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FERNANDO et al. v. MOHAMADU SAIBO et al.D. C., Chilaw, 1,632.Partition suit—Ordinance So. 10 of. 863—Denial of plaintiff's title in to to—Denial of plaintiff’s possession—Propriety of action for partition.
Where plaintiffs alleged common possession and common titlewith defendants and subsequent ouster by defendants, but defend-ants claimed the whole land as their own and pleaded that an actionfor partition was not open to the plaintiffs until they establishedtheir title in a separate action—
Held, it was irregular to reject the prayer for partition and toorder the case to proceed as an action for declaration of title.
Per Lawbie, A.C.J.,—Neither the fact that the title of plaintiffor defendant is denied, nor the fact that neither plaintiffs nordefendants are in possession, is a good objection to an tuition forpartition.
The Court must in all cases of partition carefully investigate alltitles, and must refuse to make title on admissions or insufficientproof.
Perera v. Perera ('l N. L. R. 370) considered and explained.
' I 'HE plaintiffs in this case claiming to be the owners of three-
fourths of a certain garden, paddy field, and tank calledSangattotam, by virtue of purchases made at Fiscal’s salesin 1871 and 1882, and admitting the defendants to be the ownersof the remaining one-fourth share, complained that the defend-ants had since the month of April, 1896, kept forcible possessionof the whole of the said garden, paddy field and tank, to theexclusion of plaintiffs, and had taken and appropriated to them-selves all the produce therefrom. They prayed for a declarationof title in their favour to an undivided three-fourths of the lands ;that a fair, and equitable division be made of the said premises ;and that plaintiff’s three-fourths share be partitioned off andseparated from the share of the defendants.
Defendants claimed the whole land, but before answering tothe merits took the objection that, on the face of the plaint, plaintiffappeared not to be in possession of any portion of the landin dispute, and the plaintiffs were not entitled to maintain thisaction for partition until they proved title thereto in a separateaction.
The District Judge rejected the prayer for partition, but orderedthe case to proceed as an action for declaration of title.
Wendt, for appellant.
Dornhorst, for defendants, respondent.
Cur. adv. wit.The Supreme Court set aside the order of the District Judge,and remitted the case to the lower Court for investigation of the
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title of all the parties, under section 4 of the Partition Ordinance,
May s.and for proceeding thereafter in due course according to law.
5th May, 1899. Lawrie, A.C.J.—
The learned District Judge has refused to allow this action toproceed as a partition suit, relying on the judgment in the case ofPerera v. Perera, D. C., Kalutara, 1,567, pronounced by me andconcurred in by my brother Withers on 27th July, 1897, reportedin 2 N. L. R. p. 370.
We have been asked to reconsider that judgment, and aftercareful consideration I recommend that the record be sent backfor investigation of the titles of parties and procedure under theOrdinance No. 10 of 1863.
The earliest Partition Ordinance was No. 21 of 1844, sections10-18. That Ordinance enacted that, when any landed propertyshall belong in common to two or more owners, it shall be com-petent to any one of such owners to compel a partition.
In a Galle case, D. C., Galle, 134 (reported Ram. 1843-55, p. 140),this Court in 1848 held that the sections 10, 11, and 12 of the Ordi-nance No. 21 of 1844 made no provision for the case of a disputedownership nor contemplated such an event, and if such a case arisesthe parties must settle their rights by an action at law ; in anothercase from Galle D. C., 152, BvMer v. Koelman, 11th October, 1848(reported Ram. 1843-55, p. 148), this Court more fully discussedthe provisions of the Ordinance. It held that the application fora sale must be made by one or more owners, and as no one elseis competent to do so the Court is not authorized to make anyorder of sale when the right of ownership is denied until the titleof the parties is ascertained.
The Judges said that “ in the absence of any express directions“ in the Ordinance as to how the respective rights and proportions“ of the owners should be ascertained, when they are disputed in“ these summary applications, the Supreme Court considers that the“ proper course is for such contested claims to be tried in an“ incidental suit and the proceedings on the application to be“ stayed.”
By Ordinance No. 11 of 1852 the sections 10-18 of OrdinanceNo. 21 of 1844 were repealed. This Court held in Duff v. Crosbie(D. C., Kandy, 28,688, 21st January, 1857) that there was a com-mon law right to demand a partition, and, notwithstanding therepeal of Ordinance No. 21 of 1844 by the Ordinance of 1852,that the course prescribed by the Ordinance No. 21 of 1844, “ which“to a great extent accords with the common practise in“ such cases, should in applications of that kind be followed as far“ as practicable.”
