GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council.
1934Present: Garvin S.P.J. and Poyser J.
UMMA SHEEFA v. COLOMBO MUNICIPAL COUNCIL.
113—D. C. Colombo, 49,139.
Partition decree—Conclusive effect wipes out vesting order under section 146 ofthe Municipal Councils Ordinance—Investigation into title—Admissionsand agreement with regard to title without evidence—Decree not conclu-sive—Partition Ordinance, s. 9.
The conclusive character of a judgment entered in accordance withthe provisions of the Partition, Ordinance is sufficient to wipe out theeffect of a vesting order made under section 146 of the Municipal CouncilsOrdinance, No. 6 of 1910.
The investigation into title which is an essential requirement com-pliance with which is one of the conditions upon which a decree in apartition case is accorded the effect of a judgment in rem is an investi-gation made by Court with the object of determining whether the titleof the parties claiming to be owners of the land has been strictly proved.
Where in a partition case there were admissions and agreements inrespect of the rights of parties inter se but no evidence that they or anyof them were entitled to the premises or to any shares thereof at thedates material to the action,-—
Held, that there was no proper investigation into title which wouldgive the decree entered thereafter the conclusive effect given to it bysection 9 of the Partition Ordinance.
PPEAL from a judgment of the District Judge of Colombo.
Hayley, K.C. (with him Keuneman and Gratiaen), for first defendant,appellant.
M. T. de S. Ameresekere (with him T. S. Fernando), for plaintiffs,respondents.
Nadarajah (with him Mahroof), for second defendant, respondent.
Cur. adv. vult.
May 10, 1934. Garvin S.P.J.—
This is an appeal from a decree declaring the first plaintiff entitled tothe premises bearing assessment Nos. 45 to 57, 62, and 28 situated at2nd Cross street, Maliban street, and Norris road, and more fully describedin the schedule attached to the decree which, further, ordered the seconddefendant to pay to the first plaintiff the sum of Rs. 350 and furtherdamages at Rs. 840 per mensem from March 1, 1933, till the first plaintiffis restored to possession, of the premises.
The second plaintiff is the husband of the first plaintiff. The firstdefendant is the Municipal Council of Colombo, and the second defendantclaims title to the premises by virtue of a conveyance from the firstdefendant Council bearing No. 1,586 dated October 2, 1929, and attestedby N. H. M. Abdul Cader, Notary Public.
The first plaintiff pleaded as her title a certificate of title dated June 7,1920, under the hand of the District Judge of Colombo in favour ofRahimath Umma issued in pursuance of a sale of the premises held undera decree in partition case No. 46,980 of the District Court of Colombo
GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council. 39
and a transfer No. 325 of September 4, 1920, by the said RahimathXJmma and two of her children in favour of the first plaintiff who alsowas a child of Rahimath XJmma.
The first defendant Council had caused the premises to be seized andsold for non-payment of rates on June 21, 1916. At the sale the Councilbecame the purchaser thereof and by virtue of four vesting orders marked2D1 to 2D4 under the hand of the Chairman dated January 28, 1919,became the absolute owners thereof.
The effept given to such vesting orders by the Municipal CouncilsOrdinance, No. 6 of 1910, section 146, is that the Council must be deemedat the date to have been vested with absolute title to the premises freeof all encumbrances.
The learned District Judge has, however, held that as the combinedeffect of the decree in D. C. Colombo, No. 46,980, dated March 18, 1919,and the certificate of sale issued in pursuance thereof the title vested inRahimath Umma prevailed over the title of the Council which was ofearlier date. It was contended that the decree above referred to was nota decree for which the conclusive effect of section 9 of the Ordinancecould be claimed because it was entered of consent and without proof oftitle and, alternatively, that, in any event, the provisions of section 9only bind persons who had title at the time of the institution of the actionand were not made parties and those who acquired a title to an undividedinterest in breach of section 17. As to this alternative contention it issufficient to say that it is as well settled as anything can be by a longseries of judgments of this Court that a judgment entered in accordancewith the provisions of the Partition Ordinance is final and binding uponall persons and has the effect of a judgment in rem. It wipes out allprevious title and vests the premises in the persons declared to be theowners to the exclusion of all other claims of title. It was sought; howeverto place the Municipal Council in a special position in that its titleproceeded from section 146 of the Ordinance and not from any previousowner who might as such have been made a party or who might haveintervened in the proceedings. Everything which is susceptible of owner-ship, and in .a special sense property such as this is, must be presumedto be in the ownership of some person. The effect of section 146 is topass the title of the owner, whoever he may be, to the Council with theadditional advantage that on being vested the title becomes absoluteand free of all encumbrances. It is impossible to admit the contentionthat the Municipal Council is not bound except in a view of the PartitionOrdinance and the effect of section 9 which would be irreconcilablewith the law as declared in the long series of judgments to which I havereferred.
