038-NLR-NLR-V-58-FERNANDO-Appellant-and-PERERA-Respondent.pdf
Present : Pulle, J., and Weerasooriya, J.
J956
FERNANDO, Appellant, and PERERA, Respondent
S.G. 310—D. C. Jtalnamira, 1,053
-Partition action—Interlocutory decree—Its binding effect- on .the parties—Title as tobuilding erected by a co-owner—Ites judicata.
By an interlocutory decree entered in an action for the partition of ft land,A was declared entitled as against B too gnrago -which had been put up by aco-owner on tho land and transferred by him to A. The decreo was silentas to any rights of B in tho land sought to bo partitioned. Subsequently Asued B in tho present action for tho recovery of mesne profits in respect of thogaxngo from tho date of its purchase by A.
{1047) A. I. H. IS.
• Held, that tlio interlocutory docreo entered in the partition action was binding -on B and operated ns res judicata in regard to tiro title of the parties to tlie-garage in the present action.
Ail PPEAI/ from a judgment of the District Court,-Ratnapura.
T. B. Dissanayake, with E. S. Amerasinghe, for the plaintiff appellant..
II. Wanigatunga, for the defendant respondent.
Our. ado. vitll..
March 27, 195G. WnisnASOomYA, J.—
By an interlocutory decree for partition {PJ ) dated the 26th May, 1953,.entered in D. C. Ratnapura Case No. 9,135 the plaintiff-appellant (who li -the 3rd defendant in that case) was declared entitled to certain undividedshares of the land sought to be partitioned and also to the buildings G,D and E in Plan No. 1,155 (P2). It would appear that two alternativeschemes of partition are under consideration in that case and no finaldecree has yet been entered. Of the buildings referred to, C is a garage. -and is the subject matter of the present action.
In the plaint in the present action, dated the 2Sth July, 1954, the-plaintiff recited his title to the garage as by right of purchase upon a deedof transfer No. 10,6'72 dated the 14th June, 1947, and also the interlocu-tory decree in the partition case No. 9,135. The cause of action pleaded,was that since the plaintiff "'s purchase the defendant-respondent disputedhis title to the garage and appropriated the rent of the same and therelief claimed against the defendant was the recovery of mesne profitsfrom the date of plaintiff :s purchase up to the 31st May, 1953, which for-the purposes of the action were restricted to a sum of Rs. 1,200 with legal,interest and costs of suit.
The defendant-respondent is the 3rd plaintiff in the partition action.In that action a contest arose between him and the plaintiff-appellantover the garage in question which the latter claimed to be entitled to-oxclusively as an improvement effected by the transferor on Deed No.10,672. The contest was resolved in favour of the plaintiff-appellantand no appeal was filed against the interlocutory decree declaring himentitled to the garage. That decree is silent as to anjr rights of the-defendant in the land sought to be partitioned.
At the trial of the present action the following three issues were raisedwhich the trial Judge was invited by the parties to try as preliminari-issues :—
Docs the interlocutory decree in D. 0. Partition Case No. 9,135,by which the plaintiff in this case, who. was the 3rd defendantin the said partition case No. D. C. 9,135, was declared entitled- to the garage referred to in the schedule to the plaint, operatc-as res judicata against the defendant in this case with regardto the title to the said garage ?
Docs the interlocutory decree referred to in paragraph 2 of the
.plaint, vest title in the plaintiff in respect of the said garage ?
If not, can the plaintiff maintain this action ?
The learned trial Judge answered eacli of these issues in the negative andaccordingly dismissed the plaintiff’s action with costs. From thisorder the plaintiff has appealed.•
In disposing of the action in this way the learned Judge regarded asdecisive the dictum of Bonser C.J. in the ease of Pieris et al. v. Pereracl al. (F.B) that an ** interlocutory decree for partition, unless proceededwith, is useless for all purposes. It. would not even support a plea ofres judicata ”. But the substantial ground on which the judgment ofthe trial Court was reversed and the case remitted for a fresh trial was theinadequate nature of the investigation into the rights of the partiesbefore Court and of certain other persons whose interests in the landsought to be partitioned had been disclosed, and the dictum quoted abovecannot, therefore, be regarded as forming part of the collective decisionof the Appellate Court, nor have we been referred to a 113* subsequentdecision where that dictum was adopted as correct. The contraryseems to have been laid down in Silva v. Silva et al. 2 (also a . FidlBench case, but a decision by the majority of the Court) where it washeld, following certain earlier cases, that a preliminary decree for parti-tion which is entered in accordance with the judgment is binding on theparties as long as it stands unreversed. In that case, under the inter-locutory decree for partition, one of the parties had been declared entitledto an undivided share to the exclusion of another. Althoughthe judgment in terms of which the decree was entered was,as subsequently transpired, based on an erroneous interpretationof a document-, no appeal was filed against it but after thecommissioner who was appointed to prepaid a scheme of partitionhad made his return, the successor in office of the Judge who was responsi-ble for the wrong order amended the interlocutory decree with a view torectifying the error. It was held in appeal that