102-NLR-NLR-V-23-FERNANDO-v.-MARSAL-APPU-et-al.pdf
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1022.
Present: Ennis and Porter JJ.
FERNANDO v. MARSAL APPXJ el at.
314—D. C. Negombo, 1,444.
Partition—•Decree obtained by fraud and collusion—Conclusive effect of-decree—Evidence Ordinance, s. 44.
, In an action for declaration of title the defendants claimed undera partition decree. The*plainti£E impeached it on the ground thatit was obtained by fraud and collusion.
Held, that under section 9 of the Partition Ordinance the plaintiffwas bound by the decree.
“ I have not considered it necessary to go into the question as towhether in exceptional circumstances, where the property is still inthe sol6 possession of the parties whose fraud is set up, the Courtcould not on proof of fraud take away the property from them/9
HPHE plaintiff sued the defendants for a declaration of title to aland called Kendakanattew&tta, situated at Kaluwairappuwa,of which she alleged that the defendants were in wrongful possession.The defendants denied the right of the plaintiff, and pleadedthat they were entitled to the land upon partition decree in caseNo. 14,137, D. 0. Negombo.
The plaintiff admitted that a decree had been obtained, but sheaverred that the same had been obtained fraudulently and collusivelyby all the parties to the said partition action, and as. such was liableto be set aside.'
The case went to trial on the issue as to whether, even if there wasfraud and collusion on the part of the defendants, the partitiondecree can be set aside.
The District Judge (W. T. Stace, Esq.) held that, even if therewas fraud and collusion, the partition decree cannot be set aside,and dismissed plaintiff’s action, with costs.
The plaintiff appealed.
Samaramckreme, for plaintiff, appellant.
Zoysa, for defendants, respondents.
Much 9,1922. Ennis J.—
This was an action for declaration of title, ejectment, and damages.The defendants pleaded in answer that they were entitled under apartition decree, whereupon certain issues were framed, the plaintiffasserting that the partition decree had been obtained by the defend-ants by fraud and collusion. The learned Judge held that, even ifthe defendants had so obtained the partition decree, the plaintiff
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would be barred from bringing this action by virtue of section 9 ofthe Partition Ordinance, No. 10 of 1863, and he dismissed the plain-tiff’s action. The plaintiff appeals from this decision, and it isaxgued that under section 4A of the Evidence Ordinance the questionof fraud and collusion could be gone into in. the present aotion. 1had at first some doubt as to whether this question can be gone intoin any proceedings other than in proceedings for restitutio inintegrum. A number of cases have been cited to us winch showthat the question could be gone into in cases in which they arise.In Buyzer v. Eckert1 it was held that where fraud or collusion aroseincidentally in a case, the question could be decided in the action.The case of Nedakutiy v. Alvar2 was a case where the plaintiffsought to set aside a partition decree on the ground, inter alia, thatit had been obtained by'fraud and collusion, and the matter wasconsidered in that case, although it was decided on other grounds.Passing then to the effect of section 9 of the Partition Ordinance, 1find a series of cases in which the question has arisen, and one inwhich the point was directly in issue. That case is Jayawardene v.Weerasekera.3 There Sir Alexander Wood Benton said:—
“ It is as well settled as any point of law can be that a partitiondecree is conclusive aga|nst all persons whomsoever, andthat a person owning an interest in the land partitioned,whose title even by fraudulent collusion between the partieshad been concealed from the Court in the partition proceed-ings, is not entitled on that ground to have the decree setaside, his only remedy being an action for damages.”
In support of that proposition Sir Alexander Wood Benton citedthe cases of Carolis v. Ratnaike 4 and Nonohamy v. de Silva.5 Inother cases the matter was considered although judgment was basedon other grounds. In the case of NeeiakuUy v. Alvar (supra), theChief Justice referred to the rulings of this Court that ” the effect ofsection 'd of the Partition Ordinance precludes any person fromimpeaching a decree of a Court in a partition action even on thegroundthat it was obtained by fraud and collusion.” But in that case thepartition decree was held to be void on the ground that the Courtwhich passed it had no jurisdiction. The case of Fernando v.Fernando 6 was a Full Court case, and in the judgment in that casethere was a dictum that section 9 of the Partition Ordinance wasbinding on all persons, and that the only remedy left to a personclaiming the land thereafter was a remedy by an action for damages.
In that case again the decision of the case turned on the question ofjurisdiction., I see no reason to think that these decisions shouldnot be followed. The principle of the Partition Ordinance is to free
1922.
Ennis J
Fernando v.Mar$af
Appu
* (1910) 13 N. Lt R. 371.2 (1918) 20 N. L.R. 373.2 (1917) 4 C. W. R. 406.
4 (1891) S. C. R. 274.
*(1889)98.0. a. 198.
6 (1906) 9 N. L. R. 241.
1922.
Ennis J.
Fernando v.M arealAppu
the land from all encumbrances and to substitute thereafter anaotion for damages in place of* the action to recover the land. Weare not in the present case in a positions say definitely that noother persons than the defendants in the action have interests underthe partition decree, so that 1 have not considered it necessary to gointo the question as to whetherin exceptional circumstances, wherethe property is still in the sole possession of the parties whose fraudis set up, the Court could not on proof of fraud take away theproperty from them. It is unnecessary in this case to consider■ that matter.
I would accordingly dismiss the appeal, with costs.
Pobter J.—I agree.