039-NLR-NLR-V-35-ELIYATAMBY-et-al.-v.-KANAPATHY-VEERAGATHIE.pdf
Eliyatamby v, Kanapathy Veeragathie.
211
1934
Present: Macdonell C.J. and Garvin S.F.J.
ELIYATAMBY et al. v. KANAPATHY VEERAGATHIE.
23—D. C. Jaffna, 25,349,
Partition—Action to partition more than one land—When such proceeding ispossible—Same set of owners in same proportion of shares—Intention ofOrdinance.
It is not contemplated by the provisions of the Partition Ordinancethat any more than one land will be partitioned in one proceeding.
An exception may be made in cases in which more than one allotmentof land are held in common by the same set of co-owners in the sameproportions.
212GARVIN SJPJ.—Eliyatamby v. Kanapathy Veeragathie.
^^PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera (with him Chelvanayagam), for defendant, appellant.
Gnanapraga&am, for plaintiffs, respondents.
N. E. Weerasooria, for first and fourth to seventh added defendants,respondents.
January 24, 1934. Garvin S.P.J.—
In this proceeding the plaintiffs sought to obtain a partition of twoseparate allotments of land—the first of which is depicted in plan bearingNo. 422 filed at page 97 of the record and the second being the lot No. 1 inthe plan filed at page 110 of the record—upon the footing that these twoallotments of land belonged to the plaintiffs and the defendants in theproportions of 1|3 to the first plaintiff, 1|3 to the second plaintiff, and 1|3 tothe defendant. The defendant agreed to the partition of the first allotment.In regard however to the second allotment he took the objection that itwas not competent in one proceeding under the Partition Ordinance toseek the partition of more than one land and pleaded further that lot No. 1in the plan referred to was not a separate entity, but formed with the lots2 to 9 shown on that plan one undivided land which belonged in common tothe plaintiffs, the defendants, and several others. He indicated certain otherswho were entitled to interests in what he alleged was the larger commonland of which lot 1 was a part and these were made party defendants.
At the trial the main point upon which the parties concentrated wasthe question whether lot 1 was a separate entity or whether as pleadedby the defendant it was part of a larger land held in common. Theposition of the plaintiffs and of the added parties was that two contiguousportions of land to which their predecessors in title had in the remotepast been entitled in common had been consolidated and then dividedup amicably between them so that there was allotted to each set ofco-owners a separte lot, and that at this amicable division the lot 1 wasassigned to those through whom the plaintiffs and the defendants nowclaim. They alleged that since this division which was effected over 30years ago, the various co-owners to whom these several lots had beenassigned, had each held the lot assigned to him in severalty to the exclu-sion of the others and thereby prescriptive rights to the lots in severaltyhad been acquired.
The learned District Judge held in favour of the plaintiffs. Accordinglyhe treated the lot 1 as a separate entity and decreed a partition thereofbetween the plaintiffs and the defendant in equal shares. The defendanthas appealed and it has been contended on his behalf that, even upon thefinding of the learned District Judge that lot 1 was a separate entity,his judgment is wrong for the reason that under no circumstances can thedeeds upon which the plaintiffs claim their interests be held to haveconveyed to each of them a 1|3 share of the lot 1.
The first plaintiff claimed his interests upon a deed No. 3,191 of May13, 1929. The second plaintiff acquired her interests upon a deedNo. 3,920, also dated May 13, 1929. Now these deeds so far as they relateto the claim of the plaintiffs to interests in lot 1 in the plan filed at 'page110 convey not an undivided 1|3 share of the lot 1 but a 1(3 of 1|6 of a portionof land in extent 3 lachams and 1|3 of 113 of a land in extent 44 lachams.
Fernando v. SiIva.
213
These are the two portions of land which together form the area coveredby the lots 1 to 9 which the defendant maintains was held in common.Proceeding upon the assumption that the common possession of thislarger land had been resolved by amicable settlement as alleged by theplaintiff and found by the learned District Judge, the deeds under whichthe plaintiffs claim do not and cannot be construed to be effective convey-ances to each of them of a 1/3 share of lot 1. Doubtless they are effectiveas conveyances of some small fractional share in the lot 1 but it is impossi-ble in the present state of the record to determine with accuracy thatfractional interest. We have no means of ascertaining whether lot 1comprises portions of the two allotments referred to in the deed or whetherthe whole of lot 1 was carved out of one of these portions. In theabsence of such information it is not possible to ascertain the extentof the interest which passed on these deeds. It is quite clear, however,that there are substantial interests in this lot 1 outstanding in thepredecessors in title of the plaintiffs.
The decree therefore in its present form cannot stand so far as it relatesto the lot 1.
The provisions of the Partition Ordinance considered as a whole stronglyindicate that it was the intention of the legislature to provide a procedurefor resolving common possession of one land into possession in severalty.It is not contemplated that in one proceeding any more than one landwill be partitioned. There are instances in which it has been foundpossible to make an exception in cases in which more than one allotmentof land are held in common by the same set of co-owners and suchpresumably is the reason why in this proceeding it was sought to partitiontwo separate lands. But this case illustrates the danger of seeking apartition of more than one land in one proceeding for the trial has disclosedthat there are others besides the plaintiffs and the defendant who areentitled to interests in lot 1. It is no longer possible therefore to treatthis as one of those cases in which partition of more than one land may bepermitted in one proceeding upon the ground that each of the lands isheld in common and in the same proportions, by the same set of co-owners.
The judgment of the learned District Judge will therefore be affirmedso far as it relates to the land depicted in plan No. 422; but so far as itrelates to the lot No. 1 in the plan filed at page 110 it cannot be sustainedand must be set aside. A partition of that allotment must be sought inanother action. The appellant is entitled to the costs of this appealwhich will be paid by the plaintiffs, but he must pay the added defendants-respondents their costs both here and below.
Macdonell C.J.—I concur.Set aside.