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Present: Garvin A.C.J. and Lyall Grant J.
JOHANNES v. PODISINGHO.17—D. C. Kegalla, 7,169.
Co-owner—Partition action—Failure to claim compensation for improve-ments—Separate action.
A co-owner, who ha6 failed to make a' claim in respect of aplantation made by him upon the common land in an action forita partition, may not maintain a separate action to recover com-pensation for the improvement from the co-owner to whom, theportion of land, upon which the plantation stands, was allotted in thefinal decree.
^^PPEAL from a judgment of the District Judge of Kegalla.
The plaintiff in the present action was a defendant in n partitionsuit brought by the present defendant for the partition of a landcalled Dangollahenayaya. He was served with summons but failedto appear in Court or file answer. The Court ordered a partition ofthe share to which the present defendant was entitled from the restof the land. And as a result of the decree finally entered, there wasallotted to the defendant a portion of the land upon which there wasa plantation. The plaintiff then brought this action to recover fromthe defendant compensation in lespect of the plantation which healleged was made by him on the portion allotted to the defendant inseveralty. The District Judge gave judgment for the plaintiff.
H. T- Perera, for defendant, appellant.
8oertsz, for plaintiff, respondent.
June 14, 1926. Garvin A.C.J.—
The question raised on this appeal is whether a co-owner who hasneglected to make any claim in respect of a plantation made by himupon the common land in a proceeding for the partition of that landcan maintain an action to recover from a co-owner to whom thatportion of land upon which the plantation stands was allotted inseveralty by the final decree entered in the partition action compen-sation for the improvement.
The plaintiff in this action was a defendant in a partition suitbrought by the defendant for the partition of a land called Dangolla-henayaya. He was duly served with summons, but he did notappear in Court or file answer. In due course the Court ordered a •
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partition of the share to which the plaintiff, i.e., the present defendant-was entitled from the rest of the common land and abstained fromordering a partition of the entire land- The partition directed bythe preliminary decree was duly effected and was confirmed by thefinal decree; in the result there was allotted to the present defendantas and for-his share in s.everalty the portion of land upon which therewas a plantation. An appeal was entered but the Supreme Courtrefused to interfere. The plaintiff then brought this action torecover from the defendant compensation in respect of the plantationwhich he alleges was made by him on the portion allotted to thedefendant in severalty. He aiso claims damages which he allegeswere sustained by reason of the manner in which the partition wascarried out. The claim on the second of these two heads was rightlydismissed by the District Judge. It remains to consider whetherthe claim under the first of these two heads is sustainable. Thefacts and circumstances of the case have not been fully investigated.It is not, therefore, possible to say whether in any event the plaintiffwas in .a position to claim to be compensated for the improvementseffected by him, but assuming that the plaintiff is able to establishsuch facts as might have enabled him, but for the partition actionto which I have referred, to maintain a claim to be compensated outhe footing that he was a bona fide possessor and entitled to becompensated. as such, it has still to be considered whether such anaction is maintainable by one co-owner against another in anyproceeding other than a partition action.
In the case of Silva v. Silva 1 Laseelles C.J., after carefully con-sidering the provisions of the Partition Ordinance, came to the; conclusion, that .the full rights of an improving co-owner could onlybe asserted in a properly constituted partition action. This judg-ment was followed by Wood Kenton C.J., in the case of Wickrema–ratna v. Don Bastian2 The action was for a declaration of title.The plaintiff claimed one-third share of the land and in addition n"half of a planter's share of a certain plantation made on the land.His Lordship disallowed the claim to the planter's share observing:that the case was governed by the decision in Silva v. Silva (supra)
from which it results that a co-owner cannot assert as againstanother co-owner independent rights of this kind in such an action: as this, although he can, when proceedings are instituted for partitionof the common land, claim either that, if possible, the portion ofthe land on which the plantation has been made should be allottedto him or, in the alternative, that he should receive compensation• in respect of the improvement that he has effected."
In his work on The Law of Partition in Ceylon Jayewardene A.J.yputs the proposition thus: " A claim for compensation for improve-rments by one co-owner against others can only be considered in a *
115 N. L. B. 79.
* 4 Bal. Notes of Cases 41.
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properly constituted partition action." It would seem, therefore, tobe well settled law that a claim such as this can only be made by aco-owner in a properly constituted partition action. The plaintifE inthis case had an opportunity to prefer his claim in the partition actionto which I have referred. He omitted to do so. The provisions ofthe Partition Ordinance were clearly intended to be a proceeding forthe determination of every material question in dispute betweenthe parties. Moreover, there is special provision for the valuation ofnny improvements made by any of the co-owners and for making dueallowance in favour of the co-owners who have made such improve-ments in the final adjustment of their rights. The partition asfettled and embodied in the final decree must be'deemed to be a finaladjustment of all matters in dispute between the co-owners. Such.a, final decree has been entered in this case. In my opinion it is nolonger open to the plaintiff to maintain a claim for compensation inrespect of any improvements which he may have effected but inrespect of which he made no claim in the partition proceedings whichterminated in that final decree.
The appeal must, therefore, be allowed and the plaintiff’s actiondismissed.
The appellant is entitled to the costs of this appeal and also to thecosts of the trial in the Court below.
IiYALL Grant j.—I agree.
JOHANNES v. PODISINGHO