the interlocutory decreewas binding on the parties and that it was not open to the Judge toamend it. In the ease of Tillckeralne v. de Silva3 the preliminary deci ee -for partition contained an express declaration that the land sought to bepartitioned was subject to a jidci commission but such a declaration wasomitted in the final deciee in regard to the shaies in severalty allottedto the parties. It was contended in appeal that the omission had the.effect of making the parties entitled to the shares free of the fidei-commissum-. In rejecting this contention Soertsz S.P.J. stated as his-■ view that the Partition Ordinance (Cap. 56) contemplates only onedecree, namefy, that provided expressly as a decree in Section 4, and thatwhile Section G piovides for a “ final judgment ” confirming the partitionproposed by the commissionei-, it is the decree under Section 4 whichunder Section 9 is given good and conclusive effect as regards the parti-tion or sale and the title of the parties. He held that the shares awardedin severalty were subject to the fdei commission notwithstanding the
■omission to reserve it in the “ final decree It must be noted, however,that the view of Soertsz S.P.J. is not in accordance with certain previousdecisions of this Court of which I need refer only to the case of Gatherina-hamy et al. v. JBabahamy ct al. 1 where it was expressly held that thedecree which is conclusive under Section 9 of the Ordinance is the finaljudgment under >Section 6 allotting the shares in severalty in the case ofa partition. But this decision did not touch on the question of thebinding effect of an interlocutory decree on the parties to it as long as:such a decree stands unreversed in appeal. On the authority of Silva v.Silva et al. (supra) I would hold that the interlocutory decree entered in■Case INTo. 9,135 is binding on the defendant-respondent and operates asres judicata in regard to the title of the parties to the garage in the present-action. I may say that for the purposes of the present case it is notnecessary for me to consider the rights of parties under an interlocutory•decree entered in a partition action in regard to which an order of abate-ment is made under Section 402 of the Civil Procedure Code prior to theentering of the final decree. That such an order could be made in apartition action was recognised in the case of illulhucumara-swamy■v. Sathasivam et al. 2
Mr. Wanigatunge who represented the defendant-respondent sought toreinforce the position of his client by the argument that all that theplaintiff-appellant is entitled to by virtue of interlocutory decree in•Case No. 9,135 is the allocation of the soil on which the garage stands aspart of the share in severalty that would eventually come to him underthe partition decree or in lieu thereof to be paid compensation as foran improvement of the soil should that portion be awarded to anotherco-owner under the scheme of partition that will be adopted by Court.In support of tills argument he cited the case of Moldrich v. LaBrooy2,but it cannot be said that the decision in that case was intended to be-exhaustive of the rights of a co-owner in the common property; Inthe case of Girihagama v. Appuhamy J it was held that a co-owner whohas built a house on the common land is entitled to claim damagesfor the period during which he is deprived of liis possession of the sameby another who though not a co-owner had entered into occupation-of it, but without the former’s consent-, on the strength of having paid-off a mortgage to which it was subject. The decision in that case wasbased on the judgment of Ennis A.C.J. in Kathonis v. Silva 5 where hesaid that he could see no reason why a co-owner who exercises his rightsas such and builds a house should not eject another co-owncr whoattempted to occupy it without his permission. In the case of Peerisv. Appukamy 6 it was held by Keuneman A.C.J. that a co-owner whomakes a plantation on common property is entitled to retain possessionof the improved portion until the rights of the parties are finally decidedin a partition action. In the case of Cooray el al. v. Samaranayafce ‘it was held that a possessory action for a plantation can be maintained"by one co-owner against another. In view of these decisions the argu-ment advanced by Mr. Wanigatunge is not tenable and must bo rejected.
* (1030) 14 C. L. 11". 11.s (1910) 91 -Y. I,. It. 452.«(1017) IS A". L. It. 311.
J (190S) 11 -V. t>. It. 90.
– (1961) 5-3 A". I,. R. 07.
3 (101 J) 14 A".11. -331.
’ (1046) 32 c. T.. 11". 13.
In the present case, having regard to the terms of the interlocutory dec-ree entered in the partition action (No. 9,135) the defendant-respondentis not even a co-owner of the land on which the garage stands. I see no-reason to hold that the plaintiff" ’s action is not maintainable. It will bonoted, as stated already by me, that the claim for mesne profits is up tothe 31st May, 1953. The interlocutory decree was entered on the 26thMay, 1953. Tho plaintiff's title prior to that date would rest on hisdeed of transfer No. 10,072, and in regard to his claim for mesne profitsup to tho 31st May, 1953, he would be entitled to rely on that deed aswell as on the interlocutory decree.■
The order dismissing the plaintiff’s action with costs is set aside andthe case is remitted for trial before another Judge on the basis that theinterlocutory decree operates as res judicata in regard to the rights ofthe parties to the garage as from the date thereof. The plaintiff will beentitled to his costs here and in the Court below.
Poxle, J.—I agree.
Judgment set aside.