786 digest of decided cses partition word

1

Contents

BASIC GUIDELINES .................................................................................................

5

SRI LANKA LAW REPORT 2009 VOL 1 ..........................................................................

6

Section 68 - Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared -

Earlier law giving place to a later - law lex posterior derogate priori -leges posteriors

priores contrarias abrogant - non-est novum ut priores leges and posteriors. ..........

12

Right of representation – Partition- Party unrepresented on the trial date-judges duty

................................................................................................................................. 16

Partition suit- The importance attached to establishing the identity of the corpus- The

requirement that the corpus should be an independent land and not a portion of a

larger land- The system of land measure computed according to the extent of land

required sowing with paddy or Kurakkan.

......................................................................................... 22

The requirement to give the undivided share of the soil and rights each party is

entitled to in the interlocutory decree- failure to specify the specific undivided share-

consequences ..................................................................................... 25

Substitution- suppression- revision application-Maintainability ......................................

29

AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT- Section 66 of the

Partition Act- ........................................................................................ 32

AMENDMENT OF INTERLOCUTORY DECREE-INSUFFICIENT EVIDENCE-

Section 34 ................................................................................................................................

41

AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY OF THE

CORPUS-IMPORTANCE .................................................................... 43

2

APLICATION FOR REVISION AND/OR RESTITUTIO IN INTEGRUM-

PETITIONER HAD NO RIGHTS IN THE CORPUS- MAINTAINABILITY ..................

46

APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC 773 OF THE

CPC. REQUIREMENTS NECESSARY TO BE ESTABLISHED ......... 50

FAILURE TO PROSECUTE PARTITION ACTION- SPIRIT OF SECTION 70 OF

THE PARTITION LAW. ....................................................................... 54

APPLICATION TO REVISE AN ORDER CONFIRMING SCHEME OF PARTITION-

CONSIDERATION APPLICABLE ....................................................... 57

WHO CAN FILE AN APPEAL? IT IS ONLY A PARTY TO A CASE WHO IS

AGGRIEVED BY A JUDGEMENT CAN PREFER AN APPEAL .......... 60

WANT OF PROPER INVESTIGATION OF TITLE AND FAILURE TO SUBMIT

DECLARATION UNDER SECTION 12 ............................................... 62

DEFAULT OF APPEARANCE IN PARTION CASE- SECTION 28 OF THE C.P.C-

NON COMPLIANCE ............................................................................ 65

Section 70 of the partition act. Distinction between dismissal of action for

nonprosecution and withdrawal. Position of a defendant who had asked for the

dismissal of the action. ........................................................................................ 68

ERROR COMMITTED BY THE D.J. SECTION 189- POWERS CONFERRED TO

CORRECT SUCH MISTAKES .................................................................................

71

Consequences of a consent judgment. Agreement to abide by an order to be pronounced

after inspection. ......................................................................................................... 80

The 3rd defendant has not only agreed to abide by any order

pronounced by the district judge after such inspection but refrained from adducing any oral evidence when he was called

upon to do so. I have perused the petition and affidavit of the petitioner along with the other material available. The totality of

the 3rd defendant’s case as revealed by him points to lack of

‘exceptional circumstances’.......................................................................... 80

3

EXECUTION UNDER SECTION 52 OF THE PARTITION ACT ................

84

FAILURE TO ADDUCE EXCEPTIONAL CIRCUMSTANCES-PARTITION-

REVISION-SECTION 34 ..........................................................................................

87

FAILURE TO SATISFY COURT AS TO THE EXISTENCE OF ANY FUNDAMENTAL

VICE IN THE PROCEEDINGS. ........................................................... 89

FALSE CLAIM OF PRESCRIPTION PUT FORWARD BY THE 1ST DEFENDANT-

SELF EXPLANATORY NATURE OF THE UNSATISFACTORY CLAIM-LAW

APPLICABLE ........................................................................................................................

93

Right of access over the corpus IN A PARTITION ACTION.CONSIDERATION........

99 FRIVOLOUS APPEAL- PENAL COSTS- DEFENDANT ENTERED AS A

BOARDER CLAIMING PRESCRIPTIVE TITLE- SEC 3 OF THE PRESCRIPTION

ORD- HOW IT SHOULD BE

APPLIED................................................................................................. 102

The admission of a power to vary the requirements of a decree once passed would

introduce uncertainty and confusion. ................................................. 108

TRUST-PRESCRIPTION-SECTION 111 OF THE TRUST ORD ................................

114

Delay in filing revision .........................................................................................................

138

THE LAND SURVEYED AT THE PRELIMINARY SURVEY IS CONSISTENT WITH THE CORPUS

DISCLOSED IN THE PLAINT-IDENTITY OF THE CORPUS SUCCESSFULLY ESTABLISHED. .........

142

BASELESS GROUNDS OF APPEAL-RESULTING POSITION. THE APPELLANTS

HAVE ALSO COMPLAINED THAT THE 17TH DEFENDANT-RESPONDENT

WHO GAVE EVIDENCE ON BEHALF OF THE PLAINTIFF-RESPONDENT WAS

NOT IN POSSESSION OF THE CORPUS AND THAT THE QUESTIONS PUT TO

HER IN EVIDENCE IN CHIEF, WERE ALL LEADING QUESTIONS WHICH

SUGGESTED THE ANSWERS. AS THE APPELLANTS WERE REPRESENTED,

WHEN THE 17TH DEFENDANT-RESPONDENT GAVE EVIDENCE AND HAD

FAILED TO OBJECT TO LEADING QUESTIONS BEING PUT TO THE WITNESS,

THEY CANNOT BE NOW HEARD TO COMPLAIN ON THAT MATTER. ..........

142

SCHEME OF PARTITION-COMMISSIONERS PLAN-APPROACH TO BE

4

ADOPTED BY THE TRIAL JUDGE ........................................................................

147

RESTITUTIO IN INTERGRUM- LOCUS OF THE PETITINER-PETITIONER HAD NO

RIGHTS IN THE CORPUS .....................................................................................

162

REBUTTING THE PRESUMPTION ARISING UNDER SECTION 110 OF THE

EVIDENCE ORDINANCE. PARTITION ................................................................. 167

PROTECTION GIVEN TO PARTITION DECREES ..............................................

172

protection given to partition decrees from being attacked on the grounds of fraud, collusion,

omissions, defects, and of the failure to make “persons concerned" parties to the action

should not be construed as a licence to flout the provisions of the partition law and to

deprive others of their property rights to enrich conveniently at the expense of the victims.

.................... 172

PRICELESS ADVANTAGE OF SEEING THE WITNESSES AND OBSERVING THE

MANNER IN WHICH A WITNESS TESTIFIES. JUDGE’S FIRM OPINION AS TO

THE CREDIBILITY OF THE WITNESSES. RULE AGAINST INTERFERANCE OF

FINDING IN CREDIBILITY OF WITNESSES AS EXPRESSED BY THE JUDGE

LIGHTLY .............................................................................................................. 186

PRESCRIPTION-LICENSEE-INGREDIENTS NECESSARY ................................

187

PARTITION-CLAIM BASED ON PRESCRIPTION TO THE CORPUS BY A

CONTESTESTING DEFENDANT- EVIDENTIAL VALUE OF THE PARTIES IN THE

LIGHT OF THE DOCUMENTS-TRIAL JUDGES INCORRECT FINDINGS ON

FACTS- POWERS OF THE COURT OF APPEAL TO OVERRULE WRONG

INFERENCES DRAWN FROM FACTS ............................................ 188

PENDING PARTITION DEEDS- PRHIBITED TYPE OF ALIANATION200

PARTITION-INVESTIGATION OF TITLE............................................................... 208

PARTITION-IDENTITY OF THE CORPUS- ...................................... 210

PARTITION-EFFECT OF EXCLUSION-RES JUDICATA-EVIDENCE REQUIRED

TO ACQUIRE PRESCRIPTIVE TITLE TO A LOT EXCLUDED IN AN EARLIER

5

PARTITIONN CASE ..............................................................................................

221

PARTITION REVISION DELAY IN FILING THE APPLICATION ...... 230

PARTITION- NON SERVICE OF SUMMONS- SHOULD THE ID BE SET ASIDE-

CONSIDERATION APPLICABLE .......................................................................... 232

PREMAYAMENT ORDER- NON COMLIANCE- SCHEME OF PARTITION ..........

241

PARTITION- INVESTIGATION OF TITLE-MISDIRECTION .................................. 243

PARTITION-INVESTIGATION OF TITLE-NOTHING CAN BE ACQUIRED FROM

A CO-OWNER WHO HAS EXHAUSTED HIS RIGHTS ........................................

248

PARTITION- FINAL DECREE- WRIT OF POSSESSION -SEC 52 OF THE

PARTITION ACT ....................................................................................................

261

PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT ...............................

266

PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT .............................

266

PARTITION ACTION-BONA FIDE IMPROVER- COMPENSATION ......................

270

CA 1330/96 F DC Galle 7445/P to be named ........................................................ 272

PARTITION-PRESCRIPTION-LAW APPLICABLE ........................... 285

PARTITION-FAILURE TO APPRECIATE THE BURDEN OF PROOF OF

CERTAIN FACTS-.............................................................................................. 295

PARTITION-PRESCRIPTION-LACK OF EVIDENCE ON OUSTER. ...................

308

NECESSITY TO IDENTIFY THE CORPUS .......................................................... 315

IT IS TRITE LAW THAT PROOF OF ORIGINAL OWNERSHIP OF A LAND IS NOT

ALWAYS PLACED AT A VERY HIGH DEGREE AND AS SUCH THE PLAINTIFF

6

SHOULD HAVE BEEN SHOWN SOME LENIENCY RELATING TO THE PROOF OF

ORIGINAL OWNERSHIP. ......................................................................................

320

proof of original ownership of a land is not always placed at a very high degree and as such the plaintiff should have been shown

some leniency relating to the proof of original ownership- identity

of the corpus-- discrepancy arising on the preliminary survey ....

320

ISSUES RAISED BY THE TRIAL JUDGE IN THE COURSE OF WRITING

JUDGMENT- PERMISSIBILITY ...........................................................................

325

Irregular procedure adopted by court compelling the 4th defendant-petitioner to participate at the trial in person has ended

up in a miscarriage of justice, in that the 4th defendant-petitioner had to forego the right conferred under 48(4)(iv) of the Partition

Act. ....................................................................................................................... 335

INSPECTION OF THE SUBJECT MATTER OF CONSENT OF PARTIES- CAN

THE DECISION MADE AFTER THE INSPECTION BE CHALLENGED .............

343

Section 36A of the partition act. ........................................................ 347

any party who is aggrieved by an order made under section 36 is required to make an application for leave to appeal within the period of 14 days. Without explaining the circumstances which prevented the petitioner from resorting to section 36A of the Partition Act, she is unable to have and

maintain the present application for revision as presently constituted ...

347

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appeal on request and upon payment of the specified fee.

7

SRI LANKA LAW REPORT 2009 VOL 1

GUNASINGHE

vs

PODIAMMA AND OTHERS

COURT OF APPEAL ABDUL

SALAM, J.

CA 1782/2002 (REV.)

DC KULIYAPITIYA 7466/P

AUGUST 25, 2008

Partition Law - Part of a larger land partitioned? - Discrepancy

in the extent in the plaint and in the preliminary plan -

Investigation of title - Duty of Court - Proof of original ownership

-Degree ofproof? - Lis pendens.

The petitioner seeks to revise the judgment on the ground

that, the District Court had failed to take into consideration

the fact that what was sought to be partitioned was a part of a

larger land, and the discrepancy in the extent of the subject

matter in the plaint and the preliminary plan is about %of an

acre and therefore it cannot be treated as marginal or

negligible and that the registration of the lis pendens being in

respect of an extent of 3Y2Acres, the action could not have

proceeded without any amendment of the plaint.

Held:

(1) A perusal of the preliminary plan clearly shows that

the boundaries of the subject matter as described in the said

plan are identical to that of the boundaries set out in the

deeds produced by the plaintiff and the land set out in the

plaint.

(2) The indefinite or undefined eastern boundary on the

preliminary plan would not necessarily mean that the land

8

surveyed for purpose of the action is only a portion of a larger

land.

Per Abdul Salam, J

"It is trite law that proof of original ownership of a land is not

always placed at a very high degree and as such the plaintiff

should have been shown some leniency relating to the proof of

original ownership.

175

APPLICATION in Revision from an order of the District Court

of Kuliyapitiya.

Cases referred to:-

1. Brampy Appuhamy us. Mendis Appuhamy - 60 NLR337

2. W. Uberis us. Jayawardane - 62 NLR 217

3. K. M. G. D. Vias us. Kariyawasam Majuwana Gamage - CA

897/92

Dr.Jayantha de Almeida Gunaratne PC with Ayendra

Wickremasekera and Lasith Chaminda for petitioner.

M. C. Jayaratne with N. Senaratne for 1st and 2nd

respondents.

Cur.adv.vult

February 10, 2009

ABDUL SALAM, J.

This is an application made in revision to have the judgment

and interlocutory decree dated 2nd May 2002 set aside

and/or revised or to have the plaintiffs action dismissed and/

or for an order directing a retrial of the case.

The plaintiffs instituted the partition action in respect of a land called Mahawatta alias Innawatta alias Erumaliyadda which was depicted for the purpose of the partition action by

9

preliminary plan No. 620 prepared by R. A. Navaratne, Licensed Surveyor.

Admittedly, the subject matter is depicted as lots 1 and 2 in

plan No. 620 aforesaid. The learned district Judge having

examined the deeds produced by the parties and the

admissions made by them as regards the identity of the

corpus, arrived at the conclusion that the subject matter of

the partition action comprises of lots 1 and 2 depicted in plan

No. 620.

Quite contrary to the admissions recorded at the instance of

the parties, the petitioner now seeks to resile from

176

the agreement and argue that the learned District Judge has

failed to take into consideration the fact that what was sought

to be partitioned was a part of a larger land. Hence, the

petitioner contends that the District Judge ought to have

proceeded to take steps to have the correct subject matter

depicted in reference to a different survey plan and not

entered an interlocutory decree to partition the land.

The petitioner has urged that the discrepancy in the extent of

the subject matter as given in the plaint and the preliminary

plan is about % of an acre and therefore cannot be treated as

a marginal or negligible inconsistency. It is further submitted

on behalf of the petitioner that the registration of the lis

pendens being in respect of an extent of 3 Y2 acres, the action

could not have proceeded without any amendment of the

plaint and a fresh lis pendens. The learned President's

Counsel of the petitioner relies on the judgments of Brampy

Appuhamy us Mendis Appuhamy(l) W. Uberis us.

Jayawardena(2) and K. M. G. D. Dias us. Kariawasam

Majuwana GamageP) to drive home his point that the learned

district judge should not have entered interlocutory decree to

partition the subject matter.

In the case of Brampy Appuhamy us Mendis Appuhamy

(Supra) the corpus sought to be partitioned was described in

the plaint as a land about 6 acres in extent and the

10

communication issued to the surveyor was to survey a land of

that extent. However the surveyor could survey a land of only

2 acres and 3 roods. Interlocutory decree was entered in

respect of the land of 2 acres and 3 roods, without any

question being raised by the parties as to the extensive

inconsistency between the extent given in the plaint and that

which was shown in the plan made by the surveyor. It was

held that the court had acted wrongly in proceeding to trial in

respect of what appeared to be a portion only of the land

described in the plaint.

177

In the case of W. Uberis us. Jayawardena (supra) the plaint in

the partition action was amended so as to substitute a new

corpus for the one described in the first plaint and it was held

that a fresh lis pendens would be necessary to maintain the

action.

In the case of K. M. G. D. Dias us Kariawasam Majuwana

Gamage (Supra) the plaintiff sought to partition a land in

extent 4 acres 3 roods 12.1 perches being in extent after

excluding 5 acres 4.9 perches which was acquired by the

State from and out of a larger land in extent 9 acres 3 roods

17 perches. The lis pendens registered was in respect of a

larger land in extent 9 acres 3 roods 17 perches, which was

inclusive of the extent of 5 acres 4.9 perches that formed the

portion said to have been acquired by the State. The

description of the land even in the plaint was that of the

larger land that existed prior to the acquisition. It was held

that the District Judge had committed a cardinal error in

ordering a partition in respect of the land which is a portion of

the larger land.

The facts however in this case are quite different. The plaintiff

in his plaint sought to partition a land in extent of about 3Y2

acres the boundaries of which are described to be on the

North, East and West by the lands belonging to Mudalihamy

Mahathmaya and others and on the South by lands owned by

Sundara Bandara and others. At this stage it is of paramount

importance to note the boundaries described in the

11

preliminary plan No. 620. A perusal of the said plan clearly

shows that the boundaries of the subject matter as described

in the said plan are identical to that of the boundaries set out

in the deeds produced by the plaintiff and the land set out in

the schedule to the plaint. Even the document marked PI sets

out the boundaries of the subject matter as the lands

belonging to Mudalihamy

178

Mahathmaya and others on the North, East and West and by

lands owned by Sundara Bandara and others on the South.

Quite consistent with the boundaries given in PI, the

documents marked as P2, P3, P4, PS and P6 describe the

boundaries of the subject matter in the same manner as has

been described in PI and also in the plaint. The lis pendens

also contain the identical boundaries given in the plaint.

In the circumstances, the subject matter of the partition

action cannot be said to be a portion of a larger land as has

been contended by the petitioner. The indefinite or undefined

eastern boundary on the preliminary plan would not

necessarily mean that the land surveyed for purpose of the

action is only a portion of a larger land, as the petitioner had

attempted to make out. Consequently, the discrepancy cannot

be considered as being so material, particularly in view of the

unequivocal admissions made by the petitioner and other

parties as to the identity of the corpus.

The learned trial Judge in his judgment has carefully

considered the contents of the deeds produced on behalf of

the petitioner prior to his concluding that the land dealt in the

deeds produced by them are not applicable to the subject

matter. Even as regards the original owner referred to by the

petitioner the learned District Judge has given cogent

reasons, before he rejected the version ofthe petitioner.

According to the learned District Judge the land referred to in

the deeds produced by the petitioner is different from the land

sought to be partitioned by the plaintiff. Further the surname

of Punchirala referred to by the petitioner is totally different

12

from the surname of Punchirala referred to in the plaint as

the original owner.

It is trite law that proof of original ownership of a land is not

always placed at a very high degree and as such the plaintiff

should have been shown some leniency relating

179

to the proof of original ownership. In any event 14th to 17th

defendants have failed to establish the devolution of title to

the corpus and also failed to prove prescription accompanied

by an element of ouster by an overt act.

For the foregoing reasons it is my view that the revision

application of the petitioner should fail. Hence I make order

accordingly.

I make no order as to costs.

Application dismissed.

14

Section 68 - Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared - Earlier

law giving place to a later - law lex posterior derogate priori -leges posteriors priores

contrarias abrogant - non-est novum ut priores leges and posteriors.

Sri Lanka Law Reports

2009 - Volume 1 , Page No - 95


95

WIMALAWATHIE vs

HEMAWATHIE AND OTHERS

COURT OF APPEAL ABDUL SALAM. J CA 825A-825B/2001 (F) DC COLOMBO 14522 P SEPTEMBER 24,2007

Partition Act No.16 of 1951 - Law No. 44 of 1973 - Partition Law No. 21 of 1977 - Section 68 -

Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared - Earlier law giving place

to a later - law lex posterior derogate priori -leges posteriors priores contrarias abrogant - non-

est novum ut priores leges and posteriors.

In the partition action instituted by the plaintiff appellant to partition the corpus, the trial judge

rejected the deeds of the plaintiff as the plaintiff could not prove the execution of the said deeds.

The said deeds were marked subject to proof but not proved.

In appeal it was contended that calling for proof of documents produced by the plaintiff appellant

contravenes Section 68 of the Partition Law.

Held:

(1) The finding in relation to the want of proof of the documents produced by the plaintiff and the

10th defendant blatantly contravenes Section 68 of the Partition Law, which provides that it shall

not be necessary in any proceedings under that law to adduce formal proof of the execution of

any deed which on the face of it, purports to have been dilly executed unless the genuineness of

that deed is impeached by a party claiming adversely to the party producing that deed or unless

the Court requires such proof.

http://www.lawlanka.com/lal/relatedSections?caseId=2009SLR1V95&searchPage=true

15

(3) The execution of documents required by law to be attested should be 'proved by calling at

least one subscribing witness - Section 68 Evidence Ordinance which was enacted in 1895.

This precedes

96

the Partition Act 16 of 1951, Law 44 of 1973 and Partition Law, 21 of 1977, thus later laws

repeal earlier laws in-consistent - there with and earlier act must give place to a later, if the two

cannot be reconciled.

cur.adv.vult

APPEAL from the judgment of the District Court of Colombo.

