102-NLR-NLR-V-19-APPUHAMY-v.-SAMARANAYAKE.pdf
( 403 )
Present; Ennis J. and De Sampayo J.
AFPUHAMY v. SAMAKANAYAKE.
24—D. C. Negombo, 11,644.
Plaintiff's interest not disclosed by parties to a partition action—Actionfor damages against parties to partition action by plaintiff.
A person claiming to be the owner of a piece of land which hadbeen partitioned by others in a proceeding under Ordinance No. 11of 18B3 cannot claim damages under section 9 of the Ordinancefrom the parties co the partition action if they acted bona fide andin ignorance of the rights? of the plaintiff.
If any owner or co-owner is aware of the pendency of the partitionaction and abstains from coming forward he cannot afterwardsclaim damages.
T
HE plaintiffs in this case alleged that they were the ownersof a land Moragahakumbura, and that the defendants had
fraudulently represented to the District Court that they (defendants)were the absolute owners of the land, and had obtained a partition' decree in D. C. Colombo, 9,434; the plaintiffs claimed from thedefendants damages (Bs. 600). The District Judge dismissed, plaintiffs’ action. They appealed.*
SamaTaioickTeme (with him W. H. Per era),for plaintiff,
appellant.
F. de Zoysa, for first defendant, respondent.
T. de Silva (with him M. W. H. de Silva), for the second to fifthdefendants.
Cur. adv. vult.
1917.
( 404 )
March 15, 1917.EnniS J.—
This was a claim to recover damages under the proviso to section9 of the Partition Ordinance.
The section, after providing that the partition decree shall beconclusive evidence of title, runs:“ Provided that nothing herein
contained shall affect the right of any party prejudiced by suchpartition or sale to recover damages from the parties by whose act,whether of commission or omission, such damage had accrued.”
The plaintiffs claimed that their predecessor in title granted ausufructuary mortgage to Ausadahamy in 1868 of a land whichMetuhamy held (P 1) ‘ ‘ by giving Government one-fourth'share. ”The mortgage does not appear to have been registered, and onAusadahamy’s death over twenty years ago the land passed to hisheirs, who obtained a partition decree for this and other land in 1914.The principal plaintiff, Carolis, said that he heard that a partitioniaction (had been brought after his letter of demand, but was notaware that the land now claimed was included in the action. Fromthe fact that Carolis, who i$ a process server, did not intervene inthe action, the learned Judge has inferred that he did not becomeaware of the mortgage bond till long after the- partition decree hadbeen entered. This inference is contrary to Carolis’s own evidence.The parties to the partition action were unaware of the bond, andthe omission to mention it was therefore not deliberate. Thelearned Judge has found that there is a strong probability thatAusadahamy possessed on some informal sale or acquired pre-scriptive title. He has presumed an ouster, and I am unable to saythat he is wrong. Moreover, I think Carolis’s statement that he didnot know that the land was being partitioned is extremely doubtful;if he knew and stood by, he is bound by the partition decree.Whether an ouster be presumed, or whether the plaintiffs are estoppedby their non-intervention in the partition action, the decree appealedfrom is right, and I would dismiss it, with costs.
De SAfrfPAYO J.—1
The defendants in this action are the plaintiffs and defendantsin the partition action No. 9,434 of the District Court of Colombo,in which the land Morgahakumbura was partitioned among them.The plaintiffs, alleging that they were the true owners of the land,and that the defendants obtained the partition decree by fraudu-lently representing to the said District Court that the defendantswere the absolute owners thereof, claim from the defendantsBs. 600 as damages. The proviso to section 9 of the Partition Ordi-nauce enables any persons prejudiced by the partition or sale torecover damages from the parties “ by whose act, wether ofcommission or omission, such damages had accrued.” It seems to
1M7.
Ajppuhamy
v. Samara-nayake
#
(405 )
me that the set of commission or omission here referred to is aconscious act, that is to say, an act done with knowledge of thelight of the party prejudiced thereby. Section 2 of the Ordinance,which requires the plaintiff or plaintiffs to state certain particularsin the plaint, including the names and residences of all the co-ownersand mortgagees, expressly provides that this shall be done “ so faras the said matters or things or any of them shall be known to himor them.'* I do not think that the parties to a partition actionwill he liable in damages if they acted bona fide and in ignorance ofthe rights of any third party. The plaintiffs in this aetion appear,by alleging fraudulent misrepresentation, to have recognized thisview of the Ordinance. Mr. Saxnarawiokreme suggests that thedamages provided for were really compensation for the value ofthe interest in the land of which the party suing for damages wasdeprived, and which by the decree were given to parties who werenot really entitled to it, and that, therefore, it did not matter whetheror not there was fraud or negligence. The first part of this pro-position may be accepted, but the second part does not necessarilyfollow therefrom. Moreover, if any owner or co-owner himself isaware of the pendency of the partition action; and abstains fromcoming forward. I do not know on what principle he can afterwardsclaim damages. The case of the plaintiffs in this action is that theirancestors were entitled to the land, an had given an usufructuarymortgage to Ausadahamy, under whom the defendants' claimed title,and that they sent a letter of demand to the defendants for the pur-pose of redeeming the land. The first plaintiff, who is practicallythe only witness called fer the plaintiffs, said that they heard ofthe partition action after the letter of demand was sent. He is aprocess server, and was himself the Fiscal’s officer who served the■notices in the partition action. The circumstances satisfy me thatthe plaintiffs knew that the partition action affected this land, butfor some reason or other did not intervene. I agree with the finding-of the District Judge that Ausadahamy and the defendants had longSince prescribed for the land against the mortgagors and their heirs.I may add that judicial decisions, so far as they go, appear to putthe samo construction on section 9 of the Ordinance as Iabove ventured to suggest. In G. B. Matara, 1,070 1 in which a de-fendant in a partition action was sued for damages, Lawrie J. in-dismissing the action said:“ It is not shown that any duty lay on
the defendant to mention the present plaintiff, and, indeed, the-present plaintiffs knew of the pending of the partition suit and volun-tarily abstained from being parties.” D. C. Jaffna, 1,907,2 was a casein which certain parties to a partition action and' a „ stranger to theaction were sued for damages and the Court gave judgment on theground of fraud. I am not aware of any case in which an actionhas been ‘ held to lie against a party to a partition action simply
1917.
Db SaxpayoJ.
Appuhamyti. Samara-nayake
1 S C. Min., Mar. 26, 1901.
31-1,
2 S. C. Min., Feb. 24, 1902.
( 406 )
1017.
Db SaufatoJ.
A.ppuhamyv. Samara-nayake
because he was such party and got a portion the land. This iswhat the plaintiffs seek to maintain in this action, since, althoughin the plaint they alleged fraudulent misrepresentation, theyabandoned that position, and no issue was stated at the trial, andno evidence given on that point.
I think the appeal should be dismissed, with costs.
Appeal dismissed.