There is more substance in the contention that the decree with whichwe are here concerned is one for which the conclusive effect of section 9may not be claimed.
The plaint in D. C. No. 46,980 is dated November 24, 1916. Anamended plaint was filed on February 2, 1917. The plaintiffs, who wereRabia Umma and her husband Samsadeen Sherifdeen, sought a partitionof these premises alleging that Ibrahim Lebbe Ahamado Lebbe Marikar,being the owner thereof, had by deed No. 944 of July 22, 1871, gifted the
GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council.
same to his daughter, Candoo Umma, subject to a fidei commissum infavour of her children, that Candoo Umma died in 1894 leaving her sur-viving her children, abdul Cader and Rahimath Umma; that AbdulCader died leaving three children—the first plaintiff and the second andthird defendants—and that the persons entitled to the premises wereRahimath Umma first defendant and the first plaintiff and second andthird defendants. The second and third defendants through their guardianad litem filed answer admitting the averments in the plant but allegingthat in terms of the fidei commissum the premises devolved on the firstdefendant as to half and on the first plaintiff and second and thirddefendants in the proportion of one-sixth to each. The first defendantclaimed that she was exclusively entitled to the entirety of the premises.
On March 27, 1918, one Abdul Cader Mohamed Nauf intervened andclaimed that he was entitled to a one-eighth share.
On May 9, 1918, the journal shows that the trial was postponed toawait the decision of case No. 46,977. The hearing was postponedfor various reasons and was ultimately taken up on March 18, 1919.On that day all the parties were represented and what took place isrecorded as follows: —
The parties agree that the finding in case 46,617 should bind the partiesin this case as regards the intervenient.
Mr. Canekeratne reads in evidence deed No. 944 (PI).
I find that the parties are entitled to the land as follows: —
First plaintiff, second defendant, third defendant,intervenient—are
entitled to one-eighth share each ;
and the first defendant is entitled to half share subject to the conditions
in deed No. 944.
Let the premises be sold and the proceeds be brought into Court for dis-tribution under the Entail and Settlement Ordinance. All costs to be borne
The above is the record of what took place at the trial of case No. 46,980.
The finding in 46,617 which the parties agreed should be binding onthem was that the intervennient was also a legitimate child of AbdulCader.
Apart from the averments and admissions in the pleadings and theagreement of the parties as regards the position of the intervenient, canit fairly be said that there was evidence before the Court that the firstplaintiff and the first, second, and third defendants and the intervenientwere entitled these premises? By their admissions and agreementsthe parties consented to their rights inter se being determined in accord-ance therewith. The only evidence in this case is that which is affordedby the deed 944. This deed being over thirty years no prooof of executionis necessary. All that appears on the face of that document is that oneIbrahim Lebbe Ahamado Lebbe Marikar, claiming to be entitled tocertain premises, purported to convey them by way of-gift to his daughter,Candoo Umma, in the year 1871. There is no evidence in the record ofAhamado Lebbe Marikar’s title. There is no evidence that he ever hadany possession, there is no evidence of any possession of the premises
GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council. 41
thereafter by Candoo Umma or any of her descendants and there isnothing to show that the parties or any of them were in possession at anytime. No evidence has even been adduced in proof of the avermentthat the parties are the descendants or successors in estate of CandooUmma.
In the result apart from the consent of parties there was no evidencethat the parties to this action or any of them were co-owners of these,premises.