Cases referred to:-

1. Sri Lanka Ports Authority us. Jugolinga - 1981 - 1 Sri LR 18

2. Cooper us. Wilson - 1937 - 2 KOB 300

L. W. Wettasinghe with Kapila Jayasekera for plaintiff-appellant

Rohan Sahabandu for 10th defendant-respondent

May 05,2009

ABDUL SALAM, J.

The question that arises for determination in this appeal involves an important aspect of the law

relating to the mode of proof of deeds, in a partition action. Understandably, there are no

precedents on a similar legal question originating either from this Court or any other courts of

superior jurisdiction. It is therefore necessary, to set out in detail the circumstances that had led

up to the present appeal and the law that is applicable.

The plaintiff-appellant (Plaintiff) filed a partition suit against the pt to 10th defendant-respondents

(hereinafter collectively referred to as the "defendants" or individually as 1 to 10 defendants as

the case may be) to partition a land alleged to be owned in common. Some of the defendants

denied the devolution of title set out by the plaintiff, but put forward a chain of title, which

materially deferred from that of the title pleaded by the plaintiff. The plaintiff and the 18tto 9th

defendants are siblings and cousins and the 10thdefendant is the mother of the pt, 2nd, 6th ,7th,

8th and 9th defendants. The main question that arose for determination was whether the subject

matter of the action should be partitioned as per the pedigree set out in the plaint or in the

statement of claim of the contesting defendants.

At the trial the plaintiff gave evidence in support of her case and produced 7 deeds marked as

PI to P7 in order to establish her title and led the evidence of the Notary Public who attested the

documents marked as P3 and P6. Remarkably five of these deeds were originals and the rest

were certified copies. PI has been executed as far back as in 1913, P2 in 1943, P3 in 1971, P4

in 1952, P5 & P6 in 1971 and P7 in 1956. The partition action has been instituted on 3rd July

1986. The deeds produced by the plaintiff were 23 to 81 years old as at the time when they

were produced in court in the year 1994.

None of the defendants chose to impeach the genuineness of the deeds produced at the trial

marked as PI to P7, even though they denied in their statement of claim, the devolution of title

set out by the plaintiff. However, when PI and P3 to P7 were sought to be produced in evidence,

the 18tand 5th to 8th defendants insisted on the proof of the same. The learned district Judge

16

thereupon allowed the documents to be produced subject to proof. As referred to above, the

plaintiff called evidence only in proof of the execution of P3 and failed to call the notary or the

subscribing witnesses to PI, P3 to P7. At the end of the plaintiffs case, the. defendants. who

insisted on proof of the said deeds, pointed out to court that they have not been proved and the

learned district Judge accordingly made a note to that effect. Thereafter based on the judgment

in Sri Lanka Ports Authority us Jugolinija(1) learned District Judge rejected the said deeds and

held that the plaintiffs prescriptive possession should also fall as she could not prove the

execution of the said deeds.

The learned counsel of the plaintiff has submitted that the error of .law in rejecting the deeds of

the plaintiff is contrary

98

to the provision of section 68 of the Partition Law and has completely dominated the learned

district Judges thinking in arriving at his conclusion, as it stands repeated at seven places in the

judgment, to wit; at pages 387,392,394,395,396 and 402 of the brief.

Furthermore the 10th defendant who was the mother of some of the parties who claimed life

interest to house No 414 ( her matrimonial home) on deed 10 D 1 (P5) that vested title on the

plaintiff, had marked the said deed and 8 other documents. Even assuming that the burden cast

formally to prove deeds in a partition action cannot be faulted, yet the learned district Judge had

totally misdirected himself when he had not considered the evidence of the only surviving

subscribing witness to the said deed Somadasa (page 258) whose uncontested testimony was

with regard to the due execution of the saiq deed. This evidence was completely ignored by the

learned District Judge who proceeded to arbitrarily dismiss the 10th defendants claim contrary

to his own misinterpretation of the law. Moreover, the learned district Judge has failed to

appreciate that none of the documents produced by the 10th defendant had been objected to by

the contesting defendants.

The aforesaid finding of the learned judge in relation to the want of proof of the documents

provided by the plaintiff and the l{)th defendant, blatantly contravenes section 68 of the Partition

Law which provides that it shall not be necessary in any proceedings under that law to

adduceformal proof of the execution of any deed which, on the face of it, purports to have been

duly executed, unless the genuineness of that deed is impeached by a party claiming adversely

to the party producing that deed, or unless the court requires such proof.

Noticeably the only deed that had been so challenged was P3. Even in respect of P3, evidence

in rebuttal had been led

99

through the 10thdefendant. This aspect of the case has also not been properly considered by

the trial judge.

The execution of documents, required by law to be attested should be proved by calling at least

one subscribing witness is contained in section 68 of the Evidence Ordinance that was enacted

in 1895. This precedes the Partition Act No. 16 of 1951, Law No 44 of 1973 and Partition Law

21 of 1977. In this connection it is appropriate to refer briefly to the maxims Lex Posterior

derogat priori and Leges posteriors priores contrarias abrogant which respectively mean that

later laws repeal earlier laws inconsistent therewith and earlier Act must give place to a later, if

the two cannot be reconciled. The maxim non est novum ut priores leges and posterios also

would be applicable in this context. (see Cooper Vs Wilson) (2)

The learned counsel of the contesting defendants has contended that even if the genuineness

of a deed had not been impeached in the statement of claim, yet the learned district Judge is

entitled to insist on the proof of a deed as he is vested with the discretion to do so under section

17

68 of the Partition Act. Even though the contention of the learned counsel on this matter is not

incorrect, a careful scrutiny of the entire proceedings clearly points to the fact that the learned

District Judge had in reality not insisted on the proof of the deeds produced by the plaintiff on his

own volition, in the exercise of the discretion vested in him under section 68, but merely as a

matter of routine allowed the documents to be marked subject to proof, upon being insisted to

that effect by the contesting defendants, without considering the applicable law.

As such it would be seen that the learned judge has manifestly failed in his fundamental duty to

properly

100

investigate title which had resulted in a grave miscarriage of justice. Hence, the impugned

judgment and interlocutory decree should necessarily be set aside on this ground alone and

accordingly I set aside the same. The learned district Judge is directed to investigate title once

again. I make no order as to costs.

Appeal allowed.

Trial de Novo Ordered

18

Right of representation – Partition- Party unrepresented on the trial date-judges duty


2008 - Volume 1 , Page No - 377


377

RANJITH PERERA AND ANOTHER v

DHARMADASA AND OTHERS

COURT OF APPEAL SALAM,

J. CA 1754/2004 DC HORANA 5387/P JANUARY 8,2008

Partition Law 21 of 1977 - Section 48 (4), Joint statement of claim - Trial date - Registered Attorney absent - One claimant taking part in the proceedings - Sections 24, 27(2) Civil

Procedure Code -Applicability - Procedural Law - Its importance - Investigation of title? -

Permission to conduct his own case - Not recorded? - Fatal?

The 3rd and 4th defendants-petitioners who had jointly nominated a registered Attorney-

atlaw and filed a joint 'statement of claim sought to revise the judgment and the interlocutory

decree, on the basis that, they were unrepresented at the trial, and that the trial Judge

should not have put the 4th defendant-petitioner into the witness box without legal

19

assistance and permitted him to cross examine when he had a registered attorney on

record. The petitioners also allege that, there was no investigation of title, and that, there

was no settlement.

Held:

(1) As long as a party to a case has an Attorney-at-law on record, it is the Attorney-at-

law on record alone, who must take steps and also whom the Court permits to take steps.

When the 4th defendant-petitioner attended Court without being represented by his

Attorney-at-law or a Counsel (Section 27(3)) the trial Judge should have considered him as

a party having failed to appear at the trial as the Court has chosen to do so in the case of

the 3rd defendant-petitioner. Further there is no indication pointing to the 4th

defendantpetitioner having sought permission of Court to cross-examine the plaintiff or to

present his case in person either.

Per Abdul Salam, J.

"As far as the 4th defendant-petitioner is concerned by improperly extending the right of

audience to him at the trial. the trial Judge has proceeded on the

378

basis that the judgment and interlocutory decree were entered interpartes, this procedure

wrongly adopted by Court has deprived the 4th defendant-petitioner of the right to invoke

Section 48(4)".

(2) The trial Judge had recorded at the commencement of the trial that the parties had

resolved the disputes and the Court has proceeded to hear evidence without points of

contest, before it was so recorded the trial Judge owed a duty to explain to the 4th

defendant-petitioner the manner in which the disputes have been resolved and to make a

contemporaneous reference to that fact in the proceedings.

If the 4th defendant-petitioner was a party to the compromise, need for cross examination of

the plaintiff by the 4th defendant-petitioner would not have arisen - this clearly shows that

the 4th defendant-petitioner was not a party to the compromise recorded at the

commencement of the trial.

(3) Omission to give a party to a suit an opportunity of being heard is not merely an

omission of procedure but is a far more fundamental matter in that it is contrary to the rule

of natural justice embodied. There has been no investigation of title.

(4) The protective character of procedural law has the effect of safeguarding every

person in his life, liberty, reputation, livelihood and property and ensuring that he does not

suffer any deprivation except in accordance with the accepted rules of procedure - Dr.

Amerasinghe in Femando v Fernando.

APPLICATION in Revision from an order of the District Judge of Horana.

Cases referred to:

(1) Seelawathie and Another v Jayasinghe 1985 2 Sri LR 266 .

(2) Hameed v Deen and Others 1988 2 Sri LR 1.

(3) Fernando v Fernando 1997 3 Sri LR 1.

(4) Siriya v Amalee 60 NLR 269.

20

(5) Punchibanda v Punchibanda

(6) W.G. Rosaleen v H.B. Maryhamy 1994 3 Sri LR 262.

Chandana Prematilaka for the 3rd and 4th defendant-petitioners.

Rohan Sahabandu with Piyumi Gunatilaka for the plaintiff-respondent.

Cur.adv.vult.

March 19, 2008

ABDUL SALAM, J.

The petitioners who were the 3rd and 4th defendants in the above partition action, have

presently applied to revise the judgment dated 1 July 2004 and interlocutory decree entered

thereon. They allege

379

that they were unrepresented at the trial and hence denied of a fair trial. Their position is

that the learned trial judge erred when he proceeded to decide the action interpartes against

the 4th defendant. It is averred in the petition that the learned trial judge should not have put

the 4th defendant-petitioner into the witness box without legal assistance, when he had a

registered attorney on record.

As a matter of law, the petitioners contend that the District Judge concluded the case on

the same day it was taken up for hearing and thereby effectively shut out evidence of the

3rd and 4th defendants regarding their title and had compromised his sacred duty to

investigate the title.

When unnecessary details are filtered out the factual background relevant to the revision

application would appear to be uncomplicated. It involves a fundamental question of law

and how pertinently it had been applied in the circumstances peculiar to the revision

application.

The petitioners have jointly nominated a registered Attorney to be on record. They filed a

joint statement of claim disputing the averments in the plaint. On the date the matter was

set down for trial the registered Attorney of the petitioners was absent. Accordingly both

petitioners were unrepresented. Yet, the 4th defendant-petitioner was present at the trial.

The learned District Judge in the course of the trial had allowed the 4th defendant to

cross examine the plaintiff and also present his case in person. Thereafter he had delivered

judgment to partition the land allotting certain undivided rights to the plaintiff and leaving the

balance rights unallotted.

Thus, the learned District Judge had obtained the assistance of the 4th defendant to

resolve the dispute by effectually making him to participate throughout the trial. The record

does not indicate as to whether the 4th defendant-petitioner sought permission of Court to

conduct his own case. There is no indication pointing to 4th defendant- petitioner having

sought permission of Court to cross-examine the plaintiff or to present his case in person

either. In the absence of any specific mention being made in proceedings to the contrary, I

consider it as reasonable to assume that the learned District Judge on his own had involved

the 4th defendant in the trial proceedings.

380

21

The main question that arises for determination in this matter is the applicability of section

27(2) of the Civil Procedure Code. In terms of Section 27(2) aforesaid when an appointment

of a registered Attorney is made in terms of Section 27(l) of the Civil Procedure Code, such

appointment shall be in force until revoked with the leave of Court and after notice to the

registered Attorney by a writing signed by the client and filed in Court.

The effect of an appointment of a registered Attorney under Section 27(1) has been

considered by this court on many an occasion. Suffice it would be to cite the judgment in

Seelawathie and Anotherv Jayasinghe(1) and Hameed v Deen and Others(2) where in the

former case it was authoritatively held that as long as a party to a case has an Attorney-

atlaw on record, it is the Attorney-at-law on the record alone, who must take steps, and also

whom the Court permits to take steps. It is a recognised principle in Court proceedings that

when there is an Attorney-at-law appointed by a party, such party must take all steps in the

case through such Attorney-at- aw. Further, the established principle is that a party, who is

represented by an Attorney-at-law, is not permitted to address Court in person. All the

submissions on his behalf should be made through the Attorney-at law who represents him.

The learned Counsel of the petitioners has also cited the judgment in the case of

Hameed v Deen (supra) in which it was held that when there is an Attorney-at-law

appointed by a party, every step in the case must be taken through such Attorney-at-law.

The appointment of the Attorney-at-law under Section 25 of the Civil Procedure Code

remains valid in terms of Section 27(2) until all proceedings in the action are ended or until

the death or incapacity of the Attorney. The registered Attorney or Counsel instructed by

him alone could act for such party except where the law expressly provides that any party in

person should do any particular act.

The 4th defendant- petitioner has been suddenly called upon to cross examine the

plaintiff and later to present his own case by the learned District Judge, immediately after

the closure of the plaintiff's case, disregarding the fact that there was a registered Attorney

on record. When the 4th defendant attended Court without being represented by his

registered Attorney or a Counsel as contemplated under Section 27(3) of the Civil Procedure Code, the learned District

381

Judge should have considered him as a party having failed to appear at the trial, as the

court had rightly chosen to do in the case of the 3rd defendant-petitioner.

It is quite significant to advert to the adverse consequences that flow from the learned

judge's approach to identify the proceedings as interpartes. As far as the 4th

defendantpetitioner is concerned, by improperly extending the right of audience to the 4th

defendantpetitioner at the trial, the learned District Judge has proceeded on the basis that

the judgment and interlocutory decree were entered interpartes. This procedure wrongly

adopted by Court has deprived the 4th defendant petitioner of the right to invoke Section

48(4)(iv) of the Partition Act, No. 21 of 1977. Had the learned District Judge followed the

22

provisions of the Civil Procedure Code and considered the 4th defendant-petitioner as a

party who had failed to appear at the trial or as a party in default of appearance, the 4th

defendant-petitioner could have legitimately exercised his rights under 48(4)(iv) of the

Partition Act to obtain Special Leave of Court to invoke the jurisdiction of the original Court

to amend or modify the interlocutory decree to such extent and in such manner as the Court

could have accommodated the entitlement, if any, of the 4th defendant-petitioner.

On the contrary, the irregular procedure adopted by Court compelling the 4th

defendantpetitioner to participate at the trial in person has ended up in a miscarriage of

justice, in that the 4th defendant-petitioner had to forego the right conferred under 48(4)(iv)

of the Partition Act. It is of much importance to observe that the learned trial judge recorded

at the commencement of the trial on 1 July 2004 that the parties have resolved the disputes

and the Court proceeds to hear evidence without points of contest. Before it was so

recorded the learned District Judge owed a duty to explain to the 4th defendant petitioner

the manner in which the disputes have been resolved and to make a contemporaneous

reference to that fact in the proceedings. As there is no such reference found in the

proceedings, I am not disposed to take it for granted that the learned District Judge has

either consulted the 4th defendant-petitioner regarding the settlement or enlightened him as to its

consequences. Had the learned District Judge taken the precaution to ensure that the 4th

382

defendant-petitioner also would be bound by such a settlement, he would have specifically

referred to the 4th defendant as a party to the settlement.

On the other hand, if the 4th defendant-petitioner was a party to the compromise, the

need for cross-examination of the plaintiff by the 4th defendant-petitioner would not have

arisen. Above all, when the 4th defendant-petitioner had purportedly cross-examined the

plaintiff posing only one question suggesting that Johanis was entitled to only 1/6th share

and not 1/2 as claimed by the plaintiff, the learned trial judge ought to have realized that the

4th defendant-petitioner was trying to resile from the compromise. Without clarifying this

from the 4th defendant-petitioner as to whether he was trying to pull himself out from the

compromise the learned Trial Judge appears to have simply raised two points of contest

and answered the same on the same day. This clearly shows that the 4th

defendantpetitioner was not a party to the compromise reached at the commencement of

the trial and the learned District Judge in fact should have raised points of contest at the

commencement of the trial itself.

The learned District Judge does not appear to have taken into account the miserable

plight of the 4th defendant-petitioner who should not have been held responsible for the

dereliction of duty of the registered Attorney. The 4th defendant-petitioner was in his.

eightieth year when he was suddenly called upon to cross-examine a witness in a

contested partition case and to present his case too. Even a lawyer with experience cannot

be expected to discharge his functions satisfactorily if he is confronted with the difficulty

which the 4th defendant-petitioner had to face.

The learned District Judge possibly in his enthusiasm to dispose of the case without

delay has lost sight of the importance of the law of Civil Procedure. As has been stated by

Dr. Amerasinghe, J. in Fernando v Fernando(3)"civil procedural laws represent the

orderly, regular and public functioning of the legal machinery and the operation of

the due process of law. In this sense the protective character of procedural law has

the effect of safeguarding every person in his life, liberty, reputation, livelihood and

property and ensuring that he does not suffer any deprivation except in accordance

with the accepted rules of procedure.

383

23

Although recklessness on the part of the 4th defendant-petitioner and dereliction of duty by

the registered Attorney cannot be denied, yet the irregular procedure adopted by the

learned Judge is totally unwarranted and unjustifiable.

In Siriya v Amalee et.al (4) it was held that an omission to give a party to a suit an

opportunity of being heard is not merely an omission of procedure but is a far more

fundamental matter in that it is contrary to the rule of natural justice embodied in the maxim

audi alteram partem.

In the result the manner in which title has been investigated by Court does not appear to

be consistent with the law that is required to be followed in the investigation of such title.

In the circumstances it is my view the irregular procedure followed by the learned District

Judge has ended up in a miscarriage of justice which transcends the bounds of procedural

error.

It is appropriate to quote the relevant passage from the judgment of Soertsz, J.

Punchibanda v Punchibanda(5)that has been cited with approval by his Lordship S.N. Silva,

J. (as he then was) in W.G. Rosalin v H.B. Maryhamy(6) which reads as follows:

"This Court has often pointed out that when settlements, adjustments, admissions, & c., are

reached or made, their nature should be explained clearly to the parties, and their

signatures or thumb impressions should be obtained. The .consequence of this obvious

precaution not being taken is that this Court has its work unduly increased by wasteful

appeals and by applications being made for revision or restitutio in integrum. One almost

receives the impression that once a settlement is adumbrated, those concerned, in their

eagerness to accomplish it, refrain from probing the matter thoroughly lest the settlement

fall through. This is a very unsatisfactory state of things and it is to be hoped that a greater

degree of responsibility will be shown on these matters by both judges and lawyers".

For the foregoing reasons it is my view that the application of 4th defendant-petitioner

should be allowed. The 3rd defendant petitioner has no ground to challenge the propriety of

the

384

impugned judgment by way of revision as he is entitled to invoke section 48(4)(iv) of the

Partition Act. Hence the application of the 3rd defendant-petitioner is refused.

The judgment and interlocutory decree are accordingly set-aside and the learned District

Judge is directed to investigate the title afresh, affording both the 3rd and 4th defendant

petitioners an opportunity to participate at the trial.


Application allowed.

Judgment/interlocutory decree set aside.

Trial to proceed.

24

Partition suit- The importance attached to establishing the identity of the

corpus- The requirement that the corpus should be an independent land

and not a portion of a larger land- The system of land measure computed

according to the extent of land required sowing with paddy or Kurakkan.

Case No.CA 957/96 (F) DC Matugama 1021 P

Kalamba Arachchige Pedoris Vs.

Madawala Wattage Benjamin

S.N. Vijithsingh for the 14th Defendant- Appellant and Sanath Vitharana

with Mahanama Dissanayake for 1 A, 1B Substituted Plaintiff-Respondent.

Argued on : 05.03.2012 Decided on :

22.05.2012.

A.W.A. Salam J.

