa, for plaintiff, appellant.
• Van Langenberg. (with him Schneider), for defendant, appellant.
H. A. Jayewardene (with him B. B. de Silva), for added defendant,respondent.
October 18, 1910. Hutchinson C.J.—
I think that we must follow the decision of this Court in the case 97—D. G.Matara, No. 4,707 (S. C. Minutes of July 4, 1910). that there is not sufficientreason for bringing the question of the correctness of that decision before aFull Court.
Worn., Renton J.—I agree.9-
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Jiiti/ /. hi to
Did defendant hold the land in trust for the plaintiffs ?
Is plaintiffs' case prescribed ?
Are plaintiffs barred by the decision in D. C. No. 3,967
from maintaining this action ?
The learned District Judge decided the issues in favour of theplaintiff's, and entered judgment in their favour with damages andcosts.
The defendant appealed.
//. A. Jayewardene, for the appellant.
A. St. V. Jayewardene. for the respondents.
Cur. adv. vult.
July 4, 1910. Wood Renton J.—
1 entirely agree with the findings of the learned District Judge onthe facts, which he has fully stated, and which I do not propose torepeat. The only question is whether, in view of the provisions ofsection 9 of Ordinance No. 10 of 1863, the plaintiffs-respondents areentitled to a decree ordering the defendant-appellant to execute aconveyance and transfer to them of the land in suit, of which hefraudulently obtained the allotment to himself under the partitiondecree in D.C., Matara, No. 3,967. Section 9 of Ordinance No. 10 of1863 provides that a decree for partition shall be “ good and con-clusive against all persons whomsoever, whatever right or title theyhave or claim to have ” in the property partitioned. And a provisoto the section safeguards the right of any party prejudiced by apartition to recover damages from the parties who have causedhim the prejudice, it has been held by the Supreme Court innumerous cases, of which it will suffice to refer to Nonohamy v.De Silva,' that under section 9 of Ordinance No. 10 of 1863 thepartition decree is conclusive against the whole world, and that theonly remedy open to a party aggrieved by it is the action of damagespreserved by the proviso. Although 1 have no sympathy whateverwith the case of the present appellant, 1 am unable to distinguishthe circumstances of the present case from those of similar cases in• which the rule of law that I have just stated was laid down. 1would set aside that portion of the decree under appeal in which thedefendant-appellant is ordered to execute a conveyance and transferof the land in question to the plaintiffs-respondents. In theirplaint, however, the respondents did claim damages in the alter-native, and the learned District Judge (see pages 39 and 40 of theRecord) has also ordered that in the event of the failure of thedefendant to execute the re-transfer directed he should pay to theplaintiffs (I) the value of the land, namely, Rs. 300 ; (2) Rs. 300 forthe house on the land which has been removed ; (3) Rs. 50 damages ;and (4) costs of the action. 1 would direct judgment to be entered1 (/mi o s. c. c. m.
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in favour of the plaintiffs in terms of the above alternative direction,but without any reference to the alternative as to the executionof a deed of re-transfer, which, in my opinion, the learned DistrictJudge had no right to order. The plaintififs-respondents shouldhave, as above stated, the costs of the action in the District Court,but as we have modified the decree of that Court in a materialparticular, I think that there ought to be no costs of this appeal.
The merits are all on the side of the respondents, and if the lawpermitted my doing so, I should certainly affimrthe order of theDistrict Judge that the appellant do execute a transfer to the plain-tiffs of the land in question. But section 9 of Ordinance No. 10 of1863 is so unequivocal in its terms that it is a complete bar to mygranting the respondents the first prayer of their plaint. They arehowever, entitled to damages, and I agree in the order proposed bymy brother in that respect as well as in the order as to costs.
July 4. to 10
BABUNONA et al v. CORNELIS APPU