081-NLR-NLR-V-39-JAYARATNE-et-al.-v.-ZOYSA.pdf
284
FERNANDO A.J.—Jayaratne v. Zoysa.
1937Present: Poyser S.P.J. and Fernando A.J.
JAYARATNE et al. v. ZOYSA.
187—D. C. Galle, 14,912.
Partition action—Proof of title—Interlocutory order—Successive intervenients-.
In a partition action after interlocutory decree the plaintiff is notbound to prove his title against each successive intervenient.
Appuhamy v. Gooneratne (I Wijeyavoardene’s Reports 60) followed.
PPEAL from an order of the District Judge of Galle.
A. Rajapakse (with him V. F. Gooneratne), for plaintiffs, appellants.
158th added defendant respondent, in person.
June 18, 1937. Fernando A.J.—
The plaint in this partition action was filed in 1917, and a preliminaryplan was made in 1921, showing a land of an extent of 20 acres 3 roods9 perches. Later, another plan Was made in 1927 showing an extentof 27 acres 1 rood 27 perches. Interlocutory decree was entered onAugust 3, 1928, and at that stage one of the parties to the action wasthe 85th defendant, the mother of the 158th added defendant.
In 1934, the 85th defendant and a brother of the 158th added defendant-respondent filed an intervention, and in their statement of claim theynamed the 158th added defendant as also a person entitled to a sharein the land. Their statement of claim was dated May 12, 1934, and onOctober 19, 1934, the Court allowed the brother of the 158th addeddefendant to withdraw his claim, but refused a similar application madeby the 85th- defendant. On November 9, 1934, the intervention of the85th defendant was also withdrawn and dismissed without costs.
The respondent was first present in Court on July 1, 1935, and wasadded as a party to the action on that date. It would appear from theproceedings of that date that he was unable to state his claim at' thetime although he was added. He filed the statement of claim on July15, 1935, and appears to have amended that statement on December 19,1935.
The learned District Judge inquired into the intervention on severaldates, and on May 8, 1936, made order dismissing the plaintiff’s actionwith respect to lots B and C in plan XI which appears to have been filedby the 158th added defendant. It would appear, however, from theearlier portion of his order that he intended to dismiss the action withrespect to lots B and C in plan No. 629 which had been filed by theplaintiff, and against this order the appeal is filed by the plaiiitiffs-appellants. In the course of his order, the learned District Judgeobserves that “ the attitude taken up by the 158th defendant’s motherand the long delay on his part in coming to Court must be considered,but they cannot conclude the question ”. He, however, does not referto this aspect of the matter any further. Moreover in his order thelearned District Judge does not find that the intervenient is himself
FERNANDO A.J.—Jayaratne v. Zoysa.
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entitled to the entirety or to any portion of the lots which he excludedfrom the partition. In other words’ he appears to have treated thisaction as one in which the regularity of the previous trial was questioned,and to express his own opinion that, on the evidence before him theearlier order was incorrect.
In a case where an interlocutory decree has be£n entered in a partitionaction, there is no rule of law which lays dowxi the period after which,intervention will not be allowed, but I might refer to the remarks ofWood-Renton C.J. in Bandara v. Baba' “we are not concerned herewith the policy of the law, although I may say in passing that I thinkthat the right of intervention under the Partition Ordinance, 1863, so farfrom being extended should be peremptorily barred in the Courts offirst instance on the expiry of a prescribed period after the interlocutorydecree, and could be so barred with safety, provided always that dueprovision was made for securing greater publicity to partition proceed-ings ”. The respondent himself in the course of his address to us statedthat he was present in Court in November, 1934 when his mother’sand brother’s claim was withdrawn. He also stated that he was inpossession of the land since 1926, and it will be noticed that the planon which the first trial took place was a plan made in 1927. It wouldappear therefore that the intervenient was aware that the lots whichhe sought to exclude hack been surveyed for the purpose of thisaction so long ago as 1927, and he sought to intervene only at the endof 1935, although he was aware that his brother had intervened theprevious year-
In the course of the inquiry on the intervention of the 158th addeddefendant, the main portion of the evidence led for the respondentconsisted of certain documents by which he sought to prove that thedeeds relied on by the plaintiffs-appellants did not cover the entiretyof the land which had been surveyed, and the learned District Judgein his order held' that in his opinion the land called Pambokkewattadid not include lots Bl, B2, and C. He appears to have come to thisconclusion by a consideration of some of the deeds tendered by therespondent. It would almost appear that the learned District Judgethought that the burden of proving that the land sought to be partitionedwas covered by the deeds was on the plaintiffs. I would here refer to theremarks of Wood-Renton C.J. in Appuhainy v. Gooneratne “ It wouldbe monstrous to hold and there is no enactment and so far as I am aware,there is no decision which compels us to hold that in all partition actions,the plaintiff must prove his title afresh against every successive inter-venient”. It will be noticed that in this case the respondent’s brother,and his mother both withdrew their contest and were not preparedon the trial date to contest the position that the lands that had been,,surveyed were all possessed in one between the parties to the action,and an interlocutory decree was entered presumably because the learnedDistrict Judge was then satisfied that the land was so possessed incommon. It may not be correct to say that in all partition actions,the burden of proof is always on the intervenient, but in a case like thepresent one, it seems clear that the intervenient should, not be allowed
I ]S K. L. R. 1.5 (2913) Wijetjaivardcnc.s Reports 60.
286
ABRAHAMS C.J.—de Neise v. Sambunathan.
to pick holes in the case for the plaintiff without first establishing someclaim or interest in himself. Otherwise the result would be that four orfive members of one family can each of them in turn attack the casefor the plaintiff by successive interventions and prolong partition actionsfor a large number of years.
In the circumstances of this case, I think the learned District Judgewas wrong in dismissing the plaintiff’s action with regard to lots B and C,and I would set aside that order and allow the appeal. The interventionof the 158tli defendant-respondent is dismissed with costs here and in theCourt below.
Poysek S.P.J.—I agree-Appeal allowed.
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