Arnett* v. Htndriih
1672 Pmtni: H. H. 0, Fernando, O.J., and Wlmalaratne, I.OoruAli&Uen Board* Aet, No, id of IBSO—SeeHon 14 (JH0ert(/tea/e themmdtt^No*Hteesrtiy for inetittUio» of a partition attion-^PartUlon Act, *, 8.
Aa aetlea for partition of land ean be instituted without the produotioa ofthe eertifloate from a Conciliation Board which is referred to ia soottoa 14 (1)of the Gdaniii&tion Beards Aet.
B. J, Fernando, with Vyaya Atalcdaeebem, for the 2iet, 22nd, 23rdand 24th defg&d&nt&appdi&nte.
it, W, Jayeioardmet with 6, <fe 8, Wijmtnet for the plaintiftaespondeat.
It. ARNOLfS and 2 others, Appellants, andft. HENDRICK, Respondent
8, 6, 261/68 (lnty,)^D. 0, Gmpaha 13083/?Appeal
from an order of the District Court, Qampaha.
£7*r. adv, raft.
H. N. 0. FEHNANDQ, O.J.—Arnold v. Htndrlob
December 21,1072. H, N. G. Fernando, C.J.—
The only question raised in this appeal ie whether an notion for partitionof land oan be instituted without the production of the certificate from aConciliation Board whioh is referred to in s. 14 (1) of the ConciliationBoards Act. While we agree with the deoision of the learned DistriotJudge that s. 14 does not apply to a partition action, it is expedientthat we set out our own reasons for so agreeing.
It Is no doubt oorreot that the existence of a dispute botween co-owners,or between a co-owner and some person whose olaim to some interestis denied, is often the oocasion for the institution of a partition action ;and that a partition decree often serves finally to resolve suoh disputes.Nevertheless, a partition aotion is not based upon a “ cause of aotion ”as defined in the Civil Procedure Code, but upon the right, independentlyrecognized by s. 2 of the Partition Act, of any co-owner to seek a partitionor sale of oo-owned land. Although it is usual to follow now the formerpraotioe of averring in a partition plaint the fact that common possessionis not convenient, the Partition Act does not require such a fact to beaverred or proved. It is thus clear from s. 2 that the jurisdiction of aCourt under the Partition Aot is not principally to resolve and determinedisputes, but to ascertain the rights or interests of persons in land whichis owned in oommon, and to divide the land into separate portions amongthe former co-owners. If then a co-owner has a right to institute anaction for partition of a land, although no one disputes the rights orinterests claimed or admitted in the plaint, the faot that some disputedoes exist as to suoh rights or interests cannot derogate from or qualifythe right to institute the aotion.
For practical purposes, a decision that s . 14 of the Conciliation BoardsAot applies to partition actions will lead to absurdities whioh Parliamentcould not have intended or tolerated.
Let me take for example an instance in which one oo-owner of a land,who is in possession of a lot on the east of the land, has a dispute withthe owner of the neighbouring land concerning the boundary betweenthe two lands, or concerning a claim by the neighbouring owner to aright of way. Could Parliament have reasonably intended that theexistenoe of this dispute derogated from the right of any other co-ownerof the land to seek a sale or partition, even if he is unaware of the disputeor even if he concedes the olaim of the neighbouring owner 1
The purpose of the Conciliation Boards Act is to secure that disputesare settled as far as possible by the method of oonoiliation. Let mesuppose therefore, that in the example which I have taken the disputebetween one oo-owner of a land and the owner of the neighbouring landis settled by a Conciliation Board, and the settlement declares that theboundary is that claimed by the neighbouring owner, or thatthe neighbouring owner does have a right of way. According to theprovisions of the Conciliation Boards Act, a Court will then be bound
X 20596 (3/78)
de Zoyea u. The Queen
to give effect to the terms of this settlement, despite the fact that onlyone co-owner was a party before the Conciliation Board. I cannot thinkthat Parliament intended any such absurdity or injustice.
The purpose of the Partition Act is to authorise a Court to enter adecree in rem declaring the ownership of allotments of land bindingon all persons, subject only to certain narrow limitations. Such adecree cannot be entered unless the Court is satisfied that no personwho is not a party has any right or interest in the land. If then, it iscorrect that a Conciliation Board does have jurisdiction to settle a disputeas to co-oWnership, and that such a settlement will bind a Court of law,the Court will be compelled to enter a decree for partition in terms ofthe settlement before the Board, despite knowledge or suspicion thatproceedings were taken before the Board with a view to defeating therights of persons who were not parties to the settlement.
We endorse in addition the reasons upon which the learned DistrictJudge based his decision of this question. For these reasons, the appealwas dismissed with costs.
Wimai-aratne, J.—I agree.
R. ARNOLIS and 2 others, Appellants, and R. HENDRICK, Respondent