It was sought to reinforce the record of the proceedings at the trialof D. C. No. 46,980 by the proceedings in D. C. No. 46,977 upon theground that in that case the parties had agreed that the decision should,subject to appeal, bind the parties in 46,617, 46,977, and in 46,980. Thelearned District Judge rejected the objection raised and after perusingthe proceedings in that case and in two others states that it is perfectlyclear that there was a full investigation into the title of parties in D.C.No. 46,977, and in view of the agreement entered therein that the decisionin that case should bind the parties in 46,980 he appears to have come tothe conclusion that there was also an investigation as to title in 46,980.Assuming that there was a full investigation into title in 46,977, whichbe it noted related to premises No. 12, Chatham street, it is difficult tosee how the conclusion is reached that there has been a full investigationas to the title to premises Nos. 45 to 57, 62, and 28 situated at 2nd Crossstreet, Maliban street, and Norris road which are the premises sought tobe partitioned in 46,980. and to which there is not even a reference in46,977.
Now in 46,977 the parties submitted for the decision of the Courtnine questions at which the parties were at issue. These questionsrelated to their rights inter se. The agreement recorded in that casewas that the decision of the Court should bind them in 46,980 and theother two cases then pending. But even if the matter be approachedupon the footing that this agreement was actually entered of record in46,980 all it amounts to is that the parties consented that their rightsinter se should be as ascertained in 46,977. Whatever the reason for theconsent may have been it is manifest that the shares assigned to theparties in 46,980 were the shares they consented to take and were notbased on evidence that they were entitled to the premises which were thesubject matter of the action in those proportions.
In view of the Judge’s observation as to the fullness of the investigationin 46,977 I would, in passing, observe that that action proceeded verylargely on the assumption that a title existed and that very little, if any,attention appears to have been paid to proof of title.
The learned District Judge says with reference to decrees in partitionproceedings “ If there is no appeal or if the decree is affirmed in appeal,then the decree is conclusive, provided only that there has been someinvestigation of title”. This passage and the words “some investiga-tion of title " aopear in a context which indicate that they were not usedin the sense of an investigation upon evidence with the object of ascer-taining whether the evidence proved that the parties or some at leastof them had title to the premises or to shares thereof. The words“investigation into title” are traceable to the judgment of de Sampayo J.
GARVIN S.P.J.—Umma Sheefa v, Colombo Municipal Council.
in the case of JayarvcLrdene v. Weerasekera1 where that learned Judgewhen considering the .effect of section 9 said “ The expression ‘ given asherein before provided ’ appears to me to have reference to such essentialsteps as investigation into the title, the order to partition . . .Clearly what de Sampayo J. had in mind was the law as declared in along series of judgments of this Court that, as the final decree in a suitfor partition is final and conclusive of title against all persons whomso-ever, the Court should see that the parties prove their titles strictly, thatno share is allotted except upon proof of title thereto, and that no suchdecrees are entered on admissions or of consent.
In Manchohamy v. Andriss a case decided forty years ago Burnside C.J.emphasized the need for strict proof of title—“ It must be remembered,”he said, “ that a judgment in a partition suit is res judicata against thewhole world and not, like an ordinary judgment, only res judicata amongparties and privies. In a partition suit I hold that it is the duty ofthe Judge to take care that no mere paper title prevails so as to makeit good title against all the world, by reason of a partition decree, andeven if the defendants had contended themselves with admitting theplaintiff’s title, that would not have been enough to entitle her to adecree”. While Lawrie J. added ‘‘I agree cordially that in partitionsuits there should be careful investigation and clear proof of the titlesof the parties who are decreed entitled to shares of the land
The “ investigation into the title ” which de Sampayo J. considersan essential requirement compliance with which is one of the conditionsupon which a decree in a partition case is to be accorded the effect of ajudgment in rem is an investigation made by a Court with the object ofdetermining whether the title of the parties claiming to be the ownersof land has been strictly proved.
An unbroken succession of judgments of this Court has followed the caseof Manchohamy v. Andris (supra) and emphasized this requirement of strictproof of title. There is also a long succession of cases which have estab-lished the proposition that it is open to a party against whom a decreeobtained in a proceeding under the Partition Ordinance is pleaded toshow that it is not a decree “ given as hereinbefore provided ” and has nottherefore the conclusive effect given to such decrees by section 9—seeFernando v. Shewakram *, Dias v. Carlinahamy Ukku Banda v. KiriBanda' and lastly Gooneratne v. Bishop of Colombo" where most of thecases were reviewed and the decision of the Court was that a decree whichproceeded upon consent was not a decree to which the conclusive effectof section 9 can be given.
