Tambimuttu v. Ratnasingham.
Present: Soertsz and Keuneman JJ.
TAMBIMUTTU v. RATNASINGHAM et al.
319—D. C. Jaffna, 7£32.
Cause of action—Misjoinder of parties and causes of action—Action to define
Where the plaintiff sued to have the common boundary definedbetween his land and other lands on the north and west which wereowned by different co-owners, the defendants,—
Held, that there was a misjoinder of parties and causes of action.
The plaintiff was allowed to elect in respect of which set of co-ownershe would proceed, the action against the others being dismissed.
> (1921) £2 N. L. R. 476.* (1913) 3 C. A. C. 83.
SOERTSZ J.—Tambimuttv v. Ratnasingham.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah, for plaintiff, appellant.
N. E. Weerasooria, for fifth to ninth defendants, respondents.
April 12, 1938. Soertsz J.—. Cur. adv. vult.
The plaintiff is the owner of the piece of land described in schedule Aof the plaint. The second, third, and fourth defendants are said to bethe owners of the land described in schedule B on the west of theplaintiff’s land, and the fifth, sixth, ninth, and tenth to the thirteenthdefendants the owners of the land described in schedule C, and lyingon the north of the plaintiff’s land.
In this action, the plaintiff seeks to have the correct boundary definedas between his land and the two lands on the north and on the west.He alleges that these boundaries have never been exactly fixed anddefined and that the parties have hitherto been possessing their landsonly, approximately. When the case came to trial, the defendants raised,by way of a preliminary issue, the question whether there was a mis-joinder of parties and, or, of causes of action. After hearing argumentsaddressed to him by Counsel for the respective parties the learnedJudge held that there was a misjoinder of parties and of causes of action,and dismissed the plaintiff’s action, and made a certain order in regard tocosts. The plaintiff appeals, and it is contended on his behalf, that theorder of the Judge was wrong because it cannot be said that an actionfor definition of boundaries is based on a “cause of action ’’ and that,therefore, there is no question here of a misjoinder of causes of action,and that so far as parties are concerned, the plaintiff is entitled in oneaction to have all his boundaries defined and, for that purpose, to bringbefore the Court all the parties interested in the adjoining lands.
Appellant’s Counsel relied on the case of Maria v. Fernando Butin my opinion, that case has no direct bearing on the question with whichwe are concerned in this case. That was an action for the definition ofboundaries in which the plaintiffs averred that “ the limits ….of the plaintiffs’ land having been from time to time shifted by thedefendants, there is now no proper fence or landmark defining the saidboundaries and the defendants, though often thereto -requested, do notconsent to have the said boundaries defined ”. The learned Commissionerof Requests dismissed the plaintiffs’ action, holding that “Some overtact of obstruction must …. be alleged to justify such anaction as this, viz., that the plaintiffs have sought to define theboundaries and have been prevented”. On appeal Pereira J. heldthat “ the averments in the plaint are sufficient to show that theboundary between the plaintiffs’ land and that of the first andsecond defendants has become uncertain and that, therefore, theaverments ….. are sufficient to have the boundary definedand settled ”. He added “ a cause of action in the strict sensein which that expression is used in the Civil Procedure Code is notabsolutely necessary in a case like this ”. Meaning, I take it, that it isnot necessary, as the Commissioner thought it was, to show that there
117 N. t. R. 95.
Inspector of Police, Batticaloa v. Ponniah.
was either “ a denial of a right, the refusal to fulfil an obligation, theneglect to perform a duty and the infliction of an affirmative injuryBut the question that arises in this case, viz., whether there can be amisjoinder of defendants in a case for the definition of boundaries wasneither raised nor decided in that case, although the plaintiffs sued theowners both of the land on the north and of that on the west. Appel-lant’s Counsel based his argument on this fact, and contended thatthe point was not taken in that case because in an action for thedefinition of boundaries, a plaintiff is unrestricted, and is entitled to suethe different sets of co-owners in one action if all his boundaries wereuncertain. I am unable to accept this view. It does not seem eitherfair or proper that the co-owners of the'land to the west should be in thecase while the boundary between the plaintiffs land and the land on thenorth is being tried as between him and the co-owners of the northernland. There is no reason apparent to me why they should be madeto lose their time and their money while that issue, is being tried. Andso vice sersa. There may conceivably be cases in which while thenorthern boundary is being defined the owners of the land on the east andwest should or could be brought into the action as co-defendants.Counsel for the appellant adduced certain instances to show that thatcourse might become necessary. But in the case before us, the plaintcontains no averment to show that the owners of the land on the northare interested in the definition of the western boundary or vice versa,and therefore, I can see no reason why both the owners of the northernand of the western lands should figure as co-defendants in the sameaction. To say the least, it is a most inconvenient course. I would,however, refrain from dismissing the plaintiff’s action altogether, andremit the case for the plaintiff to elect the set of defendants againstwhom he would proceed in this action. The action as aganist the otherdefendants will be dismissed with costs. The action will then proceedbetween the plaintiff and the defendants aganist whom plaintiff choosesto continue the action, but these defendants will be entitled to the costsof the trial date in the Court below and of this appeal in any event.All other costs will abide the result.
Keuneman J.—I agree.
TAMBIMUTTU v. RATNASINGHAM et al