050-NLR-NLR-V-07-FERDINANDIS-v.-DON-DAVITH.pdf
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1899.March 2.
FKRDINANDIS v. DON DAYTTH.
D.C., Matara. 1616.
Partition Ordinance No. 10 of 1863, s. 19—Piecemeal determination of issues asto title between several co-owners—No appeal till general preliminarydecree entered.
Where several separate contests as to title arise in an action forpartition, and are disposed of at separate hearings,—
Held, that though each order of the Court determining the titlebetween parties is appealable under section 19 of the Partition Ordi-nance, 1863, yet the progress of the suit should not be interruptedby appeals in which the greater number of the parties to the suit haveno interest.
The Supreme Court is in the habit of refusing to entertain appeals
against orders, which arc not conclusive between all the parties, but will
aVait the entry of the general preliminary decree.
The. decision of the lower Court in each piecemeal investigation of title
should not take the .form of a decree.
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N this case the plaintiff brought his action on 2Gth October,1895, claiming 96/360 of the field tolwattegodella, and he asked
for partition thereof, assigning^ the other shares among the eightdefendants.
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The seventh defendant* however, claimed adversely to thesecond defendant the share assigned to the latter.
The ninth, tenth, and eleventh defendants came in on 31stJanuary, 1896, as added parties, claiming adversely to the plaintiffthe same share he had claimed.
The twelfth to eighteenth defendants came in on 25th August,1896, as added parties, claiming shares adversely to some of theoriginal parties.
Three other defendants, the twenty-sixth, twenty-seventh, andtwenty-eighth were added by the Court during the course of thehearing on 31st July, 1899. and 17th August, 1899.-
The case came before the District Court on 7th January, 1897,for trial of the issues raised (1) between the plaintiff and theninth, tenth, and eleventh defendants; (2) between the seventhand second defendants.
The Judge" recorded that it was not clear what the issues werebetween the twelfth to eighteenth defendants. He heard evidence,but found that further information was necessary as to the pedigreeof the parties whom he ordered to be produced. He proceeded,however, to dispose of the issue between the plaintiff and theninth, tenth, arid eleventh defendants which depended on docu-ments and possession only.
Judgment was given in favour of the plaintiff on this issueon 21st January, 1897, and a decree was entered declaring theplaintiff entitled, as against the ninth, tenth, and eleventh defen-dants, to the share in contest between them.
An appeal was filed by the ninth, tenth, and' eleventh defend-ants, but was dismissed by the Supreme Court on 19th May, 1897,for default of appearance.
Further proceedings took place in the District Court on 15thDecember, 1897, when the Judge framed the issue between thesecond and seventh defendants, arid recorded that all the otherparties admitted the claims of the twelfth to eighteenth defendants.He dismissed the claim of the seventh defendant as against thesecond defendant-, and entered a decree declaratory of the rightof the seventh defendant *s' reduced. The decree declared noother rights, and no general preliminary decree was entered,though all the claims then on the record had, in the opinion of theDistrict Judge, been disposed of.
The seventh defendant appealed. The case was argued on28th February, 1897.
Bawa, for appellant.
Van Langenberg. for second defendant, respondent.
Cur. adv. vult.
ISiW.
A/ ■' rch
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1890. 2nd March, 1899. Lawrie, J.—
Marchz. In the oourSe 0f this partition suit it was necessary to examinethe titles of the parties interested, and on the 21st January, 1897,the District Judge of Matara entered a formal decree as betweenthe plaintiff and the ninth, tenth, and eleventh defendants, thatthe plaintiff was entitled to one-third of four-fifths of the land.Against this decree an appeal was taken, which came before thisCourt on the .19th May, 1897, wheu the appeal was dismissed forwant of appearance.
The case went back, and the District Judge, after another inves-tigation, on 23rd December, 1897, ordered and decreed as betweenthe second and seventh defendants, that the seventh defendant isentitled only to one-fifth of the land, and the second defendantwas held liable in costs.
Against this an appeal was taken, which came before us on the28th February, 1899. So that the progress of this suit has twicebeen interrupted by appeals, in which the greater number of the
parties to the suit had no interest.
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The decision of the District Judge in examining the titles of theparties should not take the form of a decree, and we order theformal decree to be deleted. We would make the same order as tothe decree of 2lst January, 1897, were the parties before us.
There remains the judgment: “ The seventh defendant is not(entitled to any larger share than the one-fifth^ he purchased fromthe Crown, and I dismiss his claim to one-sixth of four-fifths.Seventh defendant will pay costs of his contention ”. Is this an■appealable order ? Strictly speaking, I hold it. is.
The Partition Ordinance enacts, section 19: “All decisions andorders, of any Court made under the authority of this Ordinanceshall be subject to appeal to the Supreme Court, and every such■appeal shall be brought or prosecuted in such manner and shall besubject to such regulations as now exist and shall hereafter be madeby law
The Courts’ Ordinance, No. 1 of 1889, gives the Supreme Court ajurisdiction in appeal which extends to the correction of all errorsin fact or law which shall be committed by any District Court.But, though the jurisdiction *is very wide, and though there maybe an 'appealable order, we are in the habit of refusing to exercisejurisdiction and to entertain appeals against judgments which are•not conclusive between the parties to the suit.
In partition aotions the share of none of the parties can be saidto be finally decided until the partition decree be signed. Forexample, here the seventh defendant has been found entitled tono more than one-fifth, as in question between him and the second
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defendant, but it is, at least, possible, that after an examinationof the titles of other parties, the share of the seventh and of thesecond defendants may be increased or diminished.
In the general case an appeal should not be entertained againstdetermination on the titles of parties to a partition suit, made priorto the partition decree, because the determinations are not conclu-sive, and do not bind all the parties.
When the decree of partition is entered, any party to the suitinjured or dissatisfied may then appeal, and all the parties wouldbe respondents.
I recommend that we order the decree of 23rd December, 1897,to be deleted, and that we remit to the District Judge to proceedwith the partition according to law.
Bowser, C.J.—I agree.
[After further proceedings in the District Court, during whichthe twenty-sixth, twenty-seventh, and twenty-eighth defendantswere added as parties, general preliminary decree was entered on28th August, 1899, again rejecting the claims of ninth, tenth, andeleventh defendants as against the plaintiff, and the claim of theseventh defendant as against the second defendant.
Appeals were filed by these unsuccessful parties. That of theninth, tenth, and eleventh defendants was dismissed on 26thOctober, 1899; that of the seventh defendant was held entitled tosucceed on the same date.
Final decree entered 2nd June, 1900.]
1S99.March 2.
LaWBIEj J r
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