This is an appeal from the judgement dated 12 September 1996 to partition the

land depicted in the preliminary plan bearing No 195 dated 30 December 1986

made by P D C W Hewadikaram, Licensed Surveyor and Commissioner. The

only question that arose for determination in the district court was whether the

land depicted in the preliminary plan is a portion of a larger land depicted as lot

103 in the village final plan No 82, in extent 10 acres 2 roods and 13 perches.

According to the plaintiff, the corpus is known as Kanapatymulle Kumbura

Pitakattiya and Nagahapaliya. The contesting defendant, namely, the 14th

defendant-appellant maintained that the expression "Pitakattiya" in Sinhala is

used to refer to the portion of a land outside a paddy field and therefore the land

described as "Kaapathimulle Kumbura Pitakattiya" cannot be considered as a

land of 5 bushels of paddy sowing extent. On behalf of the appellant it was

contended that 5 bushels being equivalent to 10 roods as per decision in

Ratnayaka Vs Kumarihamy 2002 Vol 1 SLR page 60, the corpus depicted in the

preliminary plan is a portion of a larger land. For purpose of convenience the

relevant passage from the judgement in Ratnayaka Vs Kumarihamy is

reproduced below...

25

"The boundaries given in the deeds are at variance with the boundaries shown in

the preliminary plan. Learned Counsel for the defendant-appellants contended

that the English equivalent to the customary Sinhala measure of sowing of one

laha is one acre. However, it is to be noted that this system of land measure

computed according to the extent of land required sowing with paddy or

Kurakkan vary due to the interaction of several factors. The amount of seed

required could vary according to the varying degrees of fertility of the soil, the

size and quality of the grain, and the peculiar qualities of the sower. In the

circumstances, it is difficult to correlate sowing extent accurately by reference

to surface areas, (vide Ceylon Law Recorder, vol. XXII, and page XLVI)".

Accordingly, it is difficult to adopt a uniform method to ascertain the extent of a

land in reference to the paddy sowing quantity. Even though the appellant

contested the identity of the land alleging what was surveyed at the preliminary

survey was portion of a larger land, he has failed to take out a commission to

survey the land or to superimpose the plan depicting the larger land on the

preliminary plan.

When the plaintiff was under cross examination he was not questioned as to the

boundaries of the corpus. It was merely suggested to him, under cross

examination that the land depicted in the preliminary plan is a portion of a larger

land which suggestion the plaintiff refuted and maintained that the corpus he

sought to partition is a separate land.

The appellant in the course of presenting his case produced the final village plan

bearing No 82, which depicts lot No 103 in extent of 10 acres 10 roods and 13

Perches. However, the appellant has failed to produce any other documents to

establish that the corpus is part of larger land depicted in the final village plan.

26

According to the commissioner the land he surveyed for purpose of preparing

the preliminary plan is the identical land that is sought to be partitioned. The

learned district judge having considered the evidence adduced by both parties

on the question of the identity of the corpus has come to the conclusion that the

land sought to be partitioned is not a portion of a larger land as claimed by the

appellant, but an independent entity as depicted in the preliminary plan and

answered the point of contest on the identity of land in favour of the plaintiff.

Taking into consideration the material considered by the learned district judge to

arrive at this conclusion, I am of the view that he has properly analysed the

evidence and come to the right decision. Hence, the appeal preferred by the

appellant merits no favourable consideration and therefore the appeal is

dismissed subject to costs.

Judge of the Court of Appeal.

The requirement to give the undivided share of the soil and rights each party is

entitled to in the interlocutory decree- failure to specify the specific undivided share-

consequences

C. A. Appeal No. 1104/96(F)

D. C. Kalutara Case No. 4259/P

27

16. Thotage Ariyasena

78. Pritman Dias Gunawardana

Vs

Maddumadevage Alen Bombuwala.

Asoka Fernando with Ms. A.R.R. Siriwardane for the

DefendantAppellants 1st, 4th and 16th and 78th Defendant-

Appellants.

Champaka Ladduwahetty for the Respondent.

Argued on: 24.07.2014. Decided on:

06.08.2014.

A.W.A. Salam., J. (P/CA)

This is a partition action. The judgment and the interlocutory

decree impugned in this appeal are dated 21.06.1996. The

learned District Judge having decided that the parties should be

allotted undivided shares failed to give exactly the shares each

party will entitled to in the judgment. The learned District Judge

in that judgment states without specifying the undivided rights of

the parties that the plaintiff should tender a schedule of shares

and if the schedule of shares so tendered is consistent with the

judgment it should be accepted as part and parcel of his

judgment.

This judgment of the learned District Judge is totally violative of

the provisions of the partition law. The judgment in the strict

sense of the law cannot be regarded as a proper judgment in view

of the direction given by the learned District Judge that the

schedule of shares directed to be tendered by the plaintiff should

be accepted as part and parcel of his judgment. This being

plainly obnoxious to the provisions of the partition law I have no

alternative but to hold that the learned District Judge has failed

to discharge the elementary duty of discharging the most

important aspect in the case. It is settled law that in a partition

action the trial judge must decide the nature and extent of the

interest each party is entitled to upon an examination of the title

in terms of Section 25 of the Partition Law.

28

In C. A.. 116 and 1167/96(F) it was held that the failure of the

District Judge to indicate the undivided interest of each party in

the interlocutory decree is a fatal irregularity which gives rights

to the judgment and interlocutory decree having to be set aside.

It is appropriate at this stage to refer to the decision in Memanis

Vs Eide 59 Ceylon Law at page 46. H/L Basnayake, C.J. with

H.N.G. Fernando concurring laid down the proposition that it is

imperative to include the undivided interest of each party in the

interlocutory decree. The relevant passage of the said judgment is

quoted below.

“In his judgement the learned that district judge says;

“plaintiff’s proctor will file a schedule of shares which

when filed will form part and parcel of this judgement”

and there is a schedule of shares filed which he has

adopted in entering the interlocutory decree. Section

25 of the Partition Act, provides that the judge shall

examine the title of each party and shall hear and

receive evidence in support thereof and shall try and

determine all questions of law and fact arising in that

action in regard to the right, share or interest of each

party to, of, or in the land to which that action relates,

and shall consider and decide which of the orders

mentioned in section 26 should be made. In the

instant case there has been no determination of the

shares of the parties as required by the Partition Act. It

is the shares so determined by the judge that the court

is required to enter in the interlocutory decree. The

course taken by the learned district judge is contrary

to the provisions of section 26 of the partition act. ”

Based on the above two decision I am of the view that the

impugned judgement cannot be allowed to stand as it is totally

inconsistent with the provisions of the partition law.

In the circumstances the impugned judgment is set aside and the

case send back for re-trial.

PRESIDENT OF THE COURT OF APPEAL

29

Substitution- suppression- revision application-Maintainability

30

CA Appeal No. CA 1787/2003

D.C. Kurunegala 829/P

Siri Amarasingha

Petitioner

Vs

P. Kumarihamy

Substituted plaintiff respondent and others.

Before: A.W.A. SALAM, J.

Counsel: Nihal Jayamanna PC with Ajith Munasingha for the petitioner and

Mahanama de Silva for the 7th defendant- respondent

Decided on 20.11.2008

Abdul Salam J.

This is an application made in revision by the petitioner to

aside the order dated 2 September 1998 of the learned

district judge.

The facts briefly are that the learned district judge delivered

judgment on 11 July 1996 and directed that interlocutory be

entered in the above partition action, to partition the corpus

among the following parties in the proportion of the

undivided shares indicated below.

1. 4th defendant, substituted plaintiff

C.H.M.Pabawathie Kumarihamy Waduragala -

1/7 share.

2. Original plaintiff, presently 1st defendant

C.H.M.Chandra Bandara - 1/7 share.

3. 3rd defendant, Soma Murial Waduragala - 1/7

share.

4. 4th defendant, Dhanawathie Kumarihamy

Waduragala - 1/7 share.

5. 5th defendant, Sardha Kumarihamy


31

6. 6th defendant C.H.M.Candrathilaka Bandara -

1/7 share.

7. 7th defendant Chandrakanthi Kumarihamy


Subsequent to the entering of the interlocutory decree and

before the conclusion of the partition action the 1st

defendant has transferred by an irrevocable deed of gift

bearing No 3394, all the rights he had inherited from his

father and the rights acquired by virtue of deed Now 3387 to

the petitioner.

Thereafter pending the termination of the partition action,

the 1st defendant died on 21 March 1998 and three persons

including the petitioner applied to have themselves

substituted in place of the deceased 1st defendant.

Consequently, an inquiry into the said applications for

substitution had been held and the petitioner produced a

power of attorney granted to him by the 1st defendant to

prosecute the action on his behalf along with an affidavit to

that effect and the deed No 3394 referred to above.

The learned district judge made the impugned order dated 2

September 1998 refusing the application of the petitioner for

substitution on the grounds referred to therein and

proceeded to substitute the 6th defendant on the basis that

the 6th defendant had applied for letters of administration to

administer the estate of the deceased 1st defendant.

Thereafter final decree was entered on 12 November 1999

and upon the application of several parties, the learned

district judge then permitted the sale of certain lots, by his

order dated 30 September 2002.

The petitioner has filed the present application in revision

nearly 1 near and 15 days after the order dated 30 September

2002 and four years after the order made in relation to the

application for substitution.

It is interesting to note that the petitioner has filed an

appeal (CA 29/2000 F) against the judgment and

interlocutory decree entered in the partition action on 17

32

December 1999 and the same had been dismissed pursuant

to an application made by the petitioner to withdraw the said

appeal on 5 August 2003, reserving his right to vindicate his

claims, in a civil court. The Judgment and order, the

petitioner seeks to assail in this revision application includes

the judgment and interlocutory decree the petitioner

challenged in the exercise of his purported rights of appeal in

CA 29/2000 (F).

Quite surprisingly, the petitioner has suppressed the fact

that he had appealed against the judgment and the

interlocutory decree entered in the partition action in CA

29/2000 F and that he had withdrawn the said appeal,

subject to the liberty of filing a civil suit to vindicate his

rights.

The petitioner has also made the second application to the

district court to have himself substituted in place of the

deceased 1st defendant on 15 November 1999. This fact also

has been suppressed by the petitioner in his application to

this court for revision.

Quite apart from the fact that the matters averred in the

revision application cannot give rise to any necessity to

revise the judgment, interlocutory decree and the order

impugned in these proceedings, the suppression made by the

petitioner in his application, clearly shuts him out from

invoking the revisionary jurisdiction of this court.

For the reasons stated above the application for revision

cannot be maintained by the petitioner as is presently

constituted. Hence, the revision application made by the

petitioner is dismissed subject to costs.

Judge of the court of appeal

33

AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT- Section 66 of the Partition

Act-

AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT-

Section 66 of the Partition Act- After a partition action is duly

registered as a lis pendens under the Registration of Documents

Ordinance, no voluntary alienation of any undivided share or

interest or in the land to which the action relates shall be made

or effected until the final determination of the action. The

prohibition against alienation of undivided shares under section

66 has been held not to affect the disposal of property, by

expressly charging or disposing of interest to be ultimately

allotted to parties in the action.

Abdus Salâm, J.

The deceased-plaintiff filed action to partition the defined and

divided allotment of land known as lot 3 of "Welle Elabodawatta"

depicted in final plan of partition No. 366, filed of record in DC

Kalutara case No. 31046. There was no corpus contest and an

important feature in the case was the agreement of the parties as

to the identity of the land sought to be partitioned.

Devolution of title to the subject matter, in terms of the amended

plaint, starts with the original ownership attributed to (1) Liyasel

Fernando (2) Andiris Fernando (3) Peter Fernando (4) Michael

Fernando (5) Melie Fernando (1stdefendant-respondent) and (6)

Punchinona Fernando (2nd defendant-respondent). Liyasel

Fernando and Andiris Fernando had died without marriage and

issues and their rights had devolved on the surviving collaterals

Peter Fernando, Michael Fernando, Melie Fernando and

Punchinona Fernando.

Peter Fernando has died interstate leaving as heirs the 3rd

defendant-respondent Thilakaratna Fernando and Kamalin

Fernando. Kamalin Fernando had died leaving as her heirs her

husband Sisil Clement Silva (4thdefendant-respondent) and her

34

children Roshan Chandima de Silva (5thdefendant-respondent)

and Ranga Vides Silva (6th defendant-respondent).

The 1/4th share of Michael Fernando from and out of lot 3, which

gave rise to the main controversy in the case, has been

transferred on deed No 509 dated 15th December 1992 attested

by H. R.

Marikkar to the plaintiff. The devolution of title set out in the

plaint is as follows.

1. Plaintiff - 8/32

2. 1st defendant - 8/32

3. 2nd defendant - 8/32

4. 3rd defendant - 4/32

5. 4th defendant - 2/32 6. 5th defendant -

1/32

7. 6th defendant - 1/32

The plaintiff also pleaded in the amended plaint that even though

the 17th defendant-respondent and 18thdefendant-appellant had

allegedly purchased rights from Michael Fernando on deed No's

6240 and 3124 respectively, the said deeds are obnoxious to

section 66 of the Partition Act and of no force or avail in law and

no title passes on the said deeds.

The contention of the 18th defendant-appellant and 17th

defendantrespondent (hereinafter collectively referred to as the

"contesting defendants") was that Michael Fernando referred to in

the amended plaint transferred an undivided (1) 10 perches on

deed No 2741 dated 23rd April 1987, (2) 5 perches on deed No

2753 dated 11th May 1987, and (3) 10 perches on deed No 2808

dated 3rd June 1987 and (4) 10 perches on deed No 2948 dated

20th January 1988 aggregating to 35 perches from and out of the

right, title and interest that he would be declared entitled to in

the partition action to them and therefore the plaintiff-respondent

is not entitled to any shares from the corpus as Michael

Fernando did not have any rights in lot 3 to alienate, when he

had purportedly transferred ¼ share to the plaintiff on deed No

509.

35

The dispute therefore narrowed down as to whether the rights in

the land had devolved on the parties, as set out in the amended

plaint or in the statements of claim of the contesting defendants.

By judgment dated 15th June 1998 the trial judge held inter alia

that relied upon by the contesting defendants are obnoxious to

section 66 of the Partition Act and no rights pass on the said

deeds. Hence, he declared deed No's 6240, 3124 and several

other deeds of the same type as being void in law. The 18th

defendant-appellant has preferred the instant appeal, to have the

said judgment of the learned district Judge set aside and the

partition action dismissed.

Admittedly, Michael Fernando was the 32nd defendant in partition

action No 31046, in addition to his being one of the legal

representatives of the deceased plaintiff. In that case the

32nddefendant Michael Fernando was allottedlots 15 and 22

depicted in plan of partition No. 366. Besides, in terms of the

final decree, he was also entitled to an undivided 1/4th share

from and out of lot 3 depicted in plan No 366. It is common

ground that the subject matter according to the preliminary plan

is in extent of 1Rood and 27.8 Perches. The share claimed by the

plaintiff is 16.95perches being equivalent to 1/4th parts of the

corpus. Based on the claim made by the contesting defendants,

on the strength of the pending partition deeds, their claim cannot

extend to more than11.3 perches of the corpus, being 1/6 share

of John Fernando.

There was no dispute that Michael Fernando was declared

entitled to lots 15 and 22 in extent 1 Rood 16.33 Perches and 1

Rood 13.30 Perches respectively in terms of the final decree

entered in partition action No 31046. It is somewhat striking that

Michael Fernando has got both these lots15 and 22 as the 32nd

defendant in that case and therefore he could undoubtedly

dispose of the rights by expressly charging or disposing of his

interests to be ultimately allotted to him in that action.

The total extent of the lots 15 and 22 allotted to Michael

Fernando works out to 2 Roods and 29.63 Perches. He has

transferred the right, title and interest that he would be declared

entitled to in the partition action, on six occasions. As far as the

36

present appeal is concerned, the following deeds of transfers

appear to be noteworthy.

They are…

Deed 2747 - to the 17thdefendant - 10 perches

Deed 2753 - to the 18thdefendant -

perches

5

Deed 2808 - to the 18thdefendant -

perches

10

Deed 2747 - to the 18thdefendant - 10

perches

Michael Fernando also prominently featured in the final

decree entered in the previous partition action in relation

to lot 3 which is the subject matter of this case. In actual

fact lot 3 in that case was allotted in lieu of the undivided

shares of the deceased plaintiff John Fernando and in

terms of the final decree allotted to 1 to 7 substituted

plaintiffs. It is common ground that Michael Fernando is

one of the children of John Fernando (deceased plaintiff)

and a substituted-plaintiff in the action.

An important legal question that arises for consideration

is whether the deeds written in favour of the contesting

defendants are obnoxious to section 66 of the Partition

Act, as has been held by the learned district Judge.

Section 66 of the Partition Act, lays down inter alia that

after a partition action is duly registered as a lis pendens

under the Registration of Documents Ordinance, no

voluntary alienation of any undivided share or interest or

in the land to which the action relates shall be made or

effected until the final determination of the action. The

prohibition against alienation of undivided shares under

section 66 has been held not to affect the disposal of

property, by expressly charging or disposing of interest to

be ultimately allotted to parties in the action. Such

dispositions are not considered as being obnoxious to

section 66 of the Partition Act. The scope and the type of

37

restrictions imposed by section 66 (previously under

section 17 of the Partition Ordinance No 10 of 1863) have

been the subject of the decision of the appellate courts in

several matters. However, in my view suffice it would be to

refer to the judgment in the case of Koralage Podinona Vs

Sunny Fernando[2].

Based on the decision of Stanley Gunawardena J, in Koralage

Podinona (supra), it is crystal clear that the different dispositions

made by Michael Fernando in favour of the contesting defendants

in this case, are not obnoxious to the prohibition imposed under

section 66 of the Partition Act, for all those dispositions deal with

undivided extent of the right, title and interest of Michael

Fernando to be finally allotted in the partition action, as opposed

to the prohibited nature of alienation involving undivided shares

from and out of the corpus. In the circumstances, it would be

seen that the learned trial judge has misread the deeds of the

contesting defendants as being obnoxious to section 66 of the

Partition Act, which findings I think should stand corrected at

the outset, as the deeds are perfectly valid in law. Nevertheless

the question whether title in respect of lot 3 could pass on the

said deeds is a different issue and should be considered

separately focusing on the contents of the deeds, by

ascertaining exactly as to what Michael Fernando intended to

transfer on those deeds.

It was contended on behalf of the contesting defendants that

without instituting a partition action to divide lots 3, 15 and 22

the plaintiff-respondent who got undivided shares from and out

of Lot 3 cannot maintain the present action in respect of Lot 3

only, as the contesting defendants hold right, title and interest

that would be allotted to Michael Fernando in the partition action

to the extent of at least 35 perches out of Lot 3. This argument of

the contesting defendants is not only sustainable in law but

inconsistent with the facts of the case. It is settled law that an

action for the partition of more than one land can only be

brought, if the lands sought to be partitioned are contiguous in

nature and the devolution of title is common to all.

38

The preliminary plan prepared in this matter does not indicate

Lot 15 and/or Lot 22 as being adjacent or bordering the subject

matter Lot 3. On an examination of the devolution of title

applicable to all three lots it is hardly possible to say that the

devolution of title is common to all three lots. As such, even if the

plaintiff-respondent was keen, yet the law does not allow him to

have recourse to one partition action to partition all three lands

in one single action, as the allotments of land the contesting

defendants submitted should be brought in for that purpose, do

not form contiguous allotments and come under a common

devolution of title.

As far as the interlocutory decree entered in partition action

31046 is concerned, one has to be mindful of the fact that

Michael Fernando has been declared entitled to three allotments

of land, in two different capacities. He has been declared entitled

to lots 15 and 22 in his capacity as the 32nd defendant. In the

result he became the sole owner of the entirety of lots 15 and 22

in an unqualified manner without having to prove anything

further.

As regards lot 3, the district Judge after the investigation of title

under section 25, declared and awarded rights to John Fernando

(the deceased-plaintiff) in the name of the legal representatives in

a representative capacity. For instance, if John Fernando had

another child who has not been substituted as a plaintiff, would

it mean that the child so left out should be deprived of paternal

inheritance?. The answer to this question under no

circumstances can be adverse to the child concerned.

By the mere fact that certain persons were substituted in place of

the deceased plaintiff and declared to be entitled to undivided

rights in the land and that in lieu of those undivided rights they

are allotted rights under the final decree, by itself is insufficient

to make the substituted plaintiffs, co-owners of lot 3, unless they

are able to establish their right of inheritance from John

Fernando. As a matter of fact the district Court is not expected to

carry out an investigation of title to ascertain as to the manner in

which the rights of a party, who had died pending the

determination of the action and declared to be entitled to

39

undivided shares and/or given rights under the final decree, had

passed hands. Thus, it would be seen, in so far as lot 3 is

concerned, Michael Fernando does not per se become entitled to

any rights from an out of Lot 3, directly under the final decree.

