064-NLR-NLR-V-29-MUNESINGHE-v.-JERONIS-et-al.pdf
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Present: Schneider J. and Maartensz A.J.
MUNESINGHE v. JERONIS et al148—D, C. (Inty.) Kalutara, 12,847.
Partitionaction—Right of pre-emption—Thecorrect procedure-
ordinance No, 10 of 1863, s. 14,
Where a partition action involves the question of a right ofpre-emption under section 14 of the Ordinance, that right shouldbe exercised before the interlocutory decree for partition or saleis entered.
A
PPEAL from an order of the District Judge of Kalutara.
The facts appear from the judgment.
Weerasinghe, for second and third defendants, appellants.
H, V. Perera, for plaintiff, respondent.
October 19, 1927. Schneider J.—
We affirm the judgment of the Court below and dismiss theappeal with costs. We are of opinion that the learned DistrictJudge was right in holding that the plaintiff was the sole owner,and also right in his holding as regards the plantations and houseson the land. But we are not satisfied with the decree that hasbeen entered. It seems to us defective in two' respects. Firstas regards costs it directs that the second and third defendantsshouldpaytheplaintiff’scosts. That would meancosts of the
whole action, which was not what the District Judge ordered.His order was that the second and third defendants should payto the plaintiff the costs of the contest. The District Judge hasomitted to make any order in regard to the costs of the action,apart fromthecosts ofthe contest. Heshouldhave ordered
that those costs should be borne pro rata byv the parties accord-ing tothevalue of their interests. Next,the decree does not
seem to us to be quite in conformity with the provisions of thePartition Ordinance. It declares that the land is sold. It appearsto have been framed in terms of the prayer of the plaint, but thatprayerdoesnotseem tobe quite correct.Section14 places a
person “ having a permanent right of property in any of the treesgrowing upon any land and no interest in the ownership of thesoil ” in the same position as a person having an undivided interestin the laud itself so as to entitle him to compel a partition or saleof the land and all thereon in the manner provided by the Ordinance.It also gives the owner of the soil a right of pre-emption upon
1927.
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1027. a ju6t appraisement by the Commissioner " of the value of theSchketobr platers' right and interest ” and houses built thereon by him.
J.It seems to us that if an action under the Ordinance involves theMuneainghe question ofthe right ofpre-emption under section 14, that the
v*right shouldbe exercisedbefore the interlocutorydecree for parti-
tion or saleof the landis entered. In Natchiav. Baba Singho1
it was heldthat an orderfor pre-emption is not ajudgment in rent
such as is contemplated in section 0 of the Ordinance, becausethat section speaks of a decree for partition or sale given as“ hereinbefore provided The word “ hereinbefore ” precludes adecree or order under section 14 being vested with the characterof a decree under section 9. Lascelles C.J. said in that case “ Itis clear to me that an order under this section is in no sense of theword a partition, and it is equally clear that it does not amount toa decree for the sale of the corpus of the property under the sectionswhich precede section 9. ” If the soil owner is unable to exercisehis right of pre-emption, or does not exercise that right, the landwith everything on it would then have to be sold or partitioned interms of the provisions on that behalf in sections 5 and 8 of theOrdinance.
As there had been a full trial of the title to the land in this caseit appears to us that the correct procedure is the following: TheCourt should enter an order declaring the rights of the partiesin regard to the lands, plantations, and buildings, and direct a saleof the land, plantations, and buildings in the event of the plaintifffailing to exercise his right of pre-emption. Upon this order, firsta Commission should issue for a just appraisement of the value ofthe planters' interests and of the buildings. Upon the Commissionermaking a return in regard to this Commission, the parties shouldbe notified of the return having been received and should be heardin support of any objection they may have to the appraisement.It is after such objection,ifany, has beendisposed ofthat the
interlocutory decree shouldbeentered for thepurpose ofa sale in
conformity with the provisions of section 8. In that interlocutorydecree should be embodied an order as to costs; that the costs ofthe contest- should be paidtothe plaintiff bythe secondand third
defendants, and the othercosts be borne bythe partiespro rata.
It was pointed out in Obcyesehera v. Karonchihamy- that theobjection to a pre-emption under section 14 should be made beforethe sale. We therefore formally set aside the decree which liasbeen entered, and remit the case for the procedure indicated inthis order to be followed.
Maahtkxsz A. J.—I agree.
Set aside.
3 (2006*) 2 Matant ('. 40.
{1896) 7 Tambyah 44.