099-NLR-NLR-V-25-CASSIM-v.-DE-VOS-et-al.pdf
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Present: Ennis and De Sampayo JJ.
CASSIM v. DE VOS et at.
363—D. C. Grille, 20,259.
Partition—Plaintiff aware of claim of another party—Omission to make
Mm a party—Action for damages—Ordinance No. 10 of 1863, s. 9.
A knowing that B claimed to be the owner of lot X institutedan action for partition of a piece of land including lot X, and ob-tained a partition decree without making B a party.
Held, that B was entitled to claim damages from A under section9 of the Partition Ordinance.
An action under section 9 need not be based on any wilful orfraudulent act, but may be based on any act which gives vise to
'JpHE facts are set out in the judgment.
Samarawichreme’ for the first defendant, appellant.
Soertsz, for the second defendant, appellant.
B. F. de Silva, for plaintiff, respondent.
March 27, 1924. Eknis J.
This was an action for damages under section 9 of the PartitionOrdinance. The plaintiff asserted that his land had been incorpo-rated in a land which was partitioned at the instance of the defend-ants in action No. 19,333. In that action the then plaintiffsmoved to partition the land Horagaskela. The plaintiff says .thatwhat was included in that land was a small portion bearing thename Horagaskela-addara. He says that the plaintiffs in caseNo. 19,333 were well aware of his claim, because in the previousaction No. 15,817, which was an action for partition at the instanceof one Stephen Henry Dhanayake, a son of the second defendant,he made a claim and intervened. That previous action was dis-missed as the then plaintiff had no title. The present plaintiff’sclaim in intervention in that action was, however, taken intoaccount, and on the survey made for the purpose of that action hisclaim was marked lot D as shown on plan No. 852 marked P 1in the present case. The learned. Judge has found as a fact thatthe present defendants were aware that the plaintiff claimed to beentitled to lot D, which he said was a part of the land partitionedin case No. 19,333. On the question of title, the learned Judgefound in favour of the present plaintiff and awarded him damagesin respect of lot D. The present appeal is from that decree.
1924.
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1924.
Emus J.
Cassim v.De Vos
It was next urged with regard to title that the plaintiff had hadno effective possession. On this point we have the evidenoe ofAbdul Cader, one of the predecessors in title of the plaintiff, that heplanted for himself the coconuts on lot D. Abdul Cader has identi-fied the land, and his evidence seems to show beyond questionthat there has been effective occupation by one of the plaintiff’spredecessors in title. It was urged that the coconuts on lot D arein line with the coconuts on the adjoining property which belongsto the defendants. The mere fact that they run in the same lineis not conclusive that the two lands are one, because we find that thetrees on lot D are of different age from the trees on the adjoiningland. The condition of the trees and the formation of the landseem to indicate that there is a strong probability that lot D wasseparately owned and separately planted as stated by Abdul Cader.In the circumstances there is no reason to think that the learnedJudge is wrong in holding that the plaintiff has had effectiveoccupation of lot D, and the learned Judge has gone further andheld that the plaintiff has continued to occupy so as to prevent aprescriptive right arising.
We now come to the principal argument in this case which isbased on the question of law. It was urged on appeal that thedefendants were not liable to an action under section 9 of thePartition Ordinance. In this respect two cases were cited to us.The first case is Fernando v. Fernando.1 In that case the. ChiefJustice said that it would seem to be clear that no action lies undersection 9, except upon proof of the breach of a legal duty, andfurther that on the authority of the case of Appuhamy v. Samara-nayake2 that the position must be acpepted that the plaintiff is notbound to state the names and residences of persons claiming to beco-owners whose title he in good faith disputes, or, in other words,that the parties to a partition action will not be liable in damagesif they acted bona fide in ignorance of the rights of any third party.The Chief Justice went on to say that the principle of the earlierdecisions seems to apply to claims which, though known to thepetitioning party, are in good faith repudiated. Inasmush, how-ever, as in that case it was found on the facts that the action ofthose seeking to partition was not bona fide, and that they were wellaware of the fact that the plaintiffs had a mortgage and deliberatelyomitted to disclose it in their action, it would seem that the ex-pression of opinion on the law was not necessary for the purposeof the case in the facts. My brother De Sampayo took part in thesame case, but did not follow the lines of the Chief Justice. Hisdecision was based upon the fact that the plaintiffs in the partitionaction were aware of the existence of the mortgage. The earliercase of Appuhamy v. Samaranayake (supra) is also not a completeauthority for the proposition urged on behalf of the appellant on1 (1913) 20 N. L. R. 410.* (1917) 19 N. L. R. 403.