His title to an undivided 1/6th share of Lot 3 depends on two

factors, namely that John Fernando is declared entitled to a

particular lot under the final decree and that Michael Fernando is

a son of the said John Fernando. Hence, it could be seen that

even though the deeds produced by the defendants do not offend

the Provisions of section 66 of the Partition Act and its objectives,

nevertheless no rights can pass automatically on those deeds

without proof of heirship. This would make it abundantly clear

that Mike Fernando has not been declared entitled to an

undivided 1/6th share of lot 3 to enable the contesting defendants

to avail of the pending partition deeds to acquire rights from and

out of lot 3, in contrast to the acquisition of rights from and out

of lots 15 and 22.

As regards lots 15 and 22 one cannot think of any such

impediment in the way of the contesting defendants. It cannot be

argued that Michael Fernando is not directly entitled to the said

lots in terms of the interlocutory decree and final decree entered

in the case. As such it was within the power of Michael Fernando

to dispose of his rights without infringing the provisions of

section 66 of the Partition Act by assignment of right, title and

interest that he would be declared entitled to in the partition

action. As such dispositions made by deeds produced by

defendants cannot stand in the way of their right to acquire of

rights in lots 15 and 22.

At this stage it is necessary to emphasize that Michael

Fernando along with 5 others are deemed to have been

allotted lot 3 in terms of section 48 (6) of the Partition Act.

Here, the clear distinction that arises is that Michael

Fernando was allotted lots 15 and 22 by the final decree

in the former partition action and is deemed to have been

allotted lot 3 along with 5 others. Significantly, Michael

Fernando has only transferred his right title and interest

that are to be allotted in the partition action and not the

right title and interestdeemed to have been allotted under

40

section 48 (6) of the Partition Act. (Emphasis added to

demonstrate the weight attached to direct allotment of

shares as opposed to allotment of shares under the

deeming provision). This distinction clearly shows that

Michael Fernando had no intention to part with the rights

he was to get under section 48 (6) but manifestly intended

in no unmistakable terms to pass undivided interest from

and out of the right, title and interest he was to be

declared entitled to under the partition decree, which

culminated in his being unconditionally declared entitled

to lots 15 and

22.

As spelled out above, at the most the contesting

defendants can only claim their share from Michael

Fernando only against lots 15 and 22. As such the claim

of the contesting defendants as far as lot 3 is concerned

should necessarily fail. The resultant position therefore

would be that the learned district Judge’s findings cannot

be critically looked at, except that he should have

refrained himself from declaring the deeds produced by

the contesting defendants as being obnoxious to the

prohibition imposed by section 66 of the Partition Act. As

stated above it is my considered view that the deeds in

question are absolutely valid and perfectly in order except

that no title passes on to the contesting defendants upon

those deeds in as much as the subject matter is

concerned. As it is quite evident from the words employed

by the notary in those deeds, Michael Fernando has in

fact transferred his right, title and interest that he would

be declared entitled to and such dispositions are only

referable to lots 15 and 22 to which he has been in fact

directly declared entitled to.

For the foregoing reasons, it is my considered view that

the appellant is not entitled to succeed in his appeal.

Consequently, the petition of appeal of the 18th

defendantappellant is hereby dismissed subject to costs.

41

Judge of the Court of Appeal

CA Appeal No 518/98 (F) D.C. Kalutara 6177/P Susil Harischandra, 18th defendant-appellant Vs Gallage Leelawathie Fernando

Before: A.W.A.Salâm J.

Rohan Sahabandu for 18th defendantappellant and

S.W.Premaratna for the plaintiff-respondent.

Decided on: 01.04.2009

[1] 109.63 perches [2] 1986 2 CALR 217

AMENDMENT OF INTERLOCUTORY DECREE-INSUFFICIENT EVIDENCE-

Section 34

A W A Salam, J

This is an application to revise and set-aside the judgement and

interlocutory decree dated 11th November 2003 entered in the

above case. The facts briefly are that the parties agreed to have the

corpus in the action partitioned in terms of the evidence led at the

trial without any points of contest being raised. The plaintiff

respondent, 2nd defendant-respondent and the 4th defendant-

42

petitioner gave evidence at the trial. Subsequently judgement was

entered followed

by an interlocutory decree to have the corpus

partitioned. Accordingly the 4th defendant- petitioner was declared

entitled to purchase an extent of 10 perches of land from and out of

the rights of the plaintiff-respondent so as to include the buildings

marked as “1, 2 and h”.

Subsequently, the 4th defendant-petitioner made an application to

have the interlocutory decree amended, on the basis that the

plantations he was declared entitled to had not been ordered to be

included into the lot to be allotted to him. The learned district Judge

by his order dated November 11, 2003 refused the application on

the basis of section 33 and 34 of the Partition Act. According to the

learned judge, the improvements to which the 4th defendant-

petitioner has been declared entitled to have been directed to be

included into his lot as far as practicable and in the event of the said

petitioner not getting the improvements or part thereof is entitled to

compensation under section 34 of the Partition Act. The impugned

order of the learned district Judge does not appear to be contrary to

law or inconsistent with the evidence led at the trial. In any event

the 4th defendant-petitioner has failed to adduce any exceptional

43

circumstances to warrant the conclusion that the judgement and

interlocutory decree should be revised.

For the foregoing reasons, I see no grounds whatsoever to interfere

with the judgement, interlocutory decree and the order dated

November 11, 2003. Hence the revision application filed by the 4th

defendant-petitioner stand dismissed subject to costs.


C. A. No: CA 254/ 2004

DC Horana: 48/99P

Mahawattage Don Chandrasekara, 4th Defendant-Petitioner

Vs Mahawattage Don Nandasena - Counsel : Jacob Joseph for the 4th

Defendant-Petitioner and Asoka Serasingha for the Respondents

AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY OF THE

CORPUSIMPORTANCE

C.A. No. 1428/2004

D.C. Negambo 2534/P

S. K. Jayaweera.

Plaintiff-Petitioner

1.Ranasingha Hettiarachchige

Don Robert Ranasingha

Before : A.W.A. Salam, J.

Counsel : Dr Sunil F A Cooray with Shavindra Silva for the

PlaintiffPetitioner and Kuwera de Soyza for the Defendant-Respondents.

44

28.05.2009

A.W. Abdus Salam, J.

This is an application to revise the order of the learned district Judge

dated 22 March 2004 by which the point of contest No 1, as suggested by

the plaintiff- petitioner had been amended.

The facts which led to the filing of the instant revision application are that

the plaintiff instituted action to partition the land called “Piris Yala

Godella” morefully described in the schedule to the plaint. The extent of

the corpus as described in the plaint was 4 acres 2 roods and 24 perches.

According to the plaintiff the land sought to be partitioned is identical to

that of the land depicted in the Surveyor General’s title plan No 129225.

However, preliminary plan prepared by the commissioner depicted only a

portion of the whole land in extent 3 Roods and 33.5 perches. According

to the remark made by the surveyor, lot 1 depicted in preliminary plan No

1409 dated 22nd and 27th of August 1994 is a portion of the lots depicted

as A and B in final plan of partition No 1269Q filed of record in DC

Negambo case No 11388. In the report attached to the preliminary plan

in column 5, the commissioner has categorically mentioned that the land

surveyed by him is only a portion of the land is sought to be partitioned

and set out in the schedule to the plaint.

In the circumstances, the plaintiff has obtained a fresh commission

directing the Commissioner to superimpose lot 6977 depicted in the

Surveyor General’s plan No 129225. In terms of the second commission

issued, the Commissioner superimposed the plan of the Surveyor General

and prepared plan No 1409A and report attached to it. The subsequent

survey carried out by the Commissioner as per plan No 1409A, lots 1, 2

and 3 are in extent of 4 Acres 2 Roods 24 perches which is equivalent to

the extent given in the Surveyor General’s plan.

The learned counsel of the petitioner has submitted surveyor reported

that the boundaries did not exist on the ground and that without a proper

identification of the boundaries he was unable to demarcate the same on

45

the ground. It is significant to note that the same Commissioner in

executing the first commission had demarcated the boundaries on the

ground by means of pegs, even though such boundaries did not exist on

the ground. It is equally important to note that the surveyor when

executing the first commission has superimposed plan No 1269Q and

thereafter demarcated the boundaries on the ground. However when he

executed the second commission, without demarcating the boundaries on

the ground, the surveyor had stated that he was unable to demarcate

them without proper identification of the boundaries. In the

circumstances, the plaintiff has moved for a commission once again

requiring the surveyor to demarcate the boundaries on the ground, after

the superimposition of the crown plan. This application of the plaintiff had

been refused by court by order dated 11 November 2003.

Thereafter the trial had commenced on 22 March 2004 and the plaintiff

had raised 4 points of contests. The point of contest concerning the

identity of the corpus as suggested by the plaintiff was whether the land

sought to be partitioned has been depicted in plan No 1409 A. Upon the

defendants objecting to the said point of contest, the learned district

Judge amended the same and recast the point of contest to read as

"whether the land sought to be partitioned has been depicted in plan No

1409. This has resulted in the plaintiff having to confine himself to a

portion of the land set out in the plaint and portion of the land referred to

in the lis pendends that has been registered for the purpose of the

partition action.

As regards the failure of the plaintiff to seek and obtain leave of this court

to appeal against the impugned order within the timeframe allowed in law

the plaintiff states that he was unable to obtain certified copy of the

proceedings dated 22 March 2004 and the counsel in Colombo could not

be contacted and retained as it was the April vacation of the courts.

Further the plaintiff states that he was not able to obtain certified copies

of the entire proceedings in time and therefore prevented from making an

application for leave of his court to prefer an appeal against the said

order.

46

Having considered the application made by the plaintiff, I'm of the view

that in any event exceptional circumstances do exist in this case to review

the order of the learned district Judge made with regard to the point of

contest suggested by the plaintiff touching the identity of the corpus.

As the plaintiff has referred to in the plaint a land in extent of 4 Acres 2

Roods and 24 perches, the list pendends too has been registered in

respect of a land which is in that extent and the plaintiff has caused the

surveyor to superimpose the crown plan and survey the entire extent

given in the plaint with details of claims made by each party and others

who claimed rights before the surveyor, learned district Judge should

have given the plaintiff an opportunity of establishing the corpus to be

what he undertook by raising the point of contest in relation to the plan

No 1409.

For the foregoing reasons, it is my considered view that the district Judge

should not have amended the point of contest No 1. As such, acting in

revision I set aside the impugned order of the learned district Judge and

direct the learned district Judge to accept the point of contest raised by

the plaintiff referring to plan No 1409A and proceed to investigate title.

I make known as to costs.


APLICATION FOR REVISION AND/OR RESTITUTIO IN INTEGRUM- PETITIONER HAD NO

RIGHTS IN THE CORPUS- MAINTAINABILITY

CA 215//2002

DC Kandy 125781/P

D.A.S.K. Dissanayaka,

Vs

M.R.Prema Lal de Charles,

47

Dr F.A.Sunil Cooray for the petitioner and Nihal Jayamanne PC with Ajith Munasingha for the substituted plaintiff-respondent.


A.W.Abdus Salâm, J.

The petitioner has filed the present application in revision to have the trial

proceedings in partition action No 12578/P in the district Court of Kandy

and the judgment and interlocutory decree entered in the case set aside and

to obtain an order of court to have the petitioner added as a party defendant

in the action. He also seeks an order from this court for a reasonable

opportunity to file a statement of claim and to take other steps to contest

the partition action.

When the matter was taken up for argument on 30 January 2009, the

learned president's counsel of the substituted plaintiff-respondent raised a

preliminary objection with regard to the purported rights of the petitioner to

have and maintain the present application for revision and/or restitutio in

integrum, inasmuch as the petitioner had no locus standi to maintain the

application as he had no rights in the corpus at the time or prior to the

entering of the judgment and interlocutory decree.

The plaintiff-respondent instituted the partition action to have the corpus

partitioned between him and the 1st defendant-respondent in the proportion

of 2/3 and 1/3. The 2nd defendant-respondent has been made a party to

the partition action as she was attempting to enter the corpus without any

manner of title. The 1st and the 2nd defendants filed a joint statement of

claim and prayed inter alia that they be given an equitable portion of the

subject matter together with the buildings and Plantations standing thereon.

At the commencement of the trial the parties informed the learned district

Judge that there was no contest with regard to the identity of the corpus

and that they were agreed to have the land depicted in the unnumbered

plan dated 8th September 1911 shown by way of superimposition on the

preliminary plan No 590 dated 21st April 1992 marked as X be treated as

the subject matter of the partition action. Pursuant to the said agreement,

the plaintiff testified as to the devolution of title as averred in the plaint.

At the conclusion of the trial, the learned district Judge delivered his

judgment accepting the land shown by the superimposition in red lines as

the subject matter of the partition action and directed that the corpus be

partitioned between the plaintiff-respondent and the 1st

defendantrespondent in the proportion of shares, referred to by the plaintiff-

respondent in his evidence. The petitioner in his petition has attempted to

48

make out that the plaintiff had not disclosed deed No 9747 as being a

material deed with regard to the devotion of title, even though by deed No

593 dated 3 September 1991 (pending partition deed) the plaintiff has

purchased from the 1st defendant and his brother somadasa the right title

and interest they will be declared entitled to by the final decree to be entered

in the partition action in question. The petitioner states that in deed No 593,

the vendors have recited title from deed No 9747 dated 12 October 1916 and

therefore cannot be unaware of the said deed recited as being the source

through which the vendors in deed No 593 have acquired title.

The position of the substituted plaintiff-respondent is that deed No 593

deals with two lands and on a reading of the schedule to the deed it is quite

clear that the 2nd land described in the schedule to the said deed is the

subject matter of the partition action and the first land has no relevance

whatsoever to the corpus. In other words the substituted plaintiff-

respondent maintains that he has acquired title to 2nd land dealt in deed No

593, by purchasing the right title and interest that would be allotted to the

2nd named vendor Samarasingha.

The substituted plaintiff respondent has submitted that the deeds marked

as C1, C2 and C3 referred to in paragraphs 17 and 18 of the petition were

not pleaded in the joint amended statement of claim of the 1st and 2nd

defendants and therefore the relevance of the said deed was not a matter

that was required to be considered in the lower court and the petitioner is

now attempting to set out a false claim to the land and delay the conclusion

of the partition action.

As a matter of fact the 1st and the 2nd defendants in their amended

statement of claim dated 4.9.1995 filed in the district court took up the

position that Abraham Appu was entitled to lot B described in the schedule

to the said amended statement of claim by virtue of the final decree entered

in partition case No 25071 D.C Kandy and decree entered in the court of

request of Gampola in action No. 116.In terms of the said amended

statement of claim the rights of Abraham has finally devolved on

Bambarende Don Kalyanawathie Wanigaratne (2nd defendant-respondent), -

do- Gunawathie, do- Francis, -do- Arthur and –do- Badra. By way of relief

the 1st and the 2nd defendant-respondents have sought that they be given

an equitable portion of the land.

By paragraph 21 of the petition the petitioner has accepted the devolution of

title of Abraham up to Podihamine whom the petitioner says became the sole

owner of the property on deed No.2639 dated 9th August 1949 mentioned in

their amended statement of claim filed before the learned district judge.

Even though in the amended statement of claim the 1st and the 2nd

defendants had stated that the rights of Podihamine devolved on the

collaterals namely, Ema Nona Gunawardena and Ariyadasa Gunawardena,

the petitioner is now trying to state by paragraph 24 of the petition that the

49

said Podihamine died on 1.10.1984 leaving an administrable estate and in

fact was administered in D.C.Kandy case No.3236/T and one Helanhamy

was granted with the letters of administration and she (Helanhamy)

thereafter by deed No.252 dated 3.5.1994 has transferred the corpus to

D.A.Kusumalatha Malani who is a sister of the petitioner. In the same

breath the petitioner has attempted to say that the said Kusumalatha

Malani by deed No.13805 dated 24.9.1998 attested by G.Premaratne N.P.

has transferred the rights in the corpus to the petitioner and accordingly the

petitioner is the sole owner of the corpus.

A salient defect in the petitioner's case appears to be paragraph 21 of the

petition where he has accepted the devolution of title of Abraham as set out

in the joint statement of claim of the 1st and 2nd defendants up to the point

they say Podihamy became the sole owner of the subject matter on deed No

2639. By the averment in paragraph 21 of the petition, the petitioner is now

trying to further espouse the cause of the 1st and 2nd defendants despite

the fact that they were parties in the partition action and they failed to

challenge the judgment entered in the partition action.

The judgment in the partition action has been entered on 12 March 1997.

According to the petitioner the rights of Podihamy had devolved on

Helanahamine and the latter had transferred it to the sister of the petitioner

on deed No 252 in the year 1994. More significantly the petitioner is alleged

to have acquired title from his sister on deed No 13805 on 24 September

1998. According to the Journal entries produced in this application the

partition action has been instituted on 23 August 1990. Thus, it is crystal

clear that the petitioner has based its title on a deed executed in 1998,

namely almost 8 years after the institution of the partition action and 1 year

and 6 months after the entering of the judgment. Admittedly the petitioner

was not a party to the partition action at the time when the interlocutory

decree was entered. Therefore it reveals that the petitioner had no rights to

the property at the time the interlocutory decree was entered. As the

petitioner was not a party to the partition action at the date of the

interlocutory decree, it has been submitted by the president's counsel that

the petitioner cannot be considered as a party aggrieved by the interlocutory

decree, since no decision has been made against him in the partition action.

Undoubtedly it disentitles him to contest the interlocutory decree.

In this respect the judgment of this court in case No CA 329/02 (Don

Saranadasa Ranasingha Vs Samanthi Sulochana Gunasekera) applies to

this case, being a decision made almost on identical facts to this application.

In the said judgment citing Perera, J in Perera Vs Wijewikrama 15 NLR 411,

Wimalachandra J, reiterated the following passage.

"I am of the opinion that the remedy of restitutio in integrum

can only be availed of by one who is actually a party to the

50

contract or legal proceeding in respect of which restitution is

desired" (page 413).

The Learned President's Counsel has submitted that special leave sought to

challenge the decision in Don Saranadasa Ranasingha Vs Samanthi

Sulochana Gunasekera has been refused by the Supreme Court in

application No SC (Spl) LA 161/06 by SC minutes dated 23 May 2007.

For the foregoing reasons, I am of the view that the preliminary objection

raised against the maintainability of the revision application should

succeed. Hence, the application made in revision by the petitioner stands



Kwk/-

APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC 773 OF THE CPC.

REQUIREMENTS NECESSARY TO BE ESTABLISHED

Case No. CA 731/1993 (F)

51

D.C. (Kalutara). 4643/P

Payagala Badalge

Agnes,

Vs

Walathara Arachchige Piyasena,

Counsel : L.B.J Peiris for the 3rd defendant appellanN R M

Daluwatta PC for 20/24 defendant appellants Ranjan Suwandaratne

for the

Plaintiff.

Re argued on: 04.06..2007.

Decided on: 27.09.2007.

Abdul Salam, J.

Order

This order arises on an application made by the 3rd defendant appellant

seeking leave of court to adduce fresh evidence under section 773 of the civil

procedure code . In this case, the learned district judge has entered

interlocutory decree for the partition of the land, allotting shares to the

parties, as specified therein. There are three appeals presently pending in

respect of the said interlocutory decree.

The 3rd defendant appellant has made the present application, seeking

permission of court to adduce fresh evidence to establish certain other

claims to the corpus, in respect of which she has not been able to produce

all the relevant documents. 3rd defendant appellant in her statement of

claim[2] has asserted rights in the corpus from two sources. By paragraph 2

of the statement of claim, she claims title to the subject matter through two

original owners, to wit; Thebuwana Arachchige Baba Naide and Payagala

52

Badalge Lewis Gurunnanse. In paragraph 12 of the statement of claim she

states that the rights of Baba Naide referred to above were sold by fiscal

conveyance No.

7031 dated 26.7.1911 to Ordiris who was also known as ordirishamy.

As regards the rights of Lewis Gurunnanse the position taken up by the 3rd

defendant appellant is that his rights devolved on Ordiris and from him it

passed on to the 3rd defendant appellant, as it reflects in point of contest No

10. The point of contest No 10 reads as follows.

10. As pleaded in the statement of claim of the 3rd defendant did Payagala

Badalge Lewis Gurunnanse become entitled to the balance rights of the

corpus?

Or did the balance rights devolve as pleaded in the statement of claim of the

1st defendant?

