149-NLR-NLR-V-02-FERNANDO-v.-PERERA-et-al.pdf
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FERNANDO v. PERERA et al.D. C., Kalutara, 1,567.
1897.
July23 <t> 27.
Partition Ordinance—Decree under it—Bights of the Crown.
A decree under section 9 of the Partition Ordinance of 1863would not bind the Crown.
rj^HE facts of the case appear ip the judgment.
Dorhhorst, for appellant.
Wendt and Sampayo, for respondeat.
27th July, 1897. Withebs, J.—
If this was manifestly Grown land when the plaintiff broughtthis action to have it partitioned between himself and the otherswhom he named as co-owners, the plaintiff’s action should, havebeen dismissed with costs.
The District Judge refused to order a partition until the parties ’should obtain a grant from the Crown, or a certificate of no claim—at least that is how I construe his order. He was apprehensive lesta decree should for ever bar the Crown, having regard to the stringentprovisions of the 9th section of the Partition Ordinance of 1863.But a decree under this section would not bind the Crown. Thisenacts that “a decree for partition or sale shall be good and‘“conclusive against all’persons whomsoever.”
The Crown is not any such person.
The Crown may be barred though not named in a statute whennone of its prerogatives or rights in property or of any kind arein the least degree affected, but ip*4his Ordinance, where rights inproperty are very materially affected, the Crown to be bound mustbe> specially named, or a manifest intention to include the Crown
must appear in the provisions of the Ordinance.
You n.
12(65)29
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1897.
July 23 A 27,Withers, J.
Par from that being the oase, it is obvious from the veryprovisions of the Ordinance that the Crown is not touched by anydecree under it.
. I see no reason why the decree should be stayed on that ground.The parties have made out a primd facie claim to be deemedooowners.
The premises have been assessed as a private tenement by thelocal authority for Police and Local Board purposes for the lastsixteen years at least. As Aong ago there was a judicial sale ofparties’ interests in the land. Nor to my mind does the evidencejustify the opinion of the Judge that the land, when it was plantedtwenty-five years or so ago, was waste, uncultivated, andunoccupied. But it is useless to say more on this point, as nothing,I say, can affect the Crown. I think there should be a decreeof partition.
[His Lordship here proceeded to discuss certain questions offact at issue between the second and fifth defendants.]
Bhownk, J.—
I entirely agree, and have nothing to add.