107-NLR-NLR-V-05-SAMARASINHA-v.-BALAHAMY.pdf
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SAMABASTNHA v. BALAHAMY.
D. C., U-atara, 2,795.
Action for partition—Claim for damages.
In a partition suit, damages cannot be claimed or awarded.
Parties claiming damages in snch an action are liable to pay stamp duties onrthe part of their claim.
T
HE plaintiff prayed for the partition of a field and fordamages, in that “ the defendants wrongfully cultivated the
fertile portion of the land and appropriated the whole produce "for two years. The District Judge decreed partition and awardedBs- 25 damages.
Defendants appealed.
1002.May 20.
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1902,H. Jayawardene, for appellant.—Damages are not recoverable
Hay 20.a partition suit. Stamp duties are not payable in such a case,
but an action for damages cannot be raised free of stamps. Thedecree for partition merely is right, but the order as to damagesis wrong.
Bawa, for respondent.—Damages have been proved, and plain-tiff is entitled to them.
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20th May, 1902. Moncreiff, A.C.J.—
Plaintiff brought a partition suit and joined with it a claim fordamages. The trial took place, and the Judge granted decree forpartition and assessed the damages at Rs. 25. I think all partiesagreed in doing this, well knowing what they were about. So faras I am aware, the procedure of the Civil Code cannot be adaptedto the procedure in a partition case. It does not appear to be-thecustom to addi a cause of action for damages in partition cases,- andI think that the partition decree in this case should stand, and thatso much of the decree as deals with the claim for damages shouldbe set aside. The parties should pay the stamp duties leviable ohthat part of the claim, and as to the costs in appeal, parties willpay their own costs.
Wendt, J.—
I agree. It is certainly novel to me that in an action under thePartition Ordinance the plaintiff should join a claim for. damagesfor wrongful possession by the defendant of more than his share.I think there are many reasons of convenience against jsuch a- course being allowed.
The plaintiffs and the defendants will make good the amountof stamps whicluthey would have had to use on their pleadings ifthey had been stamped as for an- action for the amount of damageswhich Were claimed.
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