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SEDOH AMI v. MAHOMADU ALI.
D. C., Matara, 997.
Partition Ordinance, 1863—Preliminary decree—Plan of the land sought to he
partitioned—Plan to be filed with the plaint.
The preliminary decree in a partition suit should determine the limitsand extent of the land sought to be partitioned or sold, with the samecare and precisionas it adjudicates onthe individualinterest ofthe
parties to that suit. As such a decree has been held to be one in rembinding on all persons whomsoever, it is of the utmost importance that theextent and limitsof the common land should be adjudged inthe-
preliminary decree as well as the shares of the claiming co-owners.
In an action forpartition the plaintiffshould appendto his plaint a
plan or sketch of the land sought to be partitioned, and should lead suchproof of the metes and bounds of the land as will enable the Court toadjudicate on that part- of the case.
The persons to whom the Commission issues should know precisely whatthe land is which he has to partition according to the instructions of hisCommission.
Section 8 of theOrdinance No. 10 of1863 providesindeed thatthe
Commissioner. shall file with his return a survey of the property in whicha survey shall have been directed by the Court. But this can only referto cas^s where the sketch or iplan, which the plaintiffs should file withtheir plaint, is of too rough a character to rest a judgment upon. It isuseless to call in aid a survey after an adjudication on the shares of therespective parties.*
HE plaintiffs alleged the# were owners- of certain shares, incommon, of a field called Gonawiitawala alias Dalugoda-
wila, situate at Ettalanadugalla, and that this*field was boundedon the east by Kamanalageralag^kumbura' south by Kepu-ela; 3r river, west by Kepu-ela or Odege-ella, north by Demalatuppahi-wila. The defendants were parties to a partition suit (in which'
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1896. present third plaintiff was a party defendant) relating to a fieldFebruary 7. described in the libel as Demalatuppahigewila of eight amunamsin extent, situate at Ettalanadugala, and bounded on the east byDalugodawila alias Bammalaralagerella, west by Hinlipuella andUdawattakumbura, north by Gassarawila and Mahamestrigewila,south by the river and Hinpanwila. •
The preliminary decree in that suit adjudged the parties to beentitled to the land Demalatuppahigewila in the shares set forththereunder, and ordered a partition of it unless the co-ownerspreferred a sale. There was no judgment as to the extent orlimits of the land which was so ordered to be partitioned.
This decree of partition was followed by the issue of aCommission to some person to execute the partition. Return wasmade to the Commission, and with it a survey showing the landand the scheme for carrying out the decree.
This survey included, it was alleged, the field mentioned in thepresent plaint. To prevent that field being caught up in the finaldecree of the partition suit plaintiffs intervened in the partitionproceedings, and were so far successful that the1 Judge postponed ..the final decree to enable the plaintiffs to institute an action todetermine whether the plaintiffs herein or the parties in • thepartition suit were entitled to the Gonawittawala alias Dalugoda-wila, or, in other words, whether that field belonged exclusivelyto the plaintiffs or formed part of the land described as Demala-tuppahiwila in the partition suit. The field now in dispute wasthat which lay between the river and the dotted line indicated inthe plan.
No evidence was called in this case. It was decided on aquestion of law, viz., whether the plaintiffs were barred by thepreliminary decree of partition in the- former suit from bringingthe present action.
The District Judge ruled that the plaintiffs were barred by thepreliminary decree in the partition suit; that the land to whichit declared the parties to be entitled was the land namedDemalatuppahigewila in the plaint; and that therefore it embracedthe land so named and described in the plaint; that the descrip-tion of the land in the plaint made the river the' southernboundary of the partition land, but the plaintiffs in this action• gave* the river as the southern boundary of their field; hence theland in the partition decree ex facie included the field in this.
The plaintiff appealed.
Dornhofst, for plaintiff, appellant.
Wendt, for respondent.
Cur. adv. vult.
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7th February, 1896. Withers, J. (after reciting the facts asabove given), said: —
The District Judge, in this state of facts, relies on the judgmentin 1 S. C. C., p. 19, which says that the preliminary decree in apartition suit is a decree in rem, i.e., one binding on the wholeworld. That being so, any one whose land has been includedin a partition decree has no way of recovering the land. He canonly sue for damages against any of the parties to the partition, bywhose act of commission or omission he has been prejudiced. If Itook the same view of the particular partition decree as the DistrictJudge has taken, I should feel bound to support'his judgment ofdismissal; but I find myself unable to dp so. In my opinionwhat I have called the preliminary decree in a partition suit should- determine the limits and extent of the land sought to be partitionedor sold, with the same care and precision as it adjudicates on theindividual interest of the parties to that suit. As such a decree hasbeen held 1 S. C. C., p. 19 to be one in rem binding on all personswhomsoever, it is of the utmost importance that the extent andlimits of the common land should be adjudged in the preliminarydecree as well as the shares of the claiming co-owners.
The plaintiffs in a partition suit should append a plan or sketchto their plaint, and should lead such proof of the metes andbounds of the land as will enable the Court to adjudicate on thatpart of the case.
The person to whom the commission issues should knowprecisely what the land is which he has to partition according tothe instructions of his commission.
No doubt the 8th section of the Ordinance No. 10 of 1863 providesthat the Commissioner shall file with his return a survey of theproperty, in which a survey shall have been directed by the Court.
But this I take it can only refer to cases where the sketch orplan, which the plaintiffs should file with their plaint, is of toorough a character to rest a judgment upon.
It is putting the horse behind the cart to call in aid a surveyafter an adjudication on the shares of the respective parties.
In this very case the Commissioner* has expressed the extent ofthe land delineated in his survey by terms of English measurefnent,*i.e., 22 acres 1 rood 8.81 pe/ches. Is this less or more than, orequal to, the extent expressed in the plaint in terms of nativemeasurement, i.e., 8 amunams ? That has no? been determined.In my opinion the preliminary .decree ifi the partition suit-No. 35,788 is not one binding on third parties for want of adjudi-cation on the essential point of metes and bounds.
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1896. Unfortunately, the plaint in the present action is defective inFebruary 7. omitting to give the metes of the field claimed by the plaintiffs asWithers, J. their own separate property, and as lying outside the land calledDemalatuppahigewila, in the partition suit, and to afford anadequate description of the property by reference to a sufficientsketch, map, or plan, as required by the 41st section of the CivilProcedure Code..
However, the plan exhibited at page 41 may be taken as asufficient one for the purpose of this trial, and it will be for theplaintiffs to prove what, if any land, but not more than that claimed,to the north of the river therein delineated, belongs to them.exclusively under the name of Gonawittawala alias Dolugoda-wila, That is the issue to be tried. To such extent, if any, asthey may succeed, they will have judgment, and to that extentthe land in the partition suit will have to be reduced, the decreetherein being informed for that purpose accordingly-
I think that the judgment in appeal should be set aside andthe oase remitted for the trial of the issue above indicated. Theappellants will have their cost in appeal.
We are not hereby violating any principle in any of the casescited to us in argument, e.g., 1 8. C. G. 19, 7 8. G. G. 125. Rather, weare vindicating the principle of the judgment of Clarence andDias, J.J., in the Galle case reported on in 8 S. C. C. 50.
As I retain the opinion I expressed in D. C., Galle, 47,431,reported in 7 S. C. C. 125, I agree in giving this judgment. Ithink it is in accord with much I said then. I am glad that mybrother is of opinion that the judgment now given, does not violatethe principles which guided the majority of the Court, FlemingA.C.J., and Dias, J.
SEDOHAMI v. MAHOMADU ALI