In D. C. 46,980 there certainly was no investigation of the nature con-templated by the judgments to which reference has been made, savefor the production of the document referred to which proves nothingbeyond the circumstance that the donor claiming to be the owner of thepremises purported in 1871 to convey them to the donee. There was noevidence at all. There were admissions and agreements in respect of the
I 4 C. W. B. 403.* (1919) 21 N. L. R. 112.
* 9 S. C. C. 64.*4 C. W. R. 39.
a (1917) 20 N. L. R. 27.« (1931) 32 N. L. B. 337.
GARVIN SJPJ.—Umtna Sheefa t>. Colombo Municipal Council. 43
rights of the parties inter se, but there was no evidence that they or anyof them were entitled to these premises or to any shares thereof at thedates material to the action.
This case illustrates the need for strict proof of title in the interestsof persons who notwithstanding that they have title to the premises havenot been made parties or given notice, of the action. The parties to theaction were related to each other. The premises are situated in one ofthe busiest parts of the city. They were sold for non-payment of ratesand purchased by the Municipal Council on June 21, 1916. Some at leastof these persons must have been aware of this sale. In November, 1916,about five months after the sale this action was instituted for the parti-tion of the premises. Throughout the proceedings in that case no mentionwhatever was made of the purchase by the Municipal Council and adecree was obtained which it is claimed completely extinguished theCouncil’s title. There can be no doubt that all knowledge of the titleof the Municipal Council was withheld from the Court and a decreeobtained which the Court would not otherwise have entered.
The decree in 46,980 is not in my judgment a decree within the meaningand contemplation of section 9 of the Partition Ordinance and doesnot therefore affect the title of persons who were not parties to thataction. The title vested in the Municipal Council by virtue of the vestingorders of January 28, 1919, must therefore prevail unless the plaintiffscan by proof of ten years’ adverse possession claim the benefit of section 3of the Prescription Ordinance.
In the District Judge’s view of the decree in 46,980 and its effect therewas no need to consider whether the plaintiffs or either of them hasacquired a prescriptive title, and he has not done so. It is argued to us inappeal that by reason of adverse possession by Muheeth the secondplaintiff on behalf of his wife the first plaintiff since January 28, 1919,and until ouster on November 1, 1929, prescriptive title has accrued to thefirst plaintiff.
Muheeth married the first plaintiff in 1918. At that time the premiseswere in the occupation of tenants of Canapathy Iyer to whom RatfiimathUmma had granted a lease for 3 years dated March 7, 1916. . The premisescontinued thereafter to be similarly occupied under leases granted byMuheeth and not by his wife the first plaintiff. Muheeth says from thetime of his marriage his mother-in-law Rahimath Umma permitted himto take the rents from the lessee and that thereafter he leased the premisesand took the rent.
Muheeth claims the benefit of the occupation of these premises by thetenants of the lessees and there undoubtedly is evidence of possessionby him for a few months over the prescriptive period of 10 years.
But was the possession adverse to the Municipal Council and was ituninterrupted.
Whenever property is put up for sale for non-payment of .rates and inthe absence of bidders the Municipal Council buys the property, theevidence shows that the main purpose of the Council is to compel paymentof the rates. It is the practice of the Council in such cases to transfer
GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council.
the premises to the person who was the previous owner thereof on paymentof all arrears of rates and the costs and expenses of the sale and of thetransfer. The Council permits the previous owner to remain in possessionof the premises upon the understanding that it is not to prejudice the titleof the Council—the property during such time is for purposes connectedwith the recovery of rates treated as if it were the property of the formerowner. Possession upon such an understanding is permissive and notadverse. On August 11, 1919, shortly after the decree in 46,980 Rahi-math Umma’s proctor wrote to the Council requesting information asto the amount of the assessment tax due in respect of these and certainother premises up to that date. By the letter 1D17 of August 19, 1919, hewas informed that the amount due was Rs. 4,848.38, the writer addingthat he would be glad to know what arrangements it is proposed to maketo have the matter settled. Mr. Abdul Cader then wrote ID 18, datedOctober 4, 1919, forwarding an order of payment issued by the DistrictCourt for Rs. 2,319.65 which he tendered in payment of the rates due inrespect of the premises with which we are here concerned. Thereply to this was the letter ID 19 by which he was informed asfollows: —
“ This money is accepted on the understanding that the arrears will bepaid in full including all amounts that would have been due to theCouncil according to law, if the property had not been seized and sold bythe Council, as well as any costs and expenses that may have been incurredduring the period of the Council's ownership, and that, thereafter, theprevious owner shall apply to the Council to take the necessary stepsto have the property revested in him.