As regards the devolution of title of Payagala Badalge Lewis Gurunnanse the

3rd defendant appellant seeks to produce the following two documents as

fresh evidence.

1. Mortgage bond No 18625 attested by J.P. Wijeratne N.P dated 2/7/1917.

2. Extract of the register of births bearing No 12732 dated 11/9/1923 of

Agnes.

These documents, leave no doubts as to its bearing on point of contest No

10. By producing mortgage bond No 18625 the 3rd defendant appellant

seeks to demonstrate that Payagala Badalge Baba Singho [4] enjoyed rights

in the subject matter by way of paternal inheritance and those rights

subsequently devolved on Ordiris, who is said to be the father of the 3rd

defendant appellant.

Since the 3rd defendant appellant has sought to produce new evidence, I

consider it as crucial, to touch as briefly as possible, on the question of

admission of fresh evidence at the hearing of the appeal. It is trite law, that

reception and/or admission of new evidence, additional to, or

supplementary of the evidence already taken in a court of first instance,

53

touching the matters in issue, can only be permitted subject to certain rules

that have been formulated for that purpose.

In Laad vs Marshall 1954 3 All Eng. Report 745 at page 748 Denning L J

enumerated the conditions applicable to the reception of fresh evidence, as

being such

(1) Which could not have been obtained with reasonable diligence for use at the

trial

(2) That it would probably have an important influence on the result of the

case, although it need not be decisive and

(3) That it is presumable to be believed or in other words it must be apparently

credible although it need not be incontrovertible.

The principles laid down in the case of Laad vs Marshall (supra) has been

unreservedly followed in many cases, of our courts. Some of the cases, in

which the principles have been applied are Ratwatte Vs Bandara 70 NLR

231, Beatrice Dep vs Lalani Meemaduma (1997 (3) SLR 379) and Wijekoon

vs. Wijekoon (1986) 2 SLR 325. All these authorities emphasise that

reception of fresh evidence can be justified in appeal, only if it can be shown

that the evidence could not have been obtained with reasonable diligence at

the trial.

The 3rd defendant appellant has not placed any material to satisfy that they

were unable to obtain the mortgage bond in question, upon exercise of due

diligence. The petition and affidavit filed by the 3rd defendant-appellant do

not disclose as to when the appellant made the application to obtain

certified copies of the two documents. In the absence of the 3rddefendant-

appellant satisfying the requirements that she exercised reasonable

diligence, it is my view that she cannot succeed in her application to adduce

fresh evidence. The circumstances in which the 3rd defendant-appellant now

seeks to produce fresh evidence are self-explanatory as to the negligence in

prosecuting her cause in the original court.

To grant leave in this matter, to the 3rd defendant-appellant, to adduce fresh

evidence, may result in serious prejudice and injustice being caused to the

plaintiff-respondent and other defendant-respondents.

54

The careless attitude of the 3dr defendant-appellant, in prosecuting her case

in the district court, in my view, cannot be considered as being favourable to

relax the rule, which is inflexible to some degree, as referred to in Laad vs

Marshall, by Denning L J (supra).

As stated earlier the 3rd defendant-appellant has not established that the

evidence, she seek to bring in or introduce at the stage of appeal, could not

have been obtained with reasonable diligence for use at the trial. Since the

3rd defendant-appellant has not cleared this obstacle, I am not inclined to

think that her application to adduce fresh evidence should be allowed.

For the above reasons the application of the 3rd defendant-respondent made

under section 773 of the Civil Procedure Code is dismissed without costs.


[1] Before Wijerathne J

[2] Vide page 148 of the appeal brief [3] 3rd

defendant appellant.

[4] Vide Mortgage Bond No. 18625

FAILURE TO PROSECUTE PARTITION ACTION- SPIRIT OF SECTION 70 OF THE

PARTITION

LAW.

C.A.Rev. 224/2003

55

D.C. Kuliyapitiya No. 10599/P

Dampelessa Mudiyanselage Kalubanda of Panthenigoda, Narammala. Plaintiff-Petitioner

Vs.

1. Imihamilage Podi Menika,

Defendant-Respondents

Before : A.W.A. Salam, J. Counsel : Rohan Sahabandu for the Plaintiff-Petitioner.

Decided on : 03.07.2007

Abdul Salam, J.

The petitioner has filed the present application to have the order of dismissal

of partition action No. 10599/P DC Kuliyapitiya, dated 29.04.2002 set aside

on the basis that the said order is void and contrary to law.

Learned Counsel has specially adverted me to the proceedings dated

29.04.2002, wherein it is explicitly stated by the learned District Judge that

the 1st Defendant was prepared to prosecute the case in place of the plaintiff

who by that time, had failed to prosecute his cause with due diligence.

However for the reasons best known to the learned District Judge, without

any basis whatsoever he had proceeded to state in his order that in his

opinion, the 1st Defendant does not seem to show any interest to prosecute

56

the case. This finding of the learned District Judge is obviously not

consistent with the spirit of section 70 of the partition law.

Section 70 of the Partition Law requires that in the case where a plaintiff

neglects or fails to prosecute a partition action, the court may by order

permit any defendant to prosecute that action. In order to achieve this

district judge may substitute the defendant who is desirous of continuing

with the action as substituted plaintiff.

The learned district judge having recorded the willingness of the 1st

defendant to carry on with the action as substituted plaintiff, immediately

dismissed the action on the premise that he doubted the bonafides of the 1st

defendant. The moment the district judge recorded the position of the 1st

defendant that she was willing to prosecute the case, the court was obliged

to give reasonable time to the 1st defendant to prepare herself for the trial, as

she may not have had any prior notice of the lapse on the part of the

plaintiff.

It would have been appropriate had the District Judge immediately

adjourned the matter when the 1st Defendant expressed her willingness to

prosecute the case or at least inquired from her as to whether she needed an

adjournment to make preparation for the trial. It is quite unreasonable on

the part of the leaned judge to expect the 1st defendant to immediately

prosecute the matter without any notice.

In the circumstances the order of dismissal dated 29.04.2002 appears to

have been made in flagrant violation of Section 70. Hence, the order of

57

dismissal dated 29.04.2002 is set aside. The learned District Judge is

directed to notice all the parties and proceed from the step where the 1st

Defendant has expressed her willingness to prosecute the case. Parties shall

bear their own costs.

Sgd/-


-----------------

I do hereby certify that the foregoing is a true copy of the

judgment dated 03.07.2007 filed of record in C.A. 224/03.

Typed by :

Compared with : Chief Clerk-Court of Appeal

58

APPLICATION TO REVISE AN ORDER CONFIRMING SCHEME OF PARTITION-

CONSIDERATION APPLICABLE

CA 658/2003(Revision)

DC Negambo 2562/P

S.M.Anishiya Edith Rosa,

Vs

M.D. Calistus,

Before: A W A Salam,J

Counsel: Dr Sunil F A Cooray for plaintiff-petitioner and M H B

Morais for the 7th defendant-respondent

Argued on: 31.05.2010

Written submission filed on: 28.06.2010


A W Abdul Salam,J.

revision to have the order dated 23 April 2002 confirming the he plaintiff-petitioner has filed the present application in

scheme of partition be quashed and set aside, in the exercise of

the revisionary jurisdiction and/or powers of restitution. The

factual background relating to this revision application begins

with the partition action instituted by the plaintiff-petitioner to

partition the corpus among the parties. At the trial no point of

contests were raised as the parties entered into a settlement. The

terms of settlement were spoken to by the plaintiff-petitioner in

the course of her evidence. Accordingly, judgment was entered to

partition the corpus in terms of the settlement as directed by the

interlocutory decree.

Later, in executing the commission issued, the Commissioner

drew up his final scheme of partition bearing No. 52 dated

12.2.2002, after several opportunities granted to consider the

same, the learned district judge on 23.4.2002 confirmed the

T

59

scheme of partition bearing No 1830 when the parties jointly

moved that it be confirmed.

The application of the petitioner in this matter is mainly based on

the ground of an alleged mistake resulting from inattention on

the part of the registered attorney of the plaintiff-petitioner. As

has been unfolded in the petition, the petitioner maintains that

her registered Attorney at Law directed his clerk to examine the

record and make a copy of the final plan and report which the

latter is said to have carried out. The copy of the scheme of

partition thus made by the clerk is attached to the petition

marked as F. In other words the contention is that her registered

Attorney at Law was misled by the by the clerk into the belief that

it has been prepared by the Commissioner strictly in accordance

with the direction given in the interlocutory decree. As the copy

prepared by the clerk had been negligently drawn up

representing a different picture than what had originally been

suggested by the Commissioner by his final scheme of partition

that was filed of record, the plaintiffpetitioner moves to have the

impugned order confirming the scheme of partition set aside.

The main grievance of the plaintiff-petitioner is that in terms of

the judgment and interlocutory decree the common boundary

between the two blocks that were to be allotted to the plaintiff-

petitioner and the 7th defendant-respondent should have been

the line obtained by extending to the east of the drain found at

the northern edge of the apron of the well found at the South-

West corner of lot 1, and accordingly the well, it's apron and

drain should have fallen within the block of land to be allotted to

the plaintiff-petitioner.

In terms of section 36A of the Partition Act, an order confirming

the scheme of partition proposed by the surveyor, with or without

modification is appealable with the leave of the court of appeal

first had and obtained. The plaintiff-petitioner has admittedly not

invoked the provisions of section 36A of the Partition Act.

On the contrary, she has invoked the revisionary jurisdiction of

this court but without assigning any exceptional circumstances,

acceptable to Court. The circumstances relied upon by the

60

plaintiff-petitioner to invoke the revisionary jurisdiction, is based

purely on the negligence of the registered Attorney-at-Law of the

plaintiff-petitioner and that of the clerk attached to his office. As

has been submitted by the learned counsel for the 7th

defendantrespondent no application for revision can be

entertained by a Court if it flows from an act of negligence on the

part of a professional or his agent.

Revision is a discretionary remedy and the conduct of the

petitioner is intensely relevant for the granting of such relief.

(Perera vs People's Bank - Bar Journal (1995) Volume IV part I

page 12).

Noticeably, the application for confirmation of the scheme of

partition has been jointly made by both parties. As such in the

absence of any proof that a fundamental rule of procedure, as set

out in the Partition Act has been violated by the learned district

judge in confirming the scheme of partition, the question of

intervention by this court in the exercise of its revisionary powers

does not arise.

Besides, on the face of the application itself, there has been an

inordinate delay on the part of the plaintiff-petitioner to invoke

the revisionary jurisdiction. In terms of the final decree entered in

the case the scheme of partition proposed by the surveyor has

been confirmed on 23 April 2002. This revision application has

been filed on 10 April 2003. As such the plaintiff-petitioner is

clearly guilty of unaccounted laches.

For the foregoing reasons, in my view, the revision application

and the application for the exercise of the powers of restitution

are unable to be maintained and should necessarily suffer such

consequences which are adverse to the interest of the petitioner.

Hence, the petitioner’s applications are dismissed. There shall be

no costs.


61

WHO CAN FILE AN APPEAL? IT IS ONLY A PARTY TO A CASE WHO IS AGGRIEVED BY A

JUDGEMENT CAN PREFER AN APPEAL

C.A. 404/97F

D.C. Walasmulla 823/P

Seetha Siriwardena,

RESPONDENT-APPELLANT

VS

Premadasa Siriwardena, Godellawatta, Bowala, Walasmulla

DEFENDANT-RESPONDENT

BEFORE : A W A SALAM, J

COUNSEL : Kaminda De Alwis for the respondent-appellant and A E

Munasingha for the defendant-respondent.

ARGUED ON : 22.05.2012.

DECIDED ON : 13.07.2012.

A W Abdus Saam, J

The respondent-appellant in this appeal challenges the propriety of the order

dated 17 July 1999 of the learned district judge, allowing the application for

writ of possession initiated by the 1st defendant-respondent. The factual

background to the appeal emanates from the final decree entered in

partition action 823/P, by virtue of which the 1st defendant-respondent was

allotted lot 1 depicted in the scheme of partition. Objection being taken

against the application for writ of possession by the respondent- appellant,

the learned district judge heard the parties on the application and entered

the impugned order allowing the writ of possession. The present appeal has

been preferred against this order.

At the hearing of the appeal a preliminary objection was raised by the 1st

defendant-respondent as to the maintainability of the appeal, inasmuch as

the respondent- appellant was not a party to the partition action. As the

respondent- appellant was not a party to the partition action it was

contended on behalf of the 1st defendant-respondent that she could not

validly file a petition of appeal in terms of section 754 of the Civil Procedure

Code which mandates that it is only a party to a case who is aggrieved by a

judgement can prefer an appeal. Since the respondent-appellant was not a

party to the case, it is inconceivable that she has a right of appeal against

62

the impugned order. It is abundantly clear from the wording of the section

754 that to invoke the provisions of subsection (1) of section 754 of the Civil

Procedure Code the appellant needs to be a party to the action.

It was contended on behalf of the respondent-appellant that the 1st defendant

is precluded from seeking a writ of possession as he had made the application

10 years after the entering of the final decree. A perusal of the Journal entries

maintained in the original court reveals that the final decree has been entered

on 22.06.1987 and the application for writ has been made on 20.02.1999.

In the circumstances I am of the view that the preliminary objection raised

against the maintainability of the appeal should be upheld for the reason

that the order appealed against cannot be subject of an appeal by a person

who is not a party to the case. In the circumstances the appeal preferred by

the respondent-appellant is dismissed without costs.


Nr/-

63

WANT OF PROPER INVESTIGATION OF TITLE AND FAILURE TO SUBMIT DECLARATION

UNDER SECTION 12 C. A.No.85/97(F)

D. C.Horana 4035/P

Pallage Justin Perera, Vs.

Yakupitiyage Asoka Ranjith

Before : A.W.A.Salam,J.

Counsel : Ranil Samarasooriya with J. Jayasooriya for Plaintiff- Appellant

and Sanath Jayathilake for Defendant-Respondent. Argued on Decided

on 16.03.2012.

17.09.2012.

A.W.A.SalamJ.

This appeal arises from the judgment and interlocutory decree entered on

14.6.1994 by the learned district judge of Horana in the above partition

action. By the said judgment and interlocutory decree the learned district

judge rejected the devolution of title set out by the plaintiff-appellant and

entered judgment to partition the land on the devolution of title set out by

the defendant-respondent. For purpose of convenience the plaintiff-

appellant will be referred to in the rest of this judgment as the "plaintiff and

the 5th defendant-respondent as the "5th defendant".

There was no controversy as to the identity of the corpus. It is common

ground that the land sought to be partitioned is depicted as lot 2 in the

preliminary plan bearing No 2435 prepared by D.M. Athulathmudali, L.S

and Court Commissioner.

The plaintiff averred in the plaint that by virtue of the final decree entered in

partition action No 3534, the subject matter of the action was allotted to one

Davith Singho who died leaving his widow Lillee Nona and four children.

Accordingly, the widow became entitled to an undivided 1/2 share of the

corpus and the children 1/8 share each. The plaintiff in his plaint did not

concede any rights to the 5th defendant. The position of the plaintiff is that

64

the 5th defendant attempted to enter the building on the corpus from or

about October 1989 without any manner of title.

The 5th defendant in his statement of claim admitted that in partition action

No 3534 the aforesaid Davith Singho was allotted the subject matter of the

present action and a person by the name Liyanage Dandiris and the said

Davith Singho were jointly allotted lot E. The said Davith has conveyed an

undivided area of 6 yards X 5 yards from and out of lot E to one Sirisena

and it has finally changed hand to the 5th defendant. Further the 5th

defendant averred that by another deed the said Davith transferred an

undivided 5 yards X 2 yards from and out of lot E to him. He further pleaded

that Davith by another deed (738) conveyed to him an undivided extent of 10

perches from and out of lot E.

The 5th defendant further maintained that on 4.11.1960 by indenture of

lease bearing No 2584 attested by B W Senanayaka NP, he took on lease an

area of 12 fathoms X 10 fathoms in order to construct a house. He further

stated that he constructed a house on the land leased out to him by Davith

and was in occupation of the said house until 1960 right up to the time of

the 2nd defendant Chandalal forcibly evicted him from the said house.

It was strenuously argued on behalf of the plaintiff that the learned judge

has erred in coming to his finding that the 5th defendant is entitled to lot B,

when all his deeds refer to lot E, depicted in plan 1446 produced marked as

PI. As a matter of law, it is to be observed that the learned district judge has

seemingly oblivious to the principle of law that the language used in a

document is plain in itself, evidence may not be given to show that it was

not meant to apply to such facts, as has been laid down in section 94 of the

Evidence Ordinance. It is useful at this stage to reproduce the illustration to

section 94 of the Evidence Ordinance which reads as follows..

A sells to B by deed “my estate at Negambo containing 100 acres”. A

has an estate at Negambo containing 100 acres. Evidence may not be

given of the fact that the estate meant was one situated at a different

place and of different size.

As has been contended by the plaintiff the deeds 5D1 and 5D10 produced by

the 5th defendant in plain language state that the land sold to the 5th

defendant was lot E in plan No 1350. In the lower court the 5th defendant

has categorically taken up the position that the partition case has been filed

to exploit the misdescription of the land in the deeds produced by the 5th

defendant. It is quite clear from the final decree entered in case No 3534

that lot E has been allotted to the 12th defendant and the plaintiff in that

case. The plaintiff in the earlier partition case was the predecessor in title of

the 5th defendant namely Davith Singho. According to the final decree, lot E

in extent of 18.43 perches and bounded on the north by cart road Raigam to

Anguruwatota, East by the cart road to Milleniya, South by Pahalagewatta

and West by Lot D. Quite significantly, the Western boundary referred to in

65

the deeds of the 5th defendant is lot D which is the corpus in the present

action. The learned district judge has failed to analyze all these matters

when he investigated title into lot D.

On the contrary the deeds produced by the plaintiff refer to Lot D and the

boundaries and extent are applicable only to lot D unlike in the case of the

document produced by the 5th defendant.

On a clear analysis of the evidence placed before the learned district judge in

the documents produced, it is abundantly clear that there has been no

proper investigation of title, prior to the entering of the interlocutory decree

allotting undivided shares to the parties.

Above all, Section 12 declaration has not been submitted by the plaintiff at

any time during the pendency of the case. Taking into consideration all

these matters, I am of the view that a great injustice has occurred by reason

of the failure on the part of the learned district judge to evaluate the

evidence according to law and to consider the failure regarding compliance

under section 12 of the Partition Act.

For reasons stated above, the impugned judgment and interlocutory decree

are set aside and the case sent back for rehearing. The learned district judge

shall take steps to compel the plaintiff to comply with section 12 before the

matter is taken up for trial.

There shall be no costs.


NR/-

66

DEFAULT OF APPEARANCE IN PARTION CASE- SECTION 28 OF THE C.P.C- NON

COMPLIANCE

Lendawa Lokuge Wilson.

Vs.

Katumullage Gunasiri

BEFORE : A.W.A. Salam, J.

COUNSEL : Razik Zarook PC with Rohan Deshapriya for the 2A Defendant-

Appellant.

Tharanath Palliyaguruge for the Respondent.

DECIDED ON : 27.06.2012.

A.W.A. Salam, J.

The sequence of the incidents leading to this appeal are as follows:- The

Plaintiff filed action seeking the partition of the land called “Kajugahawatte”

depicted in plan No. 8872 made by K.G.S. Yapa Licensed Surveyor. As

disclosed in the plaint, the Plaintiff and the 1st Defendant were entitled to

undivided shares in the corpus in the ratio of 1:15. The 2nd Defendant filed

amended statement of claim dated 16.07.1990 through Mr.H.M. Bary Attomey-

at-Law claiming inter alia prescriptive title to the whole land. As per journal

entry dated 24.05.1991, the death of the 2nd Defendant had been brought to the

notice of Court and thereafter 2A Defendant had been substituted in his place.

As per journal entry No. 16 dated 29.07.1991, the Fiscal had reported of the

service of notice on 2A substituted Defendant. As it transpired from this journal

entry 2A Substituted Defendant was absent on that day and the case was set

down for trial on 18.02.1992. On that day when the matter came up for trial the

Plaintiff having sought an adjournment, the trial was re-fixed for 03.09.1992.

When the matter was taken up for trial on that day, parties suggested the points

of contest and on that occasion Mr. Suraweera Attomey-at-Law appeared for 2A

Defendant on the instructions of Mr. H.A. Bary. After the formulation of the

67

points of contest the trial was then refixed for evidence to be led. Significantly,

18.01.1993, the date fixed for evidence to be led fell on a public holiday and the

case was not mentioned but called on 11.01.1993 instead and then re-fixed for

trial for 22.07.1993. Subsequently, the trial was fixed for 07.01.1994 on which

day only the 1st Defendant and the Plaintiff were present in Court. They moved

that the trial be taken de novo and the said application was allowed by Court.

