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BATAGAMA APPUHAMI v. DINGIRI MENIKA.
C. R., Kurunegala, 4,328.
Partition suit—Necessity of proof of title—Power of Partition Commis-sioner to award compensation—Requirements of return—OrdinanceNo. 10 of 1863, s. 5.
To obtain a decree of partition, which,is binding against all theworld, the Court should require parties to prove their title.
A Partition Commissioner has the power to award compensation.The return to the Commission should comply with the requirementsof section 5 of the Partition Ordinance with regard to schedule, &c.
LATNTJLfc'l?' claimed an undivided half share of a certain landon which he had made certain plantations, and averring
that the defendant was entitled to the remaining moiety withcertain plantations she had made, prayed for a partition, and thatVol. III.12v56,29
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compensation be made to the plaintiff and the defendant accord-Noeember 29. ing to the plantations and improvements each of them wasresponsible for. Defendant admitted that plaintiff was entitledto a half share of the land in claim, and stated that a partition ofthe land was effected of consent between them, but that if a fresh,division was ordered she claimed Bs. 90 as damages. On the casecoming on for trial on 23rd February, 1897, the Commissioner(Mr. J. S. Drieberg) made the following order :—“ No dispute as to“ title. It is decreed that plaintiff and defendant are each“ entitled to an undivided half share of the land claimed in plaint.“ Of consent Mr. E. B. Daniels is appointed Commissioner. His“ attention is directed to the pleadings.’’ A commission issued toMr. Daniels, who effected a partition of the land, whereby thedefendant was given the greater part of the plantations and ahouse, and was decreed to pay to plaintiff by way of compensationa sum of Bs. 74 -16 J. The matter came up on 20th May, 1897, beforethe then Commissioner (Mr. C. M. Fernando), who confirmed thepartition, save as to compensation, in respect of which he heldthat the Partition Commissioner had no power to award, and thathe had acted ultra vires in awarding compensation. A decreewas accordingly entered. Plaintiff appealed.
Sampayo, for appellant.
Batoa, for respondent.
29th November, 1897. Browne, A.J.—
I regret to find that when this Court repeatedly enjoined thenecessity that to obtain a decree of partition, which is bindingagainst all the world (9 S. C. C. 64; 1,375, D. C., Matara ; C 6,840,D. C., Colombo ; C 4,981, Colombo; Examiner Reports, &c.), theCourt should require parties to prove their titlA, the record of theproceedings at the trial of this action should be as follows:“ Parties and proctors present. No dispute as to title. It is“ decreed that plaintiff and defendant are each entitled to an“ undivided half of the land in the plaint.”
A Commissioner to partition was then appointed. He returneda report and survey dividing the land into two lots, and specifiedthat the values of the trees, &c., on A were Rs. 90-09 and onB 238-42£, and awarded plaintiff should get A and Rs. 74;16Jcompensation.
The Commissioner of the Court of Requests allowed defendant’scontention that the Partition Commissioner had no power toaward compensation, and decreed without it an equal soil area toeach party.
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The return to the Commission did not comply with the require- 1897.ments of section 5 of the Partition Ordinance, hi that no such Hovem5et29.schedule as is there directed was filed.Bbowne,
That schedule requires the value of the land to be shown, and ' A J'the mode in which the partition is proposed to be made. Clearly,the allotments made must be equalized in value as well as inextent. Though the decree entered by this Court in 1,346, D. C.,
Negombo, on 26th January, 1865 (Legal Miscellany, 1865, 21),was of consent, this Court and the Counsel for parties recognizedthis principle, and so far as I know it has ever since obtained.
The decree must be set aside, and in so doing I set aside allproceedings as far back as and inclusive of those of the 23rdFebruary, 1897, and direct that the action be properly tried.
Defendants will pay costs of the 25th May, 1897, and this appeal,but plaintiffs will not have execution for same decree. •
BATAGAMA APPUHAMI v. DINGIRI MENIKA