M This receipt is granted without prejudice to the title of the ColomboMunicipal Council, and the property will remain absolutely vested inthe Council, unless and until the property has been revested in the previousowner by cancellation of purchase
Muheeth says in his evidence that he knew that Mr. Abdul Caderhad sent an order of payment for Rs. 2,319.65 to the Council. “ That ”he says “ was done in connection with the negotiations which Mr. Caderwas carrying on in respect of these premises with the Municipality. Idid not know that the property was vested in the Council at that time.I knew that it had been sold at the instance of the Council but I did notknow that it had been vested in the Council. I came to know that veryshortly afterwards ”. He admitted later that he knew the premises hadbeen purchased by the Council.
Mr. Abdul Cader, the agent of Rahimath Umma, had full knowledgeof’the position of the Council and its title and that the payment he madewas accepted on the understanding set out in the letter ID 19. AndMuheeth, her son-in-law, was aware of the negotiations being carried onby Mr. Abdul Cader and was doubtless aware also that the premiseshad been sold and vested in the Council. With the knowledge they thushad of the sale and purchase by the Council the sale under the decreewas carried through and the certificate of sale obtained on June 7, 1920.It appears from the letter of the Financial Assistant to the Chairman of
GARVIN S.P.J.—Umma Sheefa v. Colombo Municipal Council.
the Council 1D20 of January 8,1921, that Mr. Abdul Cader had an interviewwith him in regard to these and other properties on behalf ofhis clients.
The letters 1D1 of February 7, 1922, and 1D2 of August 25, 1922,show that the second plaintiff Muheeth was then in direct correspondencewith the Council, whose letter 1D3 of September 6, 1922, is an intimationto him of the fact that the premises were vested in the Council coupledwith a threat that unless a remittance in settlement was received withoutfurther delay the Council will proceed to collect the rents. On Novem-ber 20, 1922, a further letter was written to Muheeth informing him thatthe Council declined to waive warrant costs,, refusing further time forpayment of rates long overdue and intimating that steps would be taken tocollect rents on behalf of the Council. As a matter of fact the Council didproceed to collect rents. This is an act which the Council could only do byright of its ownership of the premises. Muheeth by his letter of December7, 1922, (1D4) wrote forwarding a cheque and asking the Council for “ aretransfer of the property He proceeded to “ put ” his case for a waiverof warrant costs referred to the Council's notice to the tenants to pay rentto the Council from January 1, and asked that the Council’s officers beinstructed to cancel the notice. Far from setting up a title adverse to theCouncil and objecting to this trespass upon his righ, Muheeth asks for a“ retransfer of the above property ”, thus acknowledging that the title wasin the Council and asking that the Council’s officers be directed to withdrawthe notices served on the tenants.
The Council's reply 1D6 of December 14, 1922, informed him that thenotices were withdrawn, that a sum of Rs. 135.15 in excess of the amountdue as rates had been collected and that the excess would be retainedas a deposit against Messrs. Julius & Creasy’s fees for report on title.Muheeth was requested to forward title deeds and extracts of encum-brances to enable the sanction of the Council to be obtained for theretransfer. Muheeth replied by his letter 1D7 of December 19, 1922,again stating that the officers of Council had not informed the tenantsthat the notices had been withdrawn and asking that these be withdrawn.He again asked for a refund of the Rs. 246.31 collected by the Counciland undertook that “ the remaining taxes, fees, &c., will be paid byhim ”.