On the same day it was recorded that the 2A Defendant was not present and not

represented by Counsel either.

Further, the Counsel for the Plaintiff made an application that although 2A

Defendant was represented by Mr. Bary no proxy had been filed on his behalf

and as there was no dispute between the Plaintiff and the 1st Defendant, the

learned District Judge decided to take evidence on the matter and delivered

judgment on the same day as prayed for by the Plaintiff and the 1st Defendant.

Subsequently the 2A Defendant made an application to Court to set- aside the

said judgment. At the inquiry into this application 2A Defendant gave evidence

and stated inter alia that her husband filed statement of claim through Mr.

Hussain Bary Attomey-at-Law and points of contest also were raised on his

behalf. She further testified that 08.01.1993 was a public holiday and in any

event on 07.01.1994 she was suffering from a stomach ache. When she came to

meet the registered Attomey-at-Law she had been informed that he had died and

the case is fixed for trial on a later date. Hence, she moved that the judgment

delivered against her be vacated and granted an opportunity to participate at the

trial to present the case as per statement of claim already tendered. -

The learned District Judge delivered his order dismissing application of the 2A

Substituted Defendant on the ground that it is not in conformity with section

48(4) (a) and (b) of the Partition Act. He further held that the Petitioner should

have submitted the circumstances and the ground to amend the final decree.

It was urged by the President’s Counsel who appeared for 2A

DefendantAppellant that the learned District Judge has totally disregarded

Section 28 of the Civil Procedure Code which lays down that if any registered

Attorney shall die or removed or suspended or otherwise become incapable to

act for the client at any time before judgment, no further proceedings shall be

taken in the action against the party for whom he appeared until 30 days after

notice to appoint another registered Attorney has been given to that party either

personally or any such other manner as the court directs.

68

Any question relating to the defects of a proxy is curable and not fatal and

cannot be prejudicial to the person or the party affected by it. This principle has

been reiterated in the case of Senarath Pathiranalage Goonethilake vs. S.P. Sunil

Ekanayake SC Appeal No. 26/09.

On a perusal of the impugned order of the learned District Judge, it appears that

he has misdirected himself with regard to the unavailability of the proxy in the

record. Initially, appearance has been marked for the Appellant indicating that

Mr. Suraweera had been instructed to appear for him. Subsequently even the

points of contest have been raised by the Counsel on the instructions of Mr.

Bary. This clearly shows that the parties and the Court proceeded on the basis

that Mr.

Bary had been given a valid proxy.

Even otherwise the death of Mr. Bary has' not been notified to 2A Substituted

Defendant in that the Court has failed in its duty imposed under section 28 of

the Civil Procedure Code.

Taking all these matters into consideration it is my considered view that the

learned District Judge has erred with regard to a vital point of law which has

ended up in a miscarried justice. Hence the impugned judgment cannot be

allowed to remain and should be set-aside. Accordingly the order dated

07.01.1997 is set-aside and the learned District Judge is directed to allow 2A

Substituted Defendant to present her application and make an appropriate order.


JUDGE OF THE COURT OF APPEAL.

NR/-

69

Section 70 of the partition act. Distinction between dismissal of action for nonprosecution and withdrawal. Position of a defendant who had asked for the dismissal of the action.

CA 646/99 (F)

D.C. Ratnapura 8140/P

09. U. Amaradasa 9th

Defendant-Appellant

Vs.

Dasanayake Lekamlage Plaintiff-Respondent and others.

BEFORE : A.W.A. Salam, J.

COUNSEL : Naveen Marapana for the 9th Defendant-Appellant.

Anuruddha Dharmaratne for the substituted 1st Defendant-Respondent and Pubudu de

Silva with S.H.U. Amarawansha for the Plaintiff-Respondent.

ARGUED ON : 17.07.2012 DECIDED ON

: 27.08.2012.

A.W.A. Salam. J.

This is a partition action brought by the plaintiff to have his

undivided 1/6 share of the corpus divided in terms of the Partition

Law No 21 of 1997 without specifying the exact manner in which the

title to the balance 5/6 share devolved. Amongst other parties, the 9th

defendant filed statement of claim moving for a dismissal of the

70

action and a declaration of his entitlement to lots A, B and C depicted

in the preliminary plan. He also prayed that the plaintiff and the other

defendants who are in occupation of the said lots be ejected.When

the case came up for trial on 29.3.1999 the plaintiff moved to have

the action withdrawn and the 9th defendant at that point of time

applied for leave of court to prosecute the action in place of the

plaintiff. The application of the 9th defendant was refused and

accordingly the partition action was dismissed. The 9th defendant

who is referred to in the rest of this judgment as the “appellant”

challenges the propriety of the refusal of his application shutting him

out from prosecuting the partition action on the basis that the said

refusal is contrary to law and in particular the ratio decidendi in

Pieris Vs Chandrasena 1999-3 SLR at page 153.

The learned district judge has refused the application of the appellant

based on the decision in Amrasingha Vs Podimenike 1997 1 SLR

349 where the rule was laid down that a defendant may be permitted

to prosecute a partition action only when the plaintiff fails or neglects

to prosecute the action and not on account of a withdrawal of the

action which is a deliberate act of abandoning the prosecution of a

partition action. Further it was specifically laid down that a defendant

who had asked for a dismissal of the action is not entitled to have

leave of court to prosecute the partition action.

Admittedly in this case the action has been dismissed not on account

of the failure or neglect on the part of the Plaintiff to prosecute the

action but quite strikingly on the deliberate act of the plaintiff having

moved for the withdrawal of the action. Further, the appellant has not

sought to have the corpus partitioned instead has moved for a

71

dismissal of the same. The prayer to the statement of claim filed by

the appellant is for a declaration that he is entitled to certain and

defined allotments of land depicted in the preliminary plan.

The appellant takes up the position that the judgement relied upon by

the learned district judge can easily be distinguished from the facts of

this case. He further submits that the learned judge has failed to

interpret properly the provisions of section 70 of the Partition Law

No 21 of 1977. In the case of Pieris Vs Chandrasena 1999 3 SLR

153, it was held that there is no legal impediment to a defendant to

prosecute a partition action in pursuance of section 70 as the

phraseology "any defendant" appearing in section 70 would mean

any defendant irrespective of whether he has soil rights or not.

In the light of the authorities cited above it is quite clear that a

defendant is entitled to prosecute a partition action even if he has no

soil rights only in circumstances where there has been a failure or

neglect on the part of the plaintiff to prosecute the action and not

when the action is brought to an end by reason of the dismissal that

emanates on the application of the plaintiff to withdraw the case. In

the circumstances, I am unable to find fault with the basis on which

the learned district judge refused the application of the appellant to

prosecute the action. For the foregoing reasons, I am of the opinion

that the impugned judgement does not warrant the intervention of

this court. The appeal therefore is dismissed without the

plaintiffrespondent having his costs of appeal.


72

NR/-

ERROR COMMITTED BY THE D.J. SECTION 189- POWERS

CONFERRED TO CORRECT SUCH MISTAKES

DISTRICT JUDGE HAS CLEARLY COMMITTED A CLERICAL MISTAKE IN ALLOTTING SHARES IN

HIS JUDGMENT. AS SUCH, THE PETITIONER OR ANY OTHER PARTY OR THE DISTRICT JUDGE

HIMSELF SHOULD BE ENTITLED TO INVOKE THE POWERS OF COURT UNDER SECTION 189 OF

THE CPC..

C.A. Rev.No.1567/2002

D.C. Horana 5973/P

Malavipathirage Amarawathie Malani alias vs

Wijesinghege Jayantha

Before: A.W.A.Salàm, J.

J.C.Weliamuna with J. Wijetunga for the 1 st Defendant-Petitioner and Malin Rajapakse for the PlaintiffRespondent.

Written Submissions tendered on: 08.01.2004 - Argued on: 11.10.2007 - Original record was called for on:

05.03.2008- Original record was received on: 01.07.2008- Decided on: 08.06.2009

A.W.Abdus Salàm,J.

73

This is an application for revision, made by the 1st

defendantpetitioner (hereinafter referred to as the "petitioner") to

set aside and revise the judgment entered in partition

proceedings No

5973/P dated 27 June 2001.

As narrated by the petitioner, the plaintiff (deceased) filed action

to partition the land described in the plaint. According to the

plaintiff, by virtue of a grant made by the State the original owner

of the subject matter was one Barchchi Appu whose rights on the

chain of title relied upon by the plaintiff devolved in the following

manner.

1. Plaintiff-3/4 excluding an extent of 25 perches.

2. 1st defendant-petitioner-25 perches

3. 2nd defendant-1/4

Although it was common ground that Barchchi Appu was the

original owner of the subject matter, the petitioner in her

statement of claim denied the devolution of title as shown by the

plaintiff. In turn she set up a competing devolution of title.

According to the petitioner, undivided shares from and out of the

corpus devolved on the parties in the following manner.

1. Plaintiff-64/112 sharers less 25 perches.

2. 1st defendant-petitioner-26/112 shares+ 25 perches

3. 2nd defendant-22/112 shares

The main point of contest that came up for determination was

whether the devolution of shares shown by the plaintiff or the

petitioner that should be given effect to in the action. At the

commencement of the trial, evidence of the plaintiff was recorded

without any points of contest but later the petitioner raised

several points of contest. Thereafter, at the resumption of the

trial, parties resolved all their disputes after having recorded

explicit admissions as to the manner of devolution of title and

evidence was then led to give effect to the compromise reached.

74

At the closure of the evidence of the plaintiff, the learned district

judge was informed that there was no necessity to answer the

points of contest raised at the trial, as the parties had resolved

their differences whilst the plaintiff was giving evidence.

Immediately thereafter the matter was fixed to tender schedules

of shares. Upon the receipt of the schedules of sharers, the

learned district judge delivered his judgment on 27 June 2001.

According to the petitioner the learned district judge had

pronounced and read out the judgment in open court on 26 July

2001 in the presence of the parties declaring the entitlement of

shares in the following manner.

1. Plaintiff-undivided 64/112 share less 25 perches

2. Petitioner-undivided 26/112 share + 25 perches

3. 2nd defendant-undivided 22/112 share

Being aggrieved by the judgment so pronounced, the plaintiff

preferred an appeal by petition dated 22nd of August 2001,

challenging the propriety of the judgment amongst other grounds

that the decision was based on an erroneous list of shares

submitted by the petitioner.

The petitioner has produced the petition of appeal preferred by

the plaintiff marked as A 24. In the said petition the plaintiff

categorically states that the learned district judge has

erroneously adopted the schedule of shares prepared by the

petitioner in determining the rights of the parties and sought by

way of relief to have the judgment revised, incorporating the

schedule of shares tendered by the plaintiff. However, for reasons

best known to the plaintiff, the petition of appeal was sought to

be withdrawn after the appealable period was over. For this

purpose the plaintiff had submitted a petition and an affidavit

which the petitioner had vehemently opposed. The petitioner

states that she did not prefer an appeal and had no reasons do

so, as the judgment pronounced in open court was in terms of

the compromise reached in the case. It is quite clear from the

document marked as A 24 that by its judgment court declared

the parties to be entitled to undivided shares from and out of the

corpus in the manner of distribution of shares submitted by the

75

petitioner. The very reason which influenced the plaintiff to prefer

an appeal against the judgment and interlocutory decree was

that the court had without any justification pronounced that the

parties are entitled to undivided shares from the corpus in terms

of the schedule of shares suggested by the petitioner.

It is significant to note that the petitioner too takes up the

position that the judgment pronounced in court was based on the

schedule of shares filed by the petitioner that was consistent with

the evidence led at the trial and the compromise reached among

the Parties. However to the surprise of the petitioner, she had

later found out that the judgment dated 27 June 2001 was totally

different from that was pronounced and read out when it was

delivered in open court. According to the petitioner, the judgment

which she had later realized as being totally different from the

impugned judgment had allocated shares to the parties in the

following manner.

1. Plaintiff-undivided 3 roods 1.1 perches.

2. 1st defendant-undivided 25 perches

3. 2nd defendant-undivided 1 Rood 8.7 perches.

According to the petitioner when the plaintiff had filed a motion

to withdraw the appeal, she had objected to the same on the

premise that the judgment pronounced was the proper judgment

and not the judgment which was filed of record. This is quite

evident from the fact that the petitioner has not elected to prefer

an appeal against the judgment since she was not aggrieved by

the judgment that was said to have been pronounced in open

court.

It is quite surprising as to what made the substituted-plaintiff to

file an application before the learned district judge on 5th

September 2001, almost one month after the filing of the petition

of appeal to withdraw the same, without assigning any reasons.

As a matter of fact the impugned judgment by which the learned

district judge declared the parties to be entitled to shares, as per

schedule filed by the plaintiff is an obvious error which needs to

be rectified by the district court. Quite unfortunately the district

76

court has refused the application on the misapprehension that

the learned judge who delivered the judgment has later been

appointed as the secretary to the Judicial Service Commission

and therefore cannot be assigned the task of correcting the

judgment.

It is noteworthy at this stage to ascertain the evidence led at the

trial with regard to the title. There was no contest with regard to

the identity of the corpus and it was lots A , B and C depicted in

plan No 3470 dated 24 April 1999 made by D M Athulathmudali,

Licensed Surveyor is the corpus.

Admittedly, the original owner of the corpus was the State. There

was no contest that the rights of the State had been transferred

by way of a grant to Egodage alias Weerakoon Achchige

Barchchiappu. It is common ground that the said Barchchiappu

had transferred an undivided 1/2 share of his rights to one

Martin Singho who died leaving as his legal heirs the widow and

seven children. They are kuruppu Arachchcige Alice Nona

(widow) and Children by the names (1) Weerakoon Arachchge

David (2) – do - Leelawathie (3) - do - Yasalin Nona (4) - do –

Josalin Nona (5) - do

- Sapin Nona (6) - do - - do - Premawathie and (7) - do -

Dayawathie . By P2 the legal heirs of Martin Singho had

transferred their rights to Karunaratna Edirimanna who by P3

had transferred the same to one Malavi Pathiranage Siriyawathie.

The said Siriyawathie having transferred an undivided 25

perches to the petitioner had conveyed the balance rights from

and out of 1/2 share to the plaintiff. Accordingly the 1/2 of the

rights of the original owner devolved on the parties in the

following manner.

Plaintiff – undivided 1/2 – 25 perches

Petitioner - undivided 25 perches

The remaining undivided 1/2 share of the corpus of

Barchchiappu had devolved on his children Panis, Dulinona and

Diyonis who had died without marriage or issues. Thus the two

77

children of Babappu, namely Panis and Dulinona had become

entitled to an undivided 1/4 share each from the corpus.

The 1/4 share of the aforesaid Panis had devolved on his only

child the aforesaid Martin Singho whose rights had devolved

upon his demise on the aforesaid widow and the seven children.

Thus the widow became entitled to an undivided 1/8 share by

right of marital inheritance which had been transferred on P6 to

the plaintiff and the 2nd defendant-respondent. Accordingly the

plaintiff became entitled to an undivided 1/8 share and the2nd

defendant-respondent to an undivided like share.

The remaining rights of Martin, namely an undivided 1/8 share

had devolved on his children (1) Weerakoon Arachchge David (2)

do - Leelawathie (3) - do - Yasalin Nona (4) - do – Josalin Nona (5)

- do - Sapin Nona (6) - do - - do - Premawathie and (7) - do -

Dayawathie as aforesaid in the proportion of 1/56 share each.

According to the evidence of the plaintiff appearing at page 2 of

proceedings dated 19 February 2001, the rights of the aforesaid

David had devolved on the petitioner. Further as has been stated

by the plaintiff at the same page the rights of Leelawathie,

Yasalin Nona, Sapin Nona, Josalin Nona and Premawathie had

devolved on the petitioner. In terms of the said evidence of the

plaintiff out of the remaining rights of Martin (1/8 share) an

undivided 6/56 share had devolved on the petitioner and the

balance 1/56 being the share of Dayawathie has not been dealt

in the evidence of the plaintiff. Therefore the petitioner from the

source gets 6/56 shares and the balance 1/56 should be left

unallotted.

From and out of the rights held by Dulinona (1/6 from paternal

inheritance and 1/12 inherited from her brother Diyonis) the

petitioner had been given 1/12 share . The balance rights of

Dulinona namely 1/6 share from paternal inheritance had

devolved on her children Sugath Singho and the 2nd defendant.

The rights of Sugath Singho have devolved on the plaintiff. Thus

the rights of Dulinona have devolved on the parties as follows

Petitioner – 1/12 share.

Plaintiff - 1/12 share.

78

2nd defendant – 1/12 share.

To comprehend the true spirit of the settlement, it is necessary to

Peruse the evidence along with the compromise reached among

the parties. Both the evidence of the plaintiff and the admissions

recorded at the trial clearly show that the unambiguous intention

of the parties was to distribute shares to them in the following

manner.

1. Plaintiff – (1/2 less 25 parches) + 1/16 + 1/12 = 31/48 or

17/336.

2. 1st defendant (Petitioner)- ( 25 perches) + 1/56 + 5/56 +

1/12 = 4/21 or 64/336

3. 2nd Defendant - 1/16 + 1/12 = 7/48 or 49/336

4. Dayawathie (to be unallotted) 1/56 = 6/336

In terms of section 189 of the Civil Procedure Code, the court

may at any time, either on its own motion or on that of any of the

parties, correct any clerical or arithmetical mistake in any

judgment or any error arising therein from any accidental slip or

omission, or make any amendment which is necessary to bring a

decree in conformity with the judgment. On a plain reading of

section it is quite manifest that what has been contemplated

under section 189 is to facilitate the correction of an arithmetical

or clerical error by Court, and not by the very same judge who

delivered the order or judgment.

The learned counsel of the petitioner has submitted that the

prejudice caused by entering a judgment contrary to what was

pronounced in open court is so grave that the petitioner has no

other specific remedy and in that context it is the right of the

petitioner to invoke the revisionary jurisdiction of this court to

undo the harm caused to the petitioner resulting from the patent

mistake.

79

In the circumstances it is my considered view that the judgment

of the learned district judge should be revised to confer the

parties the shares they should be entitled to, in terms of the

evidence led at the trial subject to the compromise reached.

Hence, it would be seen that the learned district judge has clearly

committed a clerical mistake in allotting shares in his judgment.

As such, the petitioner or any other party or the district judge

himself should be entitled to invoke the powers of court under

section 189 of the Civil Procedure Code. This appears to be a

classic case where the ends of justice have not been met as a

result of an obvious variation, unconsciously made by the

learned district judge disregarding the evidence of the plaintiff

that has to be read together with the explicit terms of settlement

arrived at among the parties.

Taking all these matters into consideration, this court directs the

learned district judge to correct the schedule of shares given in

the judgment, in order to render the same consistent with the

evidence of the plaintiff read together with the compromise

reached among the parties at the trial. In doing so the learned

district judge is at liberty to exercise his discretion and correct

the schedule of shares in the judgment and disregard the

observations made by me with regard to the devolution of title

observed in my judgment.

Subject to the above directions, I allow the revision application.

The learned district judge shall take appropriate steps to give

effect to this judgment and make the necessary corrections on

being invited to do so by the petitioner or any other parties to the

case.


80


Kwk/-

Consequences of a consent judgment. Agreement to abide by an order to be pronounced

after inspection.

The 3rd defendant has not only agreed to abide by

any order pronounced by the district judge after

such inspection but refrained from adducing any

oral evidence when he was called upon to do so. I

have perused the petition and affidavit of the

petitioner along with the other material available.

The totality of the 3rd defendant’s case as revealed

by him points to lack of ‘exceptional circumstances’

C.A.Revision: CA 1573/2003 DC.Kandy case No. 12518/P

T.P. ALPINIS

-Vs.-

81

Uruabeygedar Bandupriya

Godigamuwa

Before: A.W.A. Salam,J.

Counsel: R.Dissanayaka for 3rd Defendant-Petitioner for the Defendant -Appellant. Riza Muzny for the Plaintiff-Respondent.

Abdul Salam J

This is an application for revision and/or restitutio in intergram arising from a

judgement of the district court of Kandy dated 9thJune 2003 in Case

No.12518/P.