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the appeal. In that case the parties seeking damages appear tohave known all about the partition action at the time it was pro-ceeding, but stood by and did nothing. In a sense, therefore,they would have contributed to the loss which fell upon them owingto the judgment in the partition action. In that case my brotherDe Sampayo went into a number of circumstances connected withactions under section 9 of the Partition Ordinance, and expressedthe opinion that parties to a partition action would not be liable indamages if they acted bona fide and in ignorance of the rights ofthird parties. It is unnecessary to look into that point, becausein the present case the facts, as found by the learned Judge, are thatthe plaintiffs in the partition action knew that the present plaintiffhad a claim and had asserted that claim in the previous action.Por the appellants it was sought to minimize the effect of this bysaying that the plaintiffs in the partition action did not take theclaim of the present plaintiff seriously. I cannot help feeling thatan action under section 9 need not be based on any wilful or fraudu-lent act which' might be concluded from certain observations insome earlier judgments which have been cited in the two casesalready referred to—observations which appear to have been madein passing rather than an observation which have been based upona consideration of the point—but may be based on any act whichgives rise to damage. It is to be observed that section 9 does notintroduce any new form of action. It merely reserves a rightwhich the parties had prior to the passing of the Partition Ordinance.Prior to the passing of that Ordinance, a party claiming land hadthe right to bring an action to vindicate his title.
It was urged on appeal that he had no right to bring an actionfor the value of the land. I am doubtful if this is correct, becauseit would seem that actions for the recovery of a specific thing, forinstance, actions for specific performance in contracts, actions forthe recovery of land, or Roman-Dutch law actions rei vindicatio,always had behind them the alternative claim for the value of thething lost. In the case of land it may not have been necessaryalways to mention the value, as the land itself could be recovered,but even if such a case where some portion of the land had beenalienated beyond recovery, as, for instance, when gems and. mineralshad been removed, one finds coupled with an action for title or torecover land, a claim for the value of that portion of the land. Itwould seem then that the Partition Ordinance by making a specificprovision reserving the rights of a_party to claim damages reservedthis alternative claim which a party had prior to the passing of thePartition Ordinance. The Partition Ordinance was enacted toremove from the land many of the shackles which tied it, and toprovide that the decision of the Court that a particular portionof the land partitioned should belong to an individual should begood against the whole world so far as the land itself was concerned.
1924.
Ennis J.
Cassim v.De Vos
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1024. That individual could deal with the land and pass a good title.
But if it turns out subsequently that he, in fact, at the time of the
partition had no title, the person having the title could not recover
the land, but recover only the value of the property which had beenlost by the terms of the Partition Ordinance.
In the circumstances I am of opinion that the plaintiff's rightto bring this action arose on the act of the first defendant in insti-tuting the partition action without making the present plaintiff aparty to that action. It is unnecessary to consider whether the actof the first defendant was fraudulent or wilful. It is sufficient thathe caused the damage, and that it was done knowing that thepresent plaintiff had preferred a claim to the land.
The only other point urged by the first defendant on appeal wasthat the present plaintiff could not claim more than a half share ofthe value of the portion of land which had been lost owing to thepartition, inasmuch as deed P 5 shows that Mohideen is a co-purchaser with him. Mohideen gave evidence in this case and saidthat he owed the plaintiff money, that he did not wish to be made aparty to the action as he was too poor to spend money, and thathe wished that any sum that may be due to him should go to thepresent plaintiff. He appears to have made this assignment in thecourse of the case with some formality, but from what he says itwould seem that he intended the same assignment to take effectprior to the institution of the action, for he says he allowed theplaintiff to possess the land in lieu of the money he had borrowedfrom him. In the circumstances of this case it is unnecessary togo into the legal rights of the parties on this point. If the defendantshave been enriched at the instance of the plaintiff and Mohideen,it is not in their mouth to contest Mohideen's disposition of themoney which is to be divided if the claim in respect of lot D is good.
The second defendant has appeared separately on the appeal,although she joined the first defendant in the appeal which has beenfiled. It was urged that her position was different to the firstdefendant's position. The learned Judge, however, has found, as afact, that she or her proctor was aware of the plaintiff's claim in theprevious partition action, and that being so the plaintiff’s right toclaim damages would lie against her as well as against the firstdefendant under section 9 of the Partition Ordinance. It transpires,moreover, that she is the mother of Stephen Henry Dhanayake,who was the plaintiff in the partition action in which the presentplaintiff intervened and presented a claim. In the circumstancesthere is no reason to interfere with the judgment under appeal infavour of the second defendant. In the circumstances I woulddismiss the appeal, with costs.
Be Samfayo J.—I agree.
Appeal dismissed.