Muheeth was fully alive to the claim of title by the Council. Heacknowledged it by asking for a retransfer. He was aware of the assertionof the Council’s rights by the Council, but at no time set up a claim oftitle in himself. He appears thereafter to have paid the rates regularlyfor some time. On October 18, 1926, the Council by its letter of thatdate 1D8 informed him that it had decided that “if a retransfer of theabove property in favour of the person who would have been the ownerbut for its being vested in the Council is not obtained within six monthsfrom date hereof, steps will be taken thereafter to sell the same out-right ”, He was accordingly requested to furnish title deeds and extractsof encumbrances so as to p'ermit of the retransfer being executed withinthe time specified. On March 19. 1927. Muheeth wrote with reference
GARVTN S.P.J.—Umma Sheefa v. Colombo Municipal Council.
to these premises inquiring what the charges were for the reconveyanceof the premises “ in one block ” in his favour and stating that the titledeeds consist of (1) a certificate of sale granted by the District Court ofColombo in a partition case in favour of his mother-in-law and (2) a deedof transfer by her in favour of his wife.
He never even then gave any indication that he claimed to havea superior title or that he proposed to or was holding adversely. Onthe contrary the letter and the rest of the correspondence show that hefully acknowledged the title of the Council.
The Council by its letter ID 10 requested a remittance of Rs. 42 withhis title deeds, &c., for report on title on the distinct understandingthat he would pay any charges on account of retransfer in excess of theamount of the deposit.
Muheeth replied by his letter ID 11 of March 26, 1927, forwardingthe sum of Rs. 42 and the title deeds ; he added that the extracts ofencumbrances had been applied for and would be forwarded andrequesting that the boundaries stated in the title deeds be given in thedeeds of retransfer.
On November 2, 1927, the Council by its letter 1D12 again intimatedto Muheeth its decision to retransfer the properties and stated the conditionwith which he must comply if he desired a retransfer.
He did not however do what he was asked to do, and on November 23removed the title deeds which he had sent to the Council.
He did not even then claim that he had a superior title. Thereafterhe was seen on three occasions by Inspector Pieris and warned that ifhe did not obtain a retransfer the premises would be sold. He saidon each occasion that he would take steps to obtain a reconveyance,but did nothing. On October 2, 1928, the Council wrote him theletter ID 14 informing him that as he had failed to obtain a retransfersteps would be taken to sell the premises outright. He vouchsafed no'reply to this letter and the premises were sold. At the sale the seconddefendant purchased the premises. When Muheeth heard of the salehe sent a proctor, Mr. de Witt, to ask the Chairman to cancel the salebut it was evidently then too late. Even then he did not set up anysuperior title. The premises were in due course conveyed to the seconddefendant by a deed attested by Mr. Abdul Cader who at the time of thesale by the Council was acting for the second defendant, and he wason November 1, 1929, placed in possession of the premises.
Muheeth was fully aware of the sale of these premises by the Councilfor non-payment of rates. He admitted he knew that it had been pur-chased by the Council. He was aware also of what he himself refersto as the negotiations being carried on by Mr. Abdul Cader with theCouncil in connection with these premises on behalf of his mother-in-lawRahimath: Umma, who later executed a deed of gift of the premisesin favour of his wife, the first plaintiff. Mr. Abdul Cader, RahimathUmma’s proctor, was informed of the conditions on which the Councilwould accept payment of rates, and there is no reason to doubt thatMuheeth was fully aware of all that had taken place. After a time
POYSER J.—Urnma Sheefa v. Colombo Municipal Council.
proctor Abdul Cader appears to have dropped out and Muheeth took upthe correspondence with the Council. As far back as December 7, 1922,he asked for a retransfer of the premises thus showing that he acknowl-edged the superior title of the Council and fully realized his position.When the Council collected the rents from the persons in occupation,his conduct was not that of a person who was holding adversely. Indeed,right up to the sale to the second defendant and even immediatelythereafter his conduct is only consistent with that of a person whorealized that his possession was permissive, and that the owner of thepremises was the Council. There is no evidence of adverse and uninter-rupted possession such as is required by section 3 of Ordinance No. 22of 1871. Throughout the Council had shown him the utmost considera-tion of which he took the fullest advantage. In the end he capriciouslywithdrew his title deeds and broke off negotiations with the Council.A payment of approximately Rs. 300 would have vested in him orrather his wife the absolute title which the Council gets by virtue ofsection 146 of Ordinance No. 6 of 1910. The Council in the end madeevery effort to pass this title on, but the second plaintiff, though herepeatedly promised to see to the matter, took no steps to obtain a re-conveyance. When the Council was driven at last to sell he seemsto have realized the gravity of the situation and made efforts to procurea cancellation of the sale. These efforts came too late and failed. Thesecond plaintiff has only himself to thank for the position in which hefinds himself.
