SANSONI, J.—Girigoris Appuhamy v. Maria Nona
Present: Sansoni, J., and T. S. Fernando, J.
GIRIGORIS APPUHAMY, Appellant, and MARIA NONA el al.,
8. C. 296—D. C. Gampaha, 1,266P
Partition action—Land possessed in different lota by co-oirners—M»inl<r nubility ofaction in respect of a portion only.
Where a land is possessed in different portions by different uo-oivnors forconvenience of possession, a partition action cannot be maintained in respectof one portion only ; the entire land should be brought into the act ion.
APPEAL from a judgment of the District Court-, Gampaha.
H. W. Jayewardene, Q.G., with J. M. Jayamanne and P. Banasinghe,or the plaintiff-appellant.
S. Amarasinghe, for the 4th and 7th defendant,s-respondents.
Cur. adv. vuU.
July 11,1956. Sansoni, J.—
In this partition action the plaintiff sought to partition lots A to G inplan No. 770 marked X. His case was that one Juanis was the formerowner of the land Millagahalande of I3A. 3R. 36P. and that Juanis gavethat land to Singho Appuhamy to be planted, and separated off a 1/3share as the planter’s share: that Singho Appuhamy thus entered intopossession of that J share as a separate and defined portion. The plaintifffurther stated in his plaint that Juanis by deed P7 of 1896 conveyed a
SANSONI, J.—Giriyoris Appuhamy v. Maria Nona
•defined § share of the land to Roidahamy and that she thus entered intopossession of the lots mentioned, in extent 9A. 1R. 10 §P. The devolutionof title from Roidahamy is set out in the plaint and a partition asked:for on that basis.
The 4tli and 7th defendants filed an answer pointing out that the entireland of 13A. 3R. 36P. formerly belonged to Juanis and Johanis uponCrown Grant 4DI of 1866 to which title plan 4D2 was attached. Theyalso pleaded that this entire extent should be partitioned, as the wholeland was being possessed in different portions by the co-owners only forconvenience of possession. A fresh plan of the whole land was made(No. 883 marked Y), and although other persons were disclosed as neces-sary parties to the action, the plaintiff was not willing to enlarge the corpusor to add the parties disclosed, and he undertook to prove that the land hesought to partition was a separate land.
After trial the learned District Judge held that the entire land of13A. 3R. 36P. should have been brought into the action and as the plaintiffhad failed to establish that lots A to G formed a separate land the actionTailed.
At the argument before us Mr. Jayawardene drew attention to certainnatural features shown in the plan Y, namely, old fences with trees forty.years old, and old ditches, which formed the eastern boundary of the lotswhich the plaintiff sought to partition. He also drew attention to thedescriptions in the deeds executed by Roidahamy who in 1896 hadreceived a gift of an undivided § share of the entire land of 13A. 3R. 36P.Yet another point he made was that in 1871 Sinchiappu and Singhappu,by deed P3, entered into a planting agreement for a divided portion of the■entire land lying to the east of the lots sought to be partitioned.
Mr. Amerasinghe, on the other hand, contended that the execution ofthe planting agreement did not help to prove that the land wasdivided as it was merely a case of a co-owner who was entitled to a1 /6 share dealing with a specific extent whioh did not exceed his interestsin the entire land. In regard to Roidahamy’s deeds, he pointed out thatall of them were executed on the basis that she was entitled to undividedinterests in the entire land of 13A. 3R. 36P., and that the most that canbe urged in regard to them is that she sometimes referred to an undivided| and to particular directions in whioh the donee or transferee from hermay possess. In regard to the old ditches and the old fences, Mr. Amera-singhe pointed out that the plaintiff’s case was that there had been adivision of the whole land over seventy years ago and the age of the treeson the fences is not much more than forty years. Certainly, the theory•of a division seventy years ago is not borne out by any of the documentsproduced, since none of them refer to a divided | or a divided § portionof the entire land. Nor again has any deed been produced which refersto the lots sought to be partitioned as comprising a separate and distinctland.
There is no doubt that the land is possessed in different lots by differentco-owners, but such a mode of possession is in no way inconsistent withcommon possession. It would have been different if the co-owners had
Abraham Singko v. Elias
executed deeds for divided shares ; some weight w'ould then have been;lent to the theory that there had been a division of the entire land manyyears ago. It is not uncommon for co-owners who possess their interestsin a particular direction to execute deeds in which they refer to the factthat they are possessing their interests in that way, but the very fact that.Roidahamy has dealt with her interests as undivided interests in the entireland shows that she did not consider herself to be at any time the soloowner of the lots sought to be partitioned. The plaintiff’s entire case wasbased on the assumption that Roidahamy was at one time the sole ownerof the lots sought to be partitioned. The deeds she executed are thebest answer to that, and they disprove the plaintiff’s case. Even thedeed in the plaintiff’s favour is for an undivided share of the entire landof 13A. 3R. 36P.
We were referred to the decisions of this Court in 1 Balasingham’s Notes;of Cases on pages 77 and 92. I think the principle laid down in thosejudgments is that once there had been a division of a common landby arrangement among the co-owners, the fact that thereafter some ofthose co-owners deal with undivided interests in the entire land does notrestore the land to its former position of an undivided land. In the casewe are dealing with, however, there is no evidence that the land wasever divided by agreement among the co-owners, and since all the deedsexecuted by the successors in title of the former owners, except those,executed in relation to the planting agreement, deal with undividedinterests in the entire land, it is more than probable that the land was-never in fact divided.
I would dismiss this appeal with costs.
T. S. Feenando, J.—I agree.
GIRIGORIS APPUHAMY, Appellant, and MARIA NONA et al., Respondents