023-NLR-NLR-V-09-SILVA-et-al.-v.-SILVA-et-al.pdf
( no )1905.
March 28.
Present: Sir Charles Peter Layard, Kt., Chief .Justice, andMr. Justice Moncreiff.
SILVA et al. v. SILVA et al.
, D. C., Galle, 6,462. .
Partitionsuit—Claimfordamages—Misjoinderofclaims—Ordinance
No. 10 of 1863.
It is not competent for a plaintiff in a partition suit to join insuch suit a claim for damages arising from a wrongful act com-mitted by one of the co-owners.
Samarasinghe v. Balahami (6 N. L. R. 379) followed.
A
PPEAL from a judgment of the District Judge of Galle. Thefacts and arguments sufficiently appear in the judgment.
Sampayo, K.G. (E. Jayewardene with him), for appellants, (21stand 124th defendants).^
H. J. C. Pereira, for respondents, (plaintiffs).
Cur. adv. vult.
28th March, 1905. Layard C.J.—
In this case the plaintiffs brought an action in the Dfstrcit Courtof Galle for the purpose of partitioning a certain land under theprovisions of Ordinance No. 10 of 1863. They further prayed for
(1) (1872) L. B. 7, C. P. 97.
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an injunction restraining the 21st and 124th defendants from buildinga house on the land pending this action.
With regard to the injunction prayed for, it is only necessaryto say that, although the plaintiffs asked for an injunction pendingthe action, they never sought to take out' the injunction, and it isunnecessary for us in this suit to decide whether or not a plaintiffwould be entitled to ask for an injunction in a suit instituted underthe Ordinance 17o. 10 of 1863.
Certain of the defendants came forward and filed an answer oranswers. By agreement between the parties an issue was settled.Are the 21st and 124th defendants entitled to the house No. 17 inplan filed with the plaint and No. 2 in deed or to any compensationtherefor ? The issue on the face of it was a clew issue. The DistrictJudge on that issue gave the plaintiffs damages against the 21st and124th defendants. These two defendants object to the order andappeal to this Court, and they submit that damages are not recover-able in a partition suit, and that the learned District Judge wasconsequently wrong in awarding them damages. How this questionof damages, which was not claimed by the plaintiffs and was notin issue in the Court below, came to be decided by the DistrictJudge is not clear. It, however, enabled him to point out how heconsidered that this Court had erred in the case of Samarasinghe v.Bdlahamy (1), and it remains for us to decide in view of the con-flicting decisions- in this Court whether in our opinion thejudgment which the District Judge has been pleased to over-ruleis sound or not. Admittedly there have been conflicting decisionsin our Court. The decisions in conflict with the decision abovequoted have certainly not been followed for some years, becausemy brother Wendt, who had an extensive practice at the Barfor twenty years before he mounted the Bench, in his judgment, inthat case stated that it was novel to him that in an action under thePartition Ordinance the plaintiff should join a claim for damages.It may be, as pointed out by Mr. Jayewardene in his book on theLaw of Partition, that there was at one time a practice to join aclaim for damages with an action under the Partition Ordinance.A predecessor of mine on the Bench so far back as 1890 pointed outin the case of Siyadoris v. Adrian (2) that he frequently expressedthe opinion that a partition suit should not be encumbered withclaims in the nature of accounts between the co-owners. That wasthe view of Chief Justice Burnside, and I believe also of my distin-guished predecessor Chief Justice Bonser. It may be however thatthe law of these distinguished Judges may be wrong, and the
(11 (1902} 5 L. N. R. 379.(2) S. C. Min. June 10.
1906.
March 28.
LiAYABd C.J.