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The civil law applicable to partitions is fully stated in 2 Burge,p. 676. Burge says, “ it is not material whether the plaintiff’s“ dominium be directum or utile, or whether one or more or all“ the joint owners be or be not in possession of the property.”
The present Ordinance No. 10 of 1863, section 4, expressly gavepower to the Court to determine questions of title.
When the defendant did not appear, the Court was directed tohear evidence in support of the title of the plaintiffs, the extentof their shares or interests, as also the title of the defendants andthe extent of their respective shares and interests in so far as maybe practicable by an ex parte proceeding, and shall, if the plaintiff’stitle be proved, give judgment by default decreeing partition orsale. Provision is also made where the defendants or any of themappear and dispute the title of the plaintiffs, or shall claim largershares or interests than the plaintiffs have stated to belong to them,or shall dispute any of the material allegations in the title. TheCourt shall in the same cause proceed to examine the titles of allthe parties interested therein and the extent of their several sharesand interests, and to try and determine any of the materialquestions in dispute between the parties. It seems clear that theinvestigation and determination as to the title “ shall be in thesame cause: ” expressly meeting and removing the difficultyexperienced in construing the older Ordinance of 1844.
But it cannot be doubted that this Court has frequently depre-cated and disapproved of the use of the Partition Ordinance by aplaintiff whose title is doubtful, because it has often appeared thatthe object in view was not a partition but a declaration, by a finaldecree, of a title which was at the commencement of the action, tosay the least of it, shaky. –
Plaintiffs resorted to the Partition Ordinance rather than toaction in ejectment, partly because a partition suit in the end gavethem an indefeasible title good against all the world, a result notattainable in an ordinary action in ejectment, and partly becauseit was always easier to get a partition decree than an ordinarydecree. There were no pleadings, the procedure was simpler. Itwas easy to call as defendant’s only claimants, who were satisfiedwith the shares allotted to them, and to leave out the realdisputants.
While I am of the opinion that a denial of the plaintiff’s title isnot an objection to a partition suit, it seems very clear that look-ing to the serious consequences of a partition decree, the Courtshould abstain from declaring any right to the land except on thebest proof. A partition decree should be more difficult to get, notless difficult to get, than an ordinary decree in ejectment, for inthe latter parties may settle matters between themselves, and the
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decree affects them only, whereas in a partition suit others areinterested and their rights are exoluded by the decree.
On full consideration of the Ordinance, 1 am of the opinion thatneither the fact that a title either of plaintiff or defendant isdenied, nor the fact that neither the plaintiff nor defendants arein possession, is a good objection to the maintenance of a parti-tion suit.
The Court must in all oases carefully investigate all titles, andmust refuse to make title on admissions or insufficient proof.
The plaintiffs appeal from an order of the District Judge, whichvirtually changes this suit under the Partition Ordinance to onefor a declaration of title only.
Perera v. Perera, 2 N. L. R. 370, was relied on by the DistrictJudge. Perera v. Perera was, I think, rightly decided. Therethe plaintiff had never been in possession of the property, norhad his wife, through whom on her death he claimed an interestin the land. His alleged title was altogether denied and con-tested. He was fortunate, indeed, in not being made to bring aseparate action for a declaration of title.
But the Judge, in refusing the present plaintiff the benefit ofproceedings under the Partition Ordinance, has relied on a passagein my brother Lawrie’s judgment, which is expressed as follows:“ It has often been held by this Court that a partition suit should“ not be brought by a man not in possession whose title is“ disputed.” If that is a correct statement of the law laid downby this Court, we must observe the law. But it does not applyto the facts of the present case in appeal.
The plaintiffs herein set* out a title which is not seriouslydisputed. The plaintiffs alleged a common possession as well as acommon title, and this possession they say they have enjoyed forsome fifteen years during the lifetime of the defendant’s fatherwithout interruption till April, 1896, when the defendants deprivedthem of their shares.
It is an audacious defence to use this alleged ouster as a leverwith which to lift the plaintiff out of the Partition Ordinance.The case ought to be dealt with under section 4 of the PartitionOrdinance, and I would remit the record with that direction.
FERNANDO et al. v. MOHAMADU SAIBO et al