The plaintiff - respondent, hereinafter referred to as the "plaintiff", filed

action with a view to put an end to the co-ownership of the land called

"Aswaddumawatta" depicted in preliminary plan No. 1000 dated 11 February

1995 made by A.R. Gurusinghe, licensed surveyor morefully described in the

schedule to the amended plaint. According to the plaintiff the co-owners of

the subject matter were the 1st, 2nd, 4th, 5th defendant-respondents and

himself. The defendant-petitioner hereinafter referred to as the "petitioner",

sought the exclusion of certain lots depicted in the preliminary plan No 1000,

on the footing that lots 3, 4, 5, and 9 depicted in the preliminary plan of

partition made by A.R. Gurusinghe licensed surveyor, formed part of a

different land belonging or in the possession of the 3rd defendant.

At the commencement of the trial, both parties raised their points of contest,

which included a contest regarding the identity of the corpus.

The matter of the contests then proceeded to trial. The plaintiff called A.R.

Tissa Gurusinghe, L.S. & commissioner of court to testify in regard to the

identity of the corpus. Thereafter, the plaintiff gave evidence and after a

lengthy cross-examination, his case was closed reading in evidence P1, X &

X1. Afterwards, the 1st and 2nd defendants closed their cases reading in

evidence 1D1, 1D2, 2D1 & 2D2.

When the trial resumed on 26th March 2003 for the 3rd defendant to unfold his

case, it was brought to the notice of court that he was unable to lead the

evidence of Percy Nanayakkara, L.S., due to his poor health condition. In the

circumstances, the parties agreed to have the corpus identified by the trial

judge after an inspection of the subject matter. Accordingly, an inspection

was carried out as agreed among the parties and the learned district judge by

judgment dated 9.6.2003 inter alia came to the conclusion that the land sought

82

to be partitioned has been depicted as Lots 4 to 12 in plan No.1000 marked

as ‘X’ made by A.R.T.Gurusinghe, L.S. He further held that lots 1 to 3 of the

said plan ‘X’ should be excluded from the corpus.

The 3rd defendant has filed the present application inter alia to have the said

judgment of the learned district judge revised and/or set aside to enable the

district judge to consider plan No.160 (X5) and 1207 (X10), which plans he

alleges have not been properly considered by the trial judge. The learned

counsel for the plaintiff has urged that the 3rd defendant has totally

suppressed from court the agreement reached among the parties to resolve

the dispute relating to the identity of the corpus by an inspection. On a

perusal of the petition and affidavit tendered by the 3rd defendant it is evident

that the 3rd defendant has made no reference at all to the said agreement

dated 26th march 2003. For reasons best known to the 3rd defendant, he had

not appealed against the judgment entered in the main case. The plaintiff’s

counsel has suggested that the 3rddefendant has not lodged an appeal either

as he chose not to challenge the decision by way of an appeal or that he knew

that the judgment is not appealable as it emanates from a settlement. The

failure on the part of the 3rd defendant to disclose the said agreement should

be viewed as an impediment to the instant revision application, as the said

agreement is quite pertinent to the present application.

There is no doubt that the powers of revision conferred on the court of appeal

are extremely wide and such powers cannot be said to come to an end, even

if a right of appeal lies. Nevertheless, the jurisdiction to exercise revisionary

powers being a discretionary remedy, it can only be invoked if there be “

exceptional circumstances” warranting the intervention.

The 3rd defendant has not only agreed to abide by any order pronounced by the

district judge after such inspection but refrained from adducing any oral

evidence when he was called upon to do so. I have perused the petition and

affidavit of the petitioner along with the other material available. The totality of

the 3rd defendant’s case as revealed by him points to lack of ‘exceptional

circumstances’.

The petitioner has also failed to satisfy court as to the existence of any

fundamental vice in the proceedings. Besides, the judgment of the learned

district judge in no way appears to be tainted with any illegalities or manifest

injustice, as the corpus came to be identified by the learned district judge,

upon an unambiguous compromise entered between the contesting parties.

83

Even though the 3rd defendant has made an accusation against his Attorneyat-

law, in my judgment he cannot be allowed to complain against him, as the acts

and deed of the Attorney-at-law in the conduct of the 3rd defendants’ case

should be regarded as the acts and deeds of the 3rd defendant himself, unless

the contrary is proved. In this case, it is significant to note that the 3rd

defendant has not proved the contrary.

Even as regards the question of delay in filing the revision application, the 3rd

defendant has not satisfactorily explained as to what prevented him from

making the application during a period of three months.

In the circumstances, it appears to me that the judgment of the learned

district judge and the answers to Issue Nos. 3 to 8 are consistent with the

evidence adduced at the trial and the agreement reached among the parties.

For the above reasons the judgment of the learned district judge is affirmed.

Accordingly the application made by the 3rd defendant is dismissed with

costs.

Sgd/-

JUDGE OF THE COURT OF APPEAL

I do hereby certify that the foregoing is a true copy of the Court of Appeal

Judgment dated 11.10.2007 filed of record in CA.No. 1573/2003.

Chief Clerk, C/A.

Typed By:

Compd with:

[1] Before P.Wijeratne J.

84

EXECUTION UNDER SECTION 52 OF THE PARTITION

ACT

A W A Salam, J

The plaintiff-petitioner-respondent (hereinafter referred to as the "plaintiff")

was declared entitled to a particular allotment of land by the final decree

entered in the partition action. Subsequently, as he is entitled to, the

plaintiff applied to the district court for a writ of possession in terms of

section 52 of the partition act, to have himself placed peaceful and vacant

possession. The position of the plaintiff was that he was allotted lot 1 in

plan No 990 and that he had permitted his brother to wit; the petitioner who

has invoke the revisionary jurisdiction of this court in respect of the present

application, to look after and manage the business of the plaintiff located on

the allotment of land the plaintiff has been declared entitled to by the final

CA Appeal No. CA

1482/2003 D.C. Mt. Lavinia 149/95 /L

Sumanadasa Gomis Vs Polwattage Darmasena Gomis,

85

decree. The plaintiff further alleged that the petitioner had placed the 2nd

respondent (Dayaratne) in possession of the said business premises. The

plaintiff claimed that despite the demand made by him of the petitioner and

the 2nd respondent to vacate and hand over vacant and peaceful possession

of the premises in question, on or before particular date and as both of them

failed and neglected to comply with the demand, he sought redress in terms

of the Partition Act.

According to the petitioner he has been in possession of the land and

premises that relate to the application for writ of possession from the year

1992. Admittedly the partition action has been filed on 1st December 1995.

The question that was raised by the petitioner before the learned district

judge was whether the plaintiff had made the application for writ of

possession under section 52(b) or under 52 (1). The learned district judge by

her order dated 28th of August 2003 allowed the application for writ of

possession. The basis on which the learned district judge allowed the

application for writ was that the plaintiff had come to court under section 52

of the Partition Act and the petitioner has failed to establish a the legality of

his occupation over the land and premises. Even though reference has been

made by the plaintiff to section 52(b) of the Partition Act, on an examination

of the circumstances that had led up to the making of the application for

writ and the position taken up by the petitioner, it is quite clear that the

application of the plaintiff for writ of possession had been in reality made

under section 52 (1) of the Partition Act. In the circumstances the learned

district judge cannot be faulted for concluding that the application has in

fact been made under section 52 (1) of the Partition Act.

The petitioner further took up the position before the learned district judge

that he has been in continuous possession of the property in question from

the year 1992 and that he had effected several improvements to the

property. In order to establish his claim the petitioner produced several

documents relating to payment of licence fee, rates, telephone bills etc. Even

though the petitioner had attempted to establish that he was in possession

of the subject matter from that year 1992, the documents produced by him

only relates back to the year 1996.

86

The learned district judge having considered the documents produced by the

petitioner came to the conclusion that he could not have preferred a claim to

the survey based on his possession from the year 1992.

In terms of the matters revealed by the petitioner himself by his petition it is

rather unnecessary to have made him a party in the partition action since

he had no title to the property nor was he a tenant of the premises in

respect of which the plaintiff had sought a writ of possession.

In the circumstances the learned district judge cannot be faulted for issuing

the writ of possession, despite the objection raised by the petitioner. For the

reasons set out above the necessity to quash the impugned order does not

arise. Hence the application for revision stand dismissed subject to costs.

Sgd/-


Kwk/-

--------------

I do hereby certify that the foregoing is a true copy of the judgment dated

28.07.2008 filed of record in C.A. No. 1482/03.

Typed by :

Compared with : Chief Clerk-Court of Appeal

87

FAILURE TO ADDUCE EXCEPTIONAL

CIRCUMSTANCESPARTITION-REVISION-SECTION 34

A.W. Abdus Salậm, J.

This is an application to revise and set-aside the judgement and

interlocutory decree dated 11th November 2003 entered in the

above case. The facts briefly are that the parties agreed to have the

corpus in the action partitioned in terms of the evidence led at the

trial without any points of contest being raised. The plaintiff

respondent, 2nd defendant-respondent and the 4th defendant-

petitioner gave evidence at the trial. Subsequently judgement was

entered followed by an interlocutory decree to have the corpus

partitioned. Accordingly the 4th defendant- petitioner was declared

entitled to purchase an extent of 10 perches of land from and out of

the rights of the plaintiff-respondent so as to include the buildings

marked as “1, 2 and h”.

Subsequently, the 4th defendant-petitioner made an application to

have the interlocutory decree amended, on the basis that the

plantations he was declared entitled to had not been ordered to be

included into the lot to be allotted to him. The learned district Judge

by his order dated November 11, 2003 refused the application on

the basis of section 33 and 34 of the Partition Act. According to the

learned judge, the improvements to which the 4th defendant-

petitioner has been declared entitled to have been directed to be

included into his lot as far as practicable and in the event of the said

petitioner not getting the improvements or part thereof is entitled to

compensation under section 34 of the Partition Act. The impugned

order of the learned district Judge does not appear to be contrary to

law or inconsistent with the evidence led at the trial. In any event

the 4th defendant-petitioner has failed to adduce any exceptional

88

circumstances to warrant the conclusion that the judgement and

interlocutory decree should be revised.

For the foregoing reasons, I see no grounds whatsoever to interfere

with the judgement, interlocutory decree and the order dated

November 11, 2003. Hence the revision application filed by the 4th

defendant-petitioner stand dismissed subject to costs.

SGD/-Judge of the Court of Appeal

C. A. No: CA 254/ 2004 DC Horana: 48/99P

Mahawattage Don Chandrasekara,

Chandrawila,

Koskolawatta,

Horana.

4th Defendant-Petitioner

Vs

Mahawattage Don Nandasena,

3/484, Mahinda Mawatha,

Pitipana (North),

Homagama

Plaintiff –respondent

Mahawattage Don Jayasena,

Bandaragama (West),

Bandaragama,

1st Defendant –Respondent and several

others

Before : A.W.A.Salâm,J.

Counsel : Jacob Joseph for the 4th

Defendant-Petitioner and Asoka

Serasingha for the

Respondents

Argued on : 25.01.2008.

Decided on : 19.08.2008

89

FAILURE TO SATISFY COURT AS TO THE EXISTENCE OF ANY FUNDAMENTAL VICE IN THE

PROCEEDINGS.

BESIDES, THE JUDGMENT OF THE LEARNED DISTRICT JUDGE IN NO WAY

APPEARS TO BE TAINTED WITH ANY ILLEGALITIES OR MANIFEST

INJUSTICE, AS THE CORPUS CAME TO BE IDENTIFIED BY THE LEARNED

DISTRICT JUDGE, UPON AN UNAMBIGUOUS COMPROMISE ENTERED

BETWEEN THE CONTESTING PARTIES.

C.A.Revision: CA 1573/2003 DC.Kandy case No. 12518/P

T.P. ALPINIS

-Vs.-

Uruabeygedar Bandupriya

Before: A.W.A. Salam,J.

Counsel: R.Dissanayaka for 3rd Defendant-Petitioner for the Defendant -

Appellant.

Riza Muzny for the Plaintiff-Respondent.

Decided on: 11th October 2007

Abdul Salam J

This is an application for revision and/or restitutio in intergram arising from a

judgement of the district court of Kandy dated 9thJune 2003 in Case

No.12518/P.

90

The plaintiff - respondent, hereinafter referred to as the "plaintiff", filed

action with a view to put an end to the co-ownership of the land called

"Aswaddumawatta" depicted in preliminary plan No. 1000 dated 11 February

1995 made by A.R. Gurusinghe, licensed surveyor morefully described in the

schedule to the amended plaint. According to the plaintiff the co-owners of

the subject matter were the 1st, 2nd, 4th, 5th defendant-respondents and

himself. The defendant-petitioner hereinafter referred to as the "petitioner",

sought the exclusion of certain lots depicted in the preliminary plan No 1000,

on the footing that lots 3, 4, 5, and 9 depicted in the preliminary plan of

partition made by A.R. Gurusinghe licensed surveyor, formed part of a

different land belonging or in the possession of the 3rd defendant.

At the commencement of the trial, both parties raised their points of contest,

which included a contest regarding the identity of the corpus.

The matter of the contests then proceeded to trial. The plaintiff called A.R.

Tissa Gurusinghe, L.S. & commissioner of court to testify in regard to the

identity of the corpus. Thereafter, the plaintiff gave evidence and after a

lengthy cross-examination, his case was closed reading in evidence P1, X &

X1. Afterwards, the 1st and 2nd defendants closed their cases reading in

evidence 1D1, 1D2, 2D1 & 2D2.

When the trial resumed on 26th March 2003 for the 3rd defendant to unfold his

case, it was brought to the notice of court that he was unable to lead the

evidence of Percy Nanayakkara, L.S., due to his poor health condition. In the

circumstances, the parties agreed to have the corpus identified by the trial

judge after an inspection of the subject matter. Accordingly, an inspection

was carried out as agreed among the parties and the learned district judge by

judgment dated 9.6.2003 inter alia came to the conclusion that the land sought

to be partitioned has been depicted as Lots 4 to 12 in plan No.1000 marked

as ‘X’ made by A.R.T.Gurusinghe, L.S. He further held that lots 1 to 3 of the

said plan ‘X’ should be excluded from the corpus.

The 3rd defendant has filed the present application inter alia to have the said

judgment of the learned district judge revised and/or set aside to enable the

district judge to consider plan No.160 (X5) and 1207 (X10), which plans he

alleges have not been properly considered by the trial judge. The learned

counsel for the plaintiff has urged that the 3rd defendant has totally

suppressed from court the agreement reached among the parties to resolve

the dispute relating to the identity of the corpus by an inspection. On a

perusal of the petition and affidavit tendered by the 3rd defendant it is evident

that the 3rd defendant has made no reference at all to the said agreement

91

dated 26th march 2003. For reasons best known to the 3rd defendant, he had

not appealed against the judgment entered in the main case. The plaintiff’s

counsel has suggested that the 3rddefendant has not lodged an appeal either

as he chose not to challenge the decision by way of an appeal or that he knew

that the judgment is not appealable as it emanates from a settlement. The

failure on the part of the 3rd defendant to disclose the said agreement should

be viewed as an impediment to the instant revision application, as the said

agreement is quite pertinent to the present application.

There is no doubt that the powers of revision conferred on the court of appeal

are extremely wide and such powers cannot be said to come to an end, even

if a right of appeal lies. Nevertheless, the jurisdiction to exercise revisionary

powers being a discretionary remedy, it can only be invoked if there be “

exceptional circumstances” warranting the intervention.

The 3rd defendant has not only agreed to abide by any order pronounced by the

district judge after such inspection but refrained from adducing any oral

evidence when he was called upon to do so. I have perused the petition and

affidavit of the petitioner along with the other material available. The totality of

the 3rd defendant’s case as revealed by him points to lack of ‘exceptional

circumstances’.

The petitioner has also failed to satisfy court as to the existence of any

fundamental vice in the proceedings. Besides, the judgment of the learned

district judge in no way appears to be tainted with any illegalities or manifest

injustice, as the corpus came to be identified by the learned district judge,

upon an unambiguous compromise entered between the contesting parties.

Even though the 3rd defendant has made an accusation against his Attorneyat-

law, in my judgment he cannot be allowed to complain against him, as the acts

and deed of the Attorney-at-law in the conduct of the 3rd defendants’ case

should be regarded as the acts and deeds of the 3rd defendant himself, unless

the contrary is proved. In this case, it is significant to note that the 3rd

defendant has not proved the contrary.

Even as regards the question of delay in filing the revision application, the 3rd

defendant has not satisfactorily explained as to what prevented him from

making the application during a period of three months.

In the circumstances, it appears to me that the judgment of the learned

district judge and the answers to Issue Nos. 3 to 8 are consistent with the

evidence adduced at the trial and the agreement reached among the parties.

92

For the above reasons the judgment of the learned district judge is affirmed.

Accordingly the application made by the 3rd defendant is dismissed with

costs.

Sgd/-


I do hereby certify that the foregoing is a true copy of the Court of Appeal

Judgment dated 11.10.2007 filed of record in CA.No. 1573/2003.

Chief Clerk, C/A.

Typed By:

Compd with:

[1] Before P.Wijeratne J.

93

FALSE CLAIM OF PRESCRIPTION PUT FORWARD BY THE 1ST

DEFENDANT- SELF EXPLANATORY NATURE OF THE UNSATISFACTORY

CLAIM-LAW APPLICABLE

It is the duty of the Court to consider now the veracity of the 1st defendant’s version. The

gift he received as a gesture of goodwill for his good work ought to have been made at the

terminal point of his employment. With all reasonableness, it can be assumed that he truly

benefited by the gift at the completion of his 55th year or thereafter. Mudalihamy is said

to have died at 90 in 1965 as per certificate of death filed at the trial. Based on the said

certificate, he was born in 1875. Consequently, the 1stdefendant would have born in or

after 1895. He is likely to have reached his 55th year in 1950. The important question

that arises for consideration at this stage is where did Mudalihamy live from 1875 to

1950? The 1st defendant has not said that Mudalihamy lived elsewhere before 1950. This

I think is self-explanatory as to the nature of the unsatisfactory claim of prescription put

forward by the 1st defendant

Case No. CA 632/1999 (F)

D.C. (Avissawella). Partition 183

Wickrama Arachilage Jayathilaka

1A Defendant-Appallant

Vs

Wickrama Arachilage Jayathilaka

Galapitamada,

A.W.A.Salam. J

Counsel Athula Perera for Defedant Appellants and Daya Guruge for 2ndDefendant

Respondent

Written Submissions tendered on 27.07.2007

Decided on: 22.11.2007.

94

A W Abdul Salam J.

The facts peculiar to this case, some of which are borne out by the

proceedings had before the learned district judge, need to be briefly

narrated for clarity. According to the plaintiff and the 2nd defendant,

one “Wickrama Arachilage Mudalihamy”[1], who died in the year 1965

at his age of 90, was the owner of the property, which is the subject

matter of the partition action. In that action interlocutory decree was

granted for the partition of the corpus, against which the instant

appeal has now been preferred by the 1st defendant. The plaintiff, 1st

and 2nd defendant are children of Mudalihamy, besides 5 others who

transferred their rights in the land, derived through paternal

inheritance to the plaintiff.

The schedule of shares relied upon by the plaintiff, as set out in the

plaint is as follows.

Plaintiff 6/8

1st Defendant 1/8

2nd defendant 1/8

Total: 8/8

The 1st defendant vehemently opposed the claim of the plaintiff, on the

footing that he is the owner of the whole land by virtue of it being

gifted by the then owners and thereafter having acquired a prescriptive

title by long and prescriptive possession.

As far as the identity of the corpus is concerned, the land in respect of

which the 1st defendant claimed ownership by prescriptive possession,

is identical to and one and the same as the corpus of the partition

action. That is the land depicted as two distinct allotments marked as

lots 1 and 2 in the preliminary plan No. 268A filed of record. The

resultant position is that there was a implicit agreement in the most

unambiguous language, as to the identity of the corpus that is to be

partitioned according to the plaint or according to the statement of

claim of the 1st defendant. The position of the first defendant was that

he had acquired prescriptive title and thereafter transferred it on deed

No. 803 to his children namely the parties disclosed by his statement

of claim and therefore the plaintiff’s action should be dismissed and

95

the land in question should be partitioned according to the devolution

of title shown by him.

The plaintiff’s case was that Mudalihamy, the original owner has made

several Plantations on the corpus and effected other improvements

including the construction of a place of abode on it, for the occupation

of his family. The 1st defendant in his statement of claim while

denying the title of Mudalihamy maintained that the land in question

initially belonged to Dunumulla Estate and he became the owner of it,

from the time it was gifted to him in recognition of his services to the

estate, as an employee. On his own showing, he was a labourer

attached to it. He claimed that he has also acquired a prescriptive title

to the same by his long and prescriptive possession. The peculiar and

fallacious stand taken up by the 1st defendant was that his father

Mudalihamy, in fact occupied the land and premises in question as his

licensee. In the circumstances, the 1stdefendant stressed that neither

Mudalihamy nor his heirs are entitled to any rights from and out of

the corpus.

