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ARNOLISA et al. v. DISSAN et al.
C. B., Matara, 5,061.
Civil Procedure Code, a. 12—Action for an undivided share—Joinder of co-owners as plaintiffs.
Section 12 of the Civil Procedure Code is intended to apply to a caseof a mere trespasser, and not to apply to a case where one co-ownerexcludes another co-owner from possession.
Semble, per Bonser, C. J.—Section 12 is confined to a possessory suit.
TN this case six plaintiffs sued three defendants, averring that-l- they (the plaintiffs) were owners respectively of t^WW> vfTTT5-, ttt> and riir parts of two lands, and that the first, second,third, and fourth plaintiffs were further entitled to dhr, A. tV>and sV, parts “ of the planters’ half share of the old plantationsof the said lands.” The devolution of title by inheritance inregard to each of the six plaintiffs was also set forth. Pre-scriptive possession was alleged, as also ouster by defendantswho were alleged to be also entitled to certain shares. Plaintiffsprayed that they may be declared entitled to the said shares.
The defendants claimed the lands also by inheritance andprescriptive possession.
The Commissioner made a decree in accordance with theplaintiffs’ prayer.
Maartensz, for appellants.
Pieris, for plaintiffs, respondent.
This appeal raises a question as to the meaning of section 12 ofthe Civil Procedure Code.
Six persons who claim to be entitled to various shares in agarden brought an action against three persons who were co-ownersand who it was alleged had excluded them from the enjoymentof their shares of the premises. The interests of the parties havebecome very much subdivided, so much so that the denominatorof some of the fractions claimed by the plaintiffs was 16800.
In 1879 it was decided by this Court by Piiear, C.J., andBerwick, A.J. (in a case reported in 2 'S. C. C. 148), that an actionof this sort could not be maintained unless the co-sharers weremade parties to it, and that, while it might be competent to one ofseveral co-owners to bring an action against a mere transgressor
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September 17.Bomber, C.J. who interfered with his possession without joining the other co-owners as co-plaintiifs, it was not competent, where the defendantwas not a mere trespasser, but was a co-owner, to maintain suchan action in the absence of some of the co-owners.
In 1886 that decision was followed by a majority of this Court(7 8. C. G. 109).
In 1889 the Civil Procedure Code was passed, and section 12deals with this question and provides “ that where two or more“ persons are entitled to the possession of immovable property as‘‘ joint tenants or tenants in common, one or more of them may“ maintain an action in respect of his or their undivided shares in“ the property in any case where such an action might be main-“ tained by all.” Now that seems to be intended to apply to a caseof a mere trespasser, and not to apply to a case where one co-ownerexcludes another co-owner, because in that case the action couldnot be maintained by all, for a man could not sue hithself.
It is unnecessary to decide whether section 12 has reference to apetitory action, or whether it is not confined to a possessory action.The words “ entitled to the possession of immovable property ”rather point to the restriction to a possessory action, otherwisethe words “ the possession ” are surplusage.
It is quite clear that section 12 does not repeal the practice aslaid down by this Court in the judgments to which I havereferred, and I therefore am of opinion that the present action isnot maintainable in its present form, and it should be sent backto the Court of Requests in order that the other co-owners may bejoined as plaintiffs, or, if they decline to become co-plaintiffs, thatthey may be made defendants and a partition prayed. Costs toabide the event of the action.
ARNOLISA et al. v. DISSAN et al