009-NLR-NLR-V-57-WEERAKOON-et-al-Appellant-and-WAAS-et-al-Respondent.pdf
Present : Basnayake, A.C.J., and Pulle, J.WEER-AKOOX cl ah, Appellants, and WAAS U ah,Respondents '
S. G. 377—37S—D. G. (Final) Colombo, 3,077jP
Partition Act, A'o. 16 oj 10-il—Section 'J—Dismissal oj action—Jurisdiction ofCourt to allot shares among the defendants thereafter. -.
Wiicu nil ni-tion for partition of a lurid is dismissed oil tiio ground Hull thepinintifT }iri3 no titlo lo tlio lomi, tiio Court- Inis no jurisdiction to proceed toallot shares among tho ilefcndnnts if the defendants do not agreo to ask forpartition.
_/.PPEALS from a judgment of the District Court, Colombo.
IK. Jayaioardene, Q.G., with D. R. P. Goonetilleke, for the Plaintiff-Appellant in No. 377 and the Plantiff-Rospondent in No. 378.
S. Jat/awickrema, Q.G., with M. Rafcck and II. /.-. tie Silva-, for the1st and 2nd Defendant-Appellants in No. 37S and tho 1st and 2ndDefendant-Respondents in No. 377.
jY. E. Weerasooria, Q.G., with T. B. DissanayaJee, for the 30th to 34thDefendant-Respondents in both appeals.
June 22, 1955. _ Basnayake, A.C.J.—
This is an action for partition of a land called Pelengab awatta describedin the schedule to the plaint as all that allotment of land called Pelen-gahawatta-with the buildings and plantations thereon situated at Mahara-gama in the Palle Patt-u of Salpiti Koralo in the District of Colombo,Western Province, bounded on the North by Dewata Road, East byWcerakkodigewatta and Embuldeniyawewatta, on the South by a partof this land, and on the West by Kalutantrigewatta, containing in extentland sufficient to plant about 300 coconut plants in extent four acres.After trial the learned District Judgo found that tho plaintiff had notestablished title to the land and dismissed tho plaintiff's action. But headded :—..:
“ The defendants 30 to 34 in their answer denied the title of thedefendants 1 to 22 but admitted the titlo of the 20 to 22 defendants toan acre at tho trial.. I find that the owners of the land sought to ho
Z.VTI
2—-J. N. B. 48039-1,092 (10/50)
partitioned aro the defendants 30 to 34, 21, 22, 71, 72, as well as theother heirs of Jeelis and Babanis and tho defendants 4 to 19, 61 to 64,and 69 and 70 who aro tho children and grandchildren of Githan Haray.
Tho improvements are owned as follows :
Tho plantations on tho eastern side of tho land of ilie ago of 59 yoarsand above belong to the heirs of Jcclis and Babanis.
The other plantations belong to the 30 to 34 defendants.
Tho buildings and other structures arc owned as follows :
Ho then proceeded to allot the buildings.
It would appear from section 2 of tho Partition Act, No. 1G of 1951,that an action for partition can bo instituted only by a person to whom aland belongs in common with two or more persons. Tho Act creates aspecial jurisdiction and provides for a special procedure. Whoro aftortrial it appears that the basis on which tho action can bo brought is non-existent, tho Court cannot make any order other than tho dismissal oftho action and any other order which is ancillary to such order. ThisCourt has decided that in an action under tho repealed Partition Ordi-nance each party to a partition action had the double capacity of plaintiffand defendant and that ho who first brought tho action was taken to bothe plaintiff. It lias also been held by this Court that in an action undertho same' Ordinanco whero tho plaintiff failed to provo his title thero wasno objection to a partition among tho defendants who had establishedtheir titlo if they so desired it, bocauso dofondants in a partition actionaro for somo purposos in tho position of plaintiffs. Tho now Act is notdifferent from tho old Ordinanco in rospoct of tho provisions under whichthose decisions havo been given and decisions under the repealed Ordi-nance can ijroporly be regarded as applicable to tho new Act. But inthe instant caso the defendantsdid not agree to ask for a partition.
Thero aro two appeals, ono by tho plaintiff and tho other by tho 1stand 2nd defendants. Tho plaintiff-appellant has not satisfied us thattho learned District Judge is urong in Iris finding that ho has no titleto the land. Wo do not think that after having dismissed tho actionon tho ground that the plaintiff had no titlo tho learned District Judgohad any jurisdiction to pioceed to allot tho plantations and the housesamong the parties, to it.
'Wo accordingly set asido that part of the order which proceeds to allotplantations and buildings to various parties. Subjoct to that variation,tho appeal of the plaintiff is dismissed with costs.–
Tho parties who arc dissatisfied with tho learned trial Judge’s ordermade wit’ioiit jurisdiction have had to come to this Court to liavo it setaside.
The 1st and 2nd defendants-appellants are declared entitled to recovertho costs of this appeal from the 30th to 34th defendants who resistedtheir claims to tho land. –
Pi'iXE, J.—I agreo.
Appeal No. 377 dismissed.
Appeal No. 378 allowed.