Qunawardene v. Baby Nona.
1946Present: Jayetileke and Rose JJ.GUNA WARDENS, Appellant, and BABY NONA, et al„
87—D. C. Matara, 14,778.
Partition action—Lease of undivided, share—Right of lessor to bring partitionaction.
A person who is entitled to an undivided share of a land which he hasleased to a party is entitled to bring a partition action.
Charles Appu v. Diets Abeysinghe, 3& N. L. R., 323 distinguished.
PPEAL from a judgment of the District Judge of Matara.
V. Ranawaka, for plaintiff, appellant.
A. Rajapakse, K.C. (with him S. W. Jayasooriya), for first andsecond defendants, respondents.
* Vide (1945) 46 N. L. R. 461—Ed.
JayetUtke J .—Chtnawardene v. Baby Nona.
January 29, 1946. Jatbtelsks J.—
This is a partition action. The plaintiff was entitled to a one-sixthshare of the land, the first defendant to a one-sixth share, and the seconddefendant to the remaining four-sixths shares. The plaintiff had leasedhis share to the third defendant, who is the wife of the second defendant,by 2D7 for a period of six years commencing from January 9, 1939.The first and second defendants contended that the plaintiff could not•ma.intji.iTi the action as the lease in favour of the third defendant hadnot expired. The District Judge upheld their contention and dismissedtile plaintiff’s action with costs. The present appeal is against that order.The District Judge has based his order on the judgment of this Court inCharles Appu v. Dias Abeysinghe l, where it was held that the personentitled to the dominium only of an undivided share of the land, theusufruct being vested in another, is not entitled to bring a partition action.The reasoning of Dalton J. in that case which is summed up in thesewords seems to me to be applicable to the present case—
“ However the trend of opinion would appear to support the con-clusion that the effect of the Partition Ordinance is that, to maintain apartition action, a person must be the owner or claim to be the ownerof an undivided share, and also be in possession or be entitled to be orhave a claim to be in possession of that share ”.
The plaintiff in this case was at the date of the institution of the actionin possession of the undivided one-sixth share to which he was entitledthrough his lessee, the third defendant, and his right to institute theaction under section 2 of the Partition Ordinance cannot be questioned.
Indeed Mr. Rajapakse who appeared for the respondent candidlyadmitted that he could not support the judgment. I would Bet asidethe judgment appealed from and send the case back for trial in due course.The appellant is entitled to the costs of the contest and of this appeal.
Rose J.—I agree.
GUNAWARDENE, Appellant, and BABY NONA et al , Respondent