( 174 )
SILVA v. PAULTJ et al.
C. R., Negombo, 3,974.
Partition—Action for, by party not in possession nor whose title is admitted.
As the Partition Ordinance (No. 10 of 1863) provides for the contin-gency of the defendants appearing and disputing the plaintiff’s title, theruling in Perera v. Perera (2 N. L. It. 370) that ah action for partitioncannot be brought by a party not in possession whose title is disputed,is unsound.
In partition suits the Court ought not to proceed on admissions,but must require evidence in support of the title of all the parties, andallot to no one a share except on good proof.
LAINTIFF purchased an undivided 8-10ths of a certain landfrom one Isaac and four of his five children. The out-
standing child (second defendant), together with 'her husband
( 175 )
(first defendant), denying the title of Isaac and his four children,claimed the land for themselves and refused to give possessionof it to plaintiff, who thereupon came into Court praying forpartition. The only issue framed by the Court was whether theplaintiff's vendors were entitled to 8-lOths of the land Kumbuk-gahawatta.
The Commissioner, after hearing the case for the plaintiff,dismissed his action on the ground that 'he was admittedly out ofpossession and his title was in dispute; and that the case ofPer era v. Per era (2 N. L. R. 370) was clearly in point.
Prim, for appellant.
Sampayo, for respondent.
Cur. adv. vult.
20th May, 1898. Lawkie, J.—
In this case for partition the issue framed was “ Were theplaintiff’s vendors entitled to 8-10ths of the land Kumbukgaha-watta?”
I am at a loss to understand why that issue was not fully triedand judgment given. After the plaintiff had closed his case theCommissioner gave judgment on an issue not raised. He heldthat the application for a partition of the land should be refusedwith costs. He held that the case of Percra v. Percra (I). C.,Colombo, 6,322), 2 N. L. R. 370, governed the present case. Butin that case the action was not dismissed: the plaintiff got adeclaration of title; and here the only issue was whether theplaintiffs were entitled to a similar declaration. I must set asidethe judgment and remit the case for further trial on the issueframed.
I am doubtful of the soundness of my ruling in Perera v.Pcrera, that an action for partition cannot be brought by a partynot in possession whose title is disputed. I am not sure that thePartition Ordinance supports these propositions. It confers theright to compel a partition or sale on any owner in common. Idoubt whether it be necessary for the plaintiff to aver and provethat he is in possession. It is not necessary that the plaintiff’stitle be admitted. The Ordinance provides for the contingencyof the defendants appearing and disputing the plaintiff’stitle, and indeed in partition suits the Court ought not to proceedon admissions, but must require evidence in support of thetitle of all the parties and allot to no one a share except on goodproof.
( 176 )
The circumstances of the case of Perera v. Perera were peculiar.In the present case the evidence, so far as it goes, is that theplaintiff was in possession and that he brought this action shortlyafter ouster.
I remit the case for further trial. The costs hitherto incurred toabide the final result.
SILVA v. PAULU et al