I 112 )
1906. question for me to decide is whether I should follow the la$ar rulingManh 28. of this Court> or whether I shall hold that a plaintiff can includeLatabd O.J. a prayer for damages in an action for partition. I an wrong inexpressing myself in that way, because the plaintiffs have notincluded in this case a prayer for damages, nor have they ever askedfor such a remedy. What I have fo decide is whether a Judgewould be right in awarding a plaintiff damages in a partition suit,or whether a partition suit is limited to the remedies laid down andprovided for in the' Partition Ordinance. There is no doubt that ifthis action was brought under the Boman-Dutch Law as it existedbefore the introduction of any statutory law into the Colonyproviding for the procedure to be adopted in a partition suit and ifthis was an action oomniuni dividundo, which is a mixed action, thatis, a real action in so far as each co-owner in undivided shares suedfor and vindicated thereby his own property or share belonging- tohim as owner, and personal in so far as it is allowed to owners at thesame time to sue lor and obtain in the same proceedings a settlementof their personal claims for damages. The right to recover damagesin such an action was recognized by the Boman-Dutch Law. OurPartition Ordinance, however, provides that when any landedproperty is held in common it is competent for one or more co ownersto compel a partition of such property, or should such partition beimpossible to apply for a sale thereof, and provides that one or moreowners in any such case may file in the District Court a libel describ-ing the property and stating the extent of his or their share orinteiest therein, the names and residences of all the co-owners, andthe mortgagees and the extentof their respective sharesor interest
in theland, and also the improvements, ifany, whichhave been
on theproperty by any owneror owners sofar as theyare known
to theperson or persons filingthe libel andpraying fora partition
of the property amongst the several owners or a sale thereof as thecase may require. Whilst the Ordinance provides for a claim forcompensation, it nowhere provides for any claim for damages, nordoes it provide for an account being taken in respect of the profittaken by one co-owner to the detriment of another co-owner in theland. It is singularly silent with regard to any claim for damagesbeing raised. It appears to me that the Legislature did not intendthat a partition suit should be embarassed by the inclusion thereofof a claim for damages in respect of some delict committed by oneor more of the owners of the property. There is a great distinctionbetween damages and compensation. Compensation for improve-ments is a thing necessary to be determined in a partition suit;otherwise there can be no proper division of the property amongst
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the co-ovmers. Damages on the other hand result from a wrongful 1608.act on the- part of one of the co-owners, and should be the subject March 28.of a separate suit as any other ordinary proceeding. I cannot seeqj,
that because the law lays down that compensation should be given,which is for a rightful user of the property by a co-owner, that wemust assume that the Legislature intended to include compensationor damages for a wrongful act on the part of a co-owner.
The order of the District Judge, in which he directs the 21st and124th defendants to pay the costs of the contest and a sum ofBs. 200 as damages, must be set aside, and the case remitted to theDistrict Judge for him to determine the point in which the partieswere really at issue, and on which they had asked his decision,namely, as to whether the 21st and 124th defendants are entitledto any compensation.
I am not sorry that I have been given the opportunity of onceagain approving the law as laid down by my brothers in my absencefrom the Bench. At the same time I cannot help expressing myregret that the parties should be put to the costs of this appealby the action of the District Judge in raising a question, which wasnot the subject of issue on the pleadings nor of the issue settled atthe trial, though it gave the District Judge the opportunity, whichhe appears to have desired, of pointing out where he thinks thejudgment of this Court has erred. I am not convinced, however,that there is any error in the judgment to which he has takenexception.
The costs of this appeal will abide the final determination on theissue which the parties wished the District Judge to determine.
Moncreiff J.—
I am of the same opinion. The allurements offered us bythe District Judge have not altered the opinion which I formedwhen I sat with my brother Wendt three years ago to consider thequestion whether a claim for damages could be joined in a suit forpartition of land. I thought then, and I think now, that such aclaim is altogether out of place, and that the Legislature neverintended that such a claim should be included in a partition suitaccording to the preamble of the Partition Ordinance; theobject of the Ordinance is to provide for the partition or sale of-land held in common. As the Chief Justice has pointed out, theingredients of the plaintiffs’ libel are carefully described in the 2ndsection, and provision, is made for compensation. Compensationbeing provided for, and there being no provisions for damages, Ishould have thought there was sufficient indication that theLegislature did not intend that there should be a claim for damages.
( 1M )
1905. The learned Judge however has, upon a canon of construction ofMarch 28. his pwn, drawn the opposite conclusion.. So far a9 my experienceMonoreifj-J. on this Bench, which extends for about five years, goes this is onlythe second occasion, so far as I remember, on which this point hasbeen brought to my notice. I therefore repeat that so far as myexperience goes the attempt to claim damages in a partition suit isunusual. At the same time I am aware that many irrelevantmatters are included in the plaints which came before this Court,and possibly such claims may have been made in more cases thanI am aware of, and ignored as irrelevant by all persons concernedincluding District Judges.
I believe there is no mention of partition suits in the Civil Proce-dure Code, but we were informed that this Court has held that sucha suit is an action. Certainly it would be difficult to say that it wasnot an application invoking the interference of the Court (section 6,Civil Procedure Code).
In the Code the joinder of actions is dealt with in an exhaustivemanner, but I think there is nothing in it to countenance thejoinder of a claim for damages in a partition suit.
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