The judgment of the Court below must be set aside and the plaintiff’saction dismissed as against both defendants. The second defendantdid not appeal. It was said by counsel on his behalf that certain com-munications took place between the second defendant and the Counciland while these were going on the time for appeal ran out.
The interests of the two defendants are largely identical and thesecond defendant is in the circumstances entitled to relief which he hasbeen granted by the direction that the action shall be dismissed asagainst both defendants.
The plaintiffs will pay the first defendant’s costs both here and below.Poyser J.—
There is very little that I can add to my brother Garvin’s judgmentwith which I entirely agree. The principal point in this appeal iswhether the decree in D. C. Colombo, No. 46,980, is one for which theconclusive effect of section 9 of the Partition Ordinance may be claimed.The necessity for a full investigation and for strict proof of title havebeen emphasized in a number of judgments of this Court. In the case-of Peris v. Perera1 the following passage occurs in the judgment of-Bonser C.J. at page 367:—“ Whether or not the judgment be bindingon the true owner who is not a party to the suit, it is obvious that theCourt ought not to make a decree, except it is perfectly satisfied thatthe persons in whose favour it makes the decree are' entitled to theproperty. The Court should not, as it seems to me, regard these actions
1 1 N. L. B. 368.
POYSER J.—Uvrvma Sheefa v. Colombo Municipal <^6utt&l.
as merely to be decided on issues raised by and between the psuties.The first thing the Court has to do is to satisfy itself that the plaintiffhas made out his title, for unless he makes out his title, his action cannotbe maintained : and he must prove his title strictly, as has been frequentlypointed out by the Court. Collusion between plaintiffs and defendantsis always possible in these cases, and therefore the District Judge shouldtake care that the inquiry is not a perfunctory one. It is only after heis reasonably satisfied that all the owners who can be found are partiesto the action, using, if necessary, the power given him by section 18 ofthe Civil Procedure Code, that he should make his decree declaringthat the parties are entitled to certain aliquot shares, and directing apartition or sale, as the case may be …. ”
In the case of Mather v. Thamotheram Pillai1 it was held “ that apartition suit is not a mere proceeding inter partes to be settled of consent,or by the opinion of the Court upon such points as they chose to submitto it in the shape of issues. It is a matter in which the Court mustsatisfy itself that the plaintiff has made out his title, and unless hemakes out his title his suit for partition must be dismissed. In partitionproceedings the paramount duty is cast by the Ordinance upon theDistrict Judge himself to ascertain who are the actual owners of theland as collusion between the parties is always possible, and as theyget their title from the decree of the Court, which is made good andconclusive as against the world, no loopholes should be allowed foravoiding the performance of the duty so cast upon the Judge
The principles laid down in these cases have been followed in allsubsequently reported cases on this point, the latest of which is Goone-ratne v. Bishop of Colombo =.
In D. C. Colombo, No. 46,980, the inquiry was certainly a perfunctoryone, and having regard to the fact that the parties to the action wererelated to one another, the possibility of collusion cannot be excluded,for it is certainly remarkable that apparently none of the parties to thisaction had any knowledge of the fact that the premises in questionhad been sold for non-payment of rates before the action wasinstituted.
In my opinion as there was no proper investigation into the title inthis action, thedecree does not affect thetitleof persons who were not
parties to theaction, andtherefore thetitlevested in the Municipal
Council must prevail.
The question whether a prescriptive title has been acquired againstthe Muncipal Council is exhaustively dealt with by my brother Garvinand I entirely agree with him and for the reasons he has stated thatsuch a title has not been established.
I agree thatthe appealshould be allowedand the plaintiffs’ action
dismissed as against bothdefendants. Ialsoagree with the proposed
order as to costs.
1 6 N. L. R. 246.
a 32 N. L. R. 837.
UMMA SHEEFA v. COLOMBO MUNICIPAL COUNCIL