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Present: The Hon. Mr. A. C. Lawiie, Acting Chief Justice, July 31,1992and Mr. Justice Withers.
IBRAHIM DIDI et al. v. ALLI DIDID. CGalle, 5,031
Joinder ofparties—Co-owners—Actionagainst another co-owner for
appropriating rents-—Civil Procedure Code, ss. X2‘ and 12*
Several co-owners joined in one action against another co-owner,who appropriated all the rents of the common property withoutaccounting to the other co-owners for their respective shares.
Held, that the joinder of the co-owners in one action was notirregular.
Withbbs J.—To split this action would, X think, at once offendthe code, convenience, and the Civil Law, which permits anynumber of persons having a common interest to join in one action. •
Van Langenberg, for appellants.
Sampayo, for respondent.
July 31, 1901. Lawrie A.C.J.—
I do not agree with the learned District Judge. The cause ofaction is that the defendant, one of several co-owners, has takenthe "whole rents and profits of a land of which the plaintiffs areowners, and that he has refused to pay to his co-owners their shareof the rents.
In my opinion two or more co-owners may join in the same actionagainst the wrongdoer, even though each of the plaintiffs has adifferent title to a share of the land—a title different in date, onemay be earlier than the other; different in character, one may beby inheritance, the other by purchase; different in extent, one fora large, one for a small share.
Sections 11 and 12 of the Civil Procedure Code allow the ownersto join in one action.
Set aside with costs. Sent for further proceedings.
This is an appeal from an order deciding in effect that theplaintiffs cannot unite in this action against the defendant, and inmy opinion the appeal is entitled to succeed. The two plaintiffsand the defendant are owners in common of certain immovableproperties..
It is alleged that the defendant has given out these properties onlease, and has appropriated the rents without accounting to theplaintiffs for their respective shares. The first plaintiff acquired
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Ibrahim Didiv. Alii Didi
his interest in the common property a long time before the secondplaintiff acquired his, and as his share is the larger of the two, andas the defendant began to deal with some of the common, propertiesbefore the second plaintiff’s interest accrued, the amount claimedby the first plaintiff is naturally much more than the amount claimedby the second plaintiff.
It seems to me that sections 11 and 12 of the Civil Procedure Codeapply to this case, and are in favour of the appellants. (Sections 11and 12 are here quoted). The right to relief is no doubt separate,but it is surely in respect to the same cause of action.
The plaintiffs and the defendant have a community of interest inthe rents and profits of the common property, and if the defendant,who has taken these rents and profits, withholds their due sharesfrom his co-tenants, his act is one and the same cause of action.
To split this action would, I think, at once offend the code,convenience, and the Civil Law, which permits any number of personshaving a common interest to join in one action.
IBRAHIM DIDI et al. v. ALLI DIDI