As far as the notarial conveyances pertaining to the rights in the land

are concerned, there had been only two such conveyances affecting the

land. It is important to examine the two deeds produced by both

parties, as abstracted below, regard being had to the dates of

execution.

Deed

No

date Notary Transferor Transferee extent

4494 22.08.1983 W.G.Padmasiri 5 Children

Mudalihamy[2]

of Plaintiff

5/8 of

5Acres3Roods

803 29.08.1983 GA Abayasena 1st Defendant Children[3] 3Acres of 5

½ Acres

At the trial the plaintiff gave evidence and called (1) Podibandara

Kulatunga (retired village headman) and (2) Ellegamaralalage

Jayawardena (an ex-employee of Dunumala, Janawasama estate) to

testify on her behalf. On behalf of the 1st defendant (deceased) (1)

Gamaralalage

Romel- nona (2) Kandearachchilage Punchibanda (3)

Wickramarachchilage Piyadsa (4) Wickremarachchilage Jayatilleke and

(5) Wickremarachchilage Ranasinghe gave evidence.

96

According to the plaintiff, Mudalihamy constructed a house on the land

and lived with his children for more than five decades. Prior to that, none

had occupied the subject matter. It had been cleared and improved by

Mudalihamy. The plaintiff emphatically asserted in her testimony that

the 1st defendant was an infant when Mudalihamy and his wife came to

occupy the subject matter. Mudalihamy had died while being in

possession of the subject matter and his remains had been buried in the

corpus itself. Almost all the children of Mudalihamy were born on this

land as narrated by the plaintiff.

The evidence of the plaintiff as to the possession of the subject matter by

Mudalihamy, is corroborated by the testimony of Kulatunga (retired

village headman) and Ellegamaralalage Jayawardena (an ex-employee of

Dunumala, Janawasama estate). According to the village headman,

Mudalihamy was the chief occupant of the house he occupied along with

his wife and the children Punchibanda, Gunawardena, Karunawathie

and Gnanawathie. The 1st defendant Edwin Singho had lived in a

separate house constructed by him after his union with Romelnona, who

was the ex-wife of his brother Gunawardena who was away from the

family to serve a jail term.

Witness Podibandara Kulatunga, has assumed duties as the village

headman of the area way back in 1953. From that year up to 1963 for

nearly ten years, he functioned as the village headman of the division in

which the subject matter is situated. According to him prior to the 1st

defendant moving into his own house on the land, there was only one

house on the corpus. That was the house built by Mudalihamy where he

continued as the chief occupant of that household right up to his death.

In fact, the 1st defendant as a minor lived in that house under

Mudalihamy.

The village headman further testified that Edwinsingho, the 1st

defendant has constructed his own house on the land and came to live

with Romelnona, when he was 25 to 30 years old. The 1st defendant has

not taken the least trouble to controvert his testimony either during the

crossexamination or in the course of presenting his defence. Further, if

the evidence of the village headman is untruthful, it is up to the 1st

defendant to suggest the motive behind it. In the absence of any such

allegation it is abundantly clear that the defence set up by the 1st

defendant is a mere imagination aimed at achieving a selfish goal.

According to the village headman, the 1st defendant has not engaged in

any permanent employment. Besides, the 1st defendant has not

produced a scrap of paper to show that he had ever worked for

Dunumala estate. In the light of the above facts, it is clear that the 1st

defendant could not possibly have come to possess the corpus as claimed

97

by him, because he was an infant when Mudalihamy had entered the

corpus.

It is the duty of the Court to consider now the veracity of the 1st

defendant’s version. The gift he received as a gesture of goodwill for his

good work ought to have been made at the terminal point of his

employment. With all reasonableness, it can be assumed that he truly

benefited by the gift at the completion of his 55th year or thereafter.

Mudalihamy is said to have died at 90 in 1965 as per certificate of death

filed at the trial[4]. Based on the said certificate, he was born in 1875.

Consequently, the 1st defendant would have born in or after 1895. He is

likely to have reached his 55th year in 1950. The important question that

arises for consideration at this stage is where did Mudalihamy live from

1875 to 1950? The 1stdefendant has not said that Mudalihamy lived

elsewhere before 1950. This I think is self-explanatory as to the nature of

the unsatisfactory claim of prescription put forward by the 1stdefendant.

Had the subject matter been treated as a part of a larger land, owned by

the proprietors of Dunumala estate, as the 1stdefendant tried to make

out, it is reasonable to expect from the 1st defendant to adduce

documentary proof, as to its ownership or confirmation of possession, to

give his claim some degree of resemblance pointing to ownership. Had

1st defendant been gifted with the subject matter by its alleged

proprietors in recognition of his services, the 1st defendant could have

called the DONOR to testify to that effect. The failure on the part of the

1st defendant or his children to adduce such proof should be taken as

unfavourable to the defence set up by them.

Ellegamaralalage Jayewardene, called by the plaintiff claimed that he

worked as a labourer of Dunumala estate from the year 1937 to 1957 as

a Kankany. From his childhood Jayewardene had known, Mudalihamy.

He said that even in the year 1937, Mudalihamy was living with his

children on the corpus and his vivid recollection was that Edwinsingho

the 1st defendant was 13 to 14 years at that time. Witness Jayewardene

was quite emphatic when he stated that the owner of the subject matter

at that time was Mudalihamy and his children occupied the house on the

land under his chief occupancy. According to him, Mudalihamy has

raised the entire plantation on the land.

On an examination of the evidence adduced by both parties this court is

of opinion that there was overwhelming evidence adduced by the plaintiff

at the trial as to the strong probability of Mudalihamy having entered the

subject matter and continue his long and prescriptive possession for a

period of five decades. Taking into consideration the various important

events that had happened during this period the 1st defendant cannot

98

have even reached the age of majority at the time when Mudalihamy

entered the property.

The learned district judge has also made an adverse comment against the

1st defendant, as there was ample evidence including the surveyor’s

report, which points toward the plantations on the subject matter having

been enjoyed not only by the 1st defendant and his children but also by

the plaintiff and 2nd defendant. Indisputably, therefore the possession of

the plantations on the corpus was not possessed by the 1stdefendant to

the exclusion of the plaintiff and 2nd defendant. The plaintiff has

claimed the ancestral house in which the plaintiff resides without any

dispute. This type of clear arrangement of possession conceded by every

party in the case militates against the concept of adverse possession as

contemplated in the Prescription Ordinance.

Above all it is quite significant to note that the 1st defendant who has

been so clamorous in vindicating his alleged prescriptive rights against

his father, brothers and sisters has taken up the position that he

transferred all his rights in the land to his children who were later added

as defendants to the caption. The 1st defendant in his attempt to transfer

all his rights in the land quite uncredictably has transferred an

undivided 3 Acres of 5 ½ Acres. This in my opinion speaks for volumes

as to the strength of the claim made by the 1stdefendant in relation to

his prescriptive title.a

The learned district judge in a painstaking exercise has analyzed the

evidence and concluded that the version of the 1stdefendant is

unacceptable in preference to the plaintiff’s case. In my view the learned

district judge has arrived at the right decision and his findings, and

judgment stand to reasons and should not be disturbed. For the above

reasons the appeal is dismissed with costs.


[1] Also referred to in this judgment as “Mudalihamy”

[2] Wickrama Arachilage Gunawardena, do- Punchi Banda, do- Piyadasa, do -Hamy

Nona, do -Karunaratne

99

[3] Wickrama Arachilage Jayathilaka, do- Chandrapala, do- Jinadasa, doAnulawathie, do

-Kalyanawathie, do- Kusum.

[4] Vide P 2 - the certificate of death of the original owner “Mudalihamy”.

[1] Vide P 2 - the certificate of death of the original owner “Mudalihamy”.

Right of access over the corpus IN A PARTITION

ACTION.CONSIDERATION

C.A. Appeal No. 571/99 (F)

D.C. Avissawela No. 1873/P

Kithsiri Balasuriya Siril and

Rajapakse Kanthi Sunethra Rajapakse,

Vs

Kalthotage Jayaratna,

Medagoda,

Before: A.W.A. SALAM, J.

100

Counsel: Padma Bandara for the 3rd and 4th

defendant-appellant and Sanjeewa Jayawardena

with Asoka Niwunhalla for the plaintiff-

respondent.

Argued on: 22.07.2010, 15.09.2010

Written submissions tendered on: 02.09.2010

Decided on: 09.02 2011

A.W.Abdus Salam, J.

The plaintiff instituted this action seeking a partition of the land

described in the schedule to the plaint which is depicted as lot 1 in

in the earlier partition plan No 59/1973 filed of record in partition

action No 12748/P.

As pleaded in the plaint, by virtue of the final decree entered in

case No 12748/P the original owner of lot 1 was one Elisa. On a

short chain of title set out in the plaint the undivided rights in the

corpus devolved equally on the plaintiff and the 1st defendant.

Further the plaintiff averred in the plaint that the 1st and the

second defendantappellants and the third defendant-respondent

started to forcibly crossover his land from 1991 without being

entitled to any right of access over the corpus.

The second and third defendant-appellants and 3rd

defendantrespondent maintained that they were entitled to use a

common public path across the corpus to gain access to a

waterfall and a cemetery. (Vide points of contest 6, 7 and 8).

Significantly, the pivotal question that came up for determination

in the partition action was the existence of this right away across

the land. The previous plan filed of record in the first partition

action was annexed to the plaint by the plaintiff in proof of his

claim as to the nonexistence of the alleged right away.

The said plan No 59/1973 depicts lot 1 to 18 and lot 1 which is the

subject matter of this partition action is shown at the extreme

South West. This plan has not been disputed by the parties

including the appellants. According to the entries made in the said

plan the preliminary survey in relation to the earlier partition

101

action has been done on the 13th and 14th of August 1969 and

the boundaries reopened on 22nd September 1973. The final

partition has been done on 24th, 28th and 30th November 1973. It

is crystal clear from the said plan that no roads had existed over

or across the land, namely lot 1 in that year 1973. Quite

significantly, a 10 feet wide road is located on the Northern

boundary of the corpus and it extends further along the South

Western boundary of lot 3 and 5 shown in the said plan. Above all

a public road runs along the eastern boundary of the corpus and

the 10 feet wide Road referred to above as being running on the

northern boundary of the corpus abuts this public road. This

clearly shows that in the year 1973 there had been no such road

way as claimed by the appellants existed across the corpus.

It is interesting to note that the second defendant in his statement

of claim denied the allegation contained in the plaint as to the

nonexistence of a right of way across the land and pleaded the

existence of a 10 chain long 9 feet wide road across the corpus

known as “Nakkawala Badahalage Hena Para” registered in

Ruwanwella Prashiya Sabawa and that several families including

the second defendant have acquired a prescriptive right for the

use of the said roadway to gain access to an said waterfall and

public cemetery.

First and foremost the claim made by the appellants to the alleged

roadway across the land is hopelessly vague. Further the

appellants also relied on the preliminary plan and the previous

partition plan in substantiation of their claim. They claimed that

the road in question was in existence for a period of over 50

years. If the road in question had existed over a period of five

decades, it is surprising as to why it had not been shown in the

previous partition plan.

In the preliminary plan No 813-P, Mr Gunasena, the Licensed

Surveyor and Commissioner of court has shown roadway which is

marked as lot 2 to the North of the land as opposed to the claim

made by the appellants to a roadway towards the South West

boundary. As a matter of fact the Commissioner gave evidence on

this matter and he had not been seriously cross examined by the

appellants on this matter.

The failure on the part of the appellants to cross examine the

Commissioner on salient points regarding the existence of the

roadway across the land has been treated by the Learned District

Judge as unfavourable to the appellants.

102

The Learned District Judge has also taken into consideration that

the path shown in the preliminary plan is said to be two feet in

width as opposed to the claim preferred by the appellants for a of

a 10 feet wide road. Further the appellants have not called any

Surveyors to testify on their behalf nor have seriously disputed

the testimony of the Commissioner. The evidence relating to the

superimposition of the earlier partition plan on the preliminary

plan has been of immense assistance to the Learned District Judge

to resolve the dispute. The Surveyor has clearly stated that the

footpath shown by him to be 2 feet in width does not look like an

old or clear path and therefore the Learned District Judge came to

the conclusion that the claim made by the appellants is false. The

Learned District Judge has come to this conclusion after

considering the evidence of the witnesses who testified before

her. Her observations with regard to the nature of the claim made

by the appellants had attracted strong criticism.

A perusal of the judgment clearly shows that the Learned District

Judge has taken immense pain to analyse the evidence. Her

observation as to the claim made by both parties had been very

fair AND reasonable in the light of the evidence adduced at the

trial.

For reasons stated above, it is my considered opinion that the

appellant have not shown any acceptable grounds warranting the

interference of this Court with the findings and the judgment of

the Learned District Judge. Hence, this appeal is dismissed subject

to costs.


FRIVOLOUS APPEAL- PENAL COSTS- DEFENDANT ENTERED AS A

BOARDER CLAIMING PRESCRIPTIVE TITLE- SEC 3 OF THE PRESCRIPTION

ORD- HOW IT SHOULD BE APPLIED

C.A. 740/2002 F

D.C. Colombo Case No : 17746/P

103

Ranjani Wickramage,

1st defendant-appellant

Vs

Daya Cedric Karunasena,

2nd defendant-appellant,

Before

A.W.A. Salam,J.

Counsel

Ruwan Rodrigo for the defendant appellants and Manohara R de Silva P.C.

With Miss P. Wickramaratne for the plaintiff-respondent.

Written Submissions Filed on: 23.02.2007 and decided on 02.04.2008.

A.W.Abdus Salam,J.

The only question that arises for determination in this appeal is

whether the learned district Judge has properly applied the

provisions of section 3 of the Prescription Ordinance to the

facts of this case. The plaintiff-respondent (hereinafter

referred to as the “plaintiff”) instituted action on 20-01-97 to

partition the land and premises bearing assessment No. 201, in

extent 4.5 perches situated at Colpetty, depicted in plan No.

3436 dated 12 November 1954. The subject matter is depicted

in plan No. 3546 dated 03-12-97 made by M.J. Sethunga,

Commissioner of court. There was no contest as to the identity

of the corpus.

According to the plaintiff-respondent prior to the institution of

the partition action, at a certain point of time the sole owner of

104

the corpus was one Justin Wickramage. Upon the death of the

said Wickramage and his widow the property in question has

devolved on the plaintiff and his only sister the 1st

defendantappellant (hereinafter sometimes referred to as the

“1st defendant” or jointly referred to along with the 2nd

defendant-appellant as “appellants”) in equal proportions by

right of paternal and maternal inheritance. The 1st defendant in

her statement of claim, maintained that the subject matter has

been incorrectly depicted in the preliminary plan and that she

has alienated her rights in the subject matter to a thirdparty.

By way of relief she prayed for dismissal of the partition action.

At the trial she raised no points of contest.

The 2nd defendant-appellant (hereinafter sometimes referred to

as “the 2nd defendant” or jointly referred to along with the 1st

defendant appellant as “appellants) is an intervenient who

claimed that he has prescribed to the corpus by long and

prescriptive possession, on a title independent and adverse to

that of the plaintiff. Quite significantly, the 2nd defendant is the

husband of the 1st defendant and the brother-in-law of the

plaintiff. More importantly, the 2nd and the 1st defendants had

occupied the house situated on the corpus as husband and

wife.

The learned district Judge having investigated the title under

section 25 of the Partition Act, No. 21 of 1977, held that the

claim of prescription had not been established and answered

the points of contest in the following manner.

1. The subject matter of the action which is more fully

referred to in the schedule to the plaint and

depicted in the preliminary plan of partition should

devolve on the parties as averred in the plaint.

105

2. The 2nd defendant has not acquired a prescriptive

title to the said property by right of possession as

averred in paragraph 5 of his statement of claim.

3. The plaintiff’s action should not be dismissed.

Admittedly the 2nd defendant has entered the subject matter as

a boarder during the lifetime of the father of the plaintiff and

the 1stdefendant. The father of the plaintiff and the 1st

defendant had died on 27 June 1983 and the 2nd defendant had

continued to be a boarder, when the plaintiff, 1st defendant and

their mother remained as the co-owners of the property.

The 2nd defendant married the 1st defendant on the

01.12.1985. As acknowledged by the 2nd defendant the death

of the mother of the plaintiff and 1st defendant had occurred on

the 10.05.1988. Accordingly, right up to the period ending

1005-88 the 2nd defendant has had no basis to claim any

prescriptive rights.

The plaintiff has filed this action on 20-01-97. Hence the

period that had elapsed since the death of the mother of the

plaintiff and the 1stdefendant and the date of the partition

action is 8 years 8 months and 10 days. The 2nd defendant was

quite emphatic that he had not acquired any prescriptive title

to the undivided rights of his mother-in-law, namely the

mother of the plaintiff and the 1st defendant. As a matter of

fact, the purported period of prescription against the plaintiff

would not have commenced to run until his mother’s demise,

since the 2nd defendant and the 1st defendant were occupying

the house on the subject matter jointly with the mother of the

plaintiff and the 1st defendant.

Under cross examination the 2nd defendant admitted that he did

not object to this land being included in the list of immovable

106

properties owned by the father of the plaintiff and the 1st

defendant. The letters of administration in testamentary case

No. 32912/T has been issued on 22nd October 1993. Quite

surprisingly, the defendants have not objected to the grant of

letters of administration to the plaintiff in respect of the

administration of the estate of the deceased Justin

Wickramage. The 2nd defendant under cross-examination had

unequivocally admitted that on the death of Justin Wickramage

the property in question had devolved on the two children.

On the totality of the evidence led at the trial there was no

controversy in regard to the following matters.

1. That the 2nd defendant entered the subject matter in 1980 as a

boarder.

2. That the 2nd defendant admitted the ownership of the father of

the plaintiff and the 1st defendant.

3. That the 2nd defendant acknowledged the plaintiff’s right of

inheritance from his father.

4. That the 2nd defendant did not object to letters of

administration being issued to the plaintiff in relation to the

administration of the estate of the plaintiff’s father and the

subject matter being included into the list of the immovable

properties owned by Justin Wickramage.

5. The 2nd defendant has not indicated as to when he changed his

character of possession in relation to his occupation which he

entered as a boarder.

107

6. The 2nd defendant had remained in occupation until 10-05-88

on which date the mother of the plaintiff and the 1stdefendant

had died and he had not claimed any prescriptive rights against

the mother of the plaintiff and the 1st defendant from 12-06-

831 to 10-05-882.

__________________________________________________

___________

1. The date of death of Justin Wickramage

2. The date of death of Gnanwathie Wickramage the mother of the plaintiff

and the 1st Defendant and mother-in-law of the 2nd defendant.

7. The period of time that had elapsed since the death of the

mother of the plaintiff and the 1st defendant up to the date on

which the partition action was filed counted only 8 years 8

months 10 days which fell short of 1 year 2 months and 20

days to set up a valid title of prescription against the plaintiff in

terms of section 3 of the Prescription Ordinance.

8. The letters of administration in the testamentary case of the

estate of the deceased Justin Wickramage has been issued on

22-10-93 and therefore the interval between the date on which

the partition action was filed and the letters of administration in

the above testamentary case had been issued was merely, 2

years 2 months and 28 days.

For the foregoing reasons the claim of prescription made by the

2nddefendant appears to me as absolutely frivolous. In the

circumstances, the learned district Judge was quite correct and well

within the law when he declared the plaintiff and the 1st defendant as

the co-owners of the property in question and directed the sale of the

property under the Partition Act. Hence I dismiss this appeal and affirm

the judgment and interlocutory decree entered by the learned district

Judge.

108

Taking into consideration the baseless and frivolous appeal filed

by the 2nd defendant, I make order that the plaintiff is entitled

to costs in a sum of rupees 50,000/- from the 2nd defendant

Sgd./



judgement dated02.04.2008 filed of record in CA 740/02 F.

Chief Clerk/Court of Appeal.

Typed by : Compard

with :

The admission of a power to vary the requirements of a decree once passed would

introduce uncertainty and confusion.

No one’s rights would at any stage be so established that they could be

depended on and the court would be overwhelmed with applications

for the modification on equitable principles of orders made on a full

consideration of the cases which they are meant to terminate. It is

obvious that such a state of things would not be far removed from a

state of judicial chaos

CA 1330/96 F DC Galle 7445/P

109

THAWALAMA GAMAGE BABY NONA Vs MABOTUWANA WITHANAGE

JOHN,

Before; A W A Salam, J

Counsel : Athula Perera with Priyantha Ananda for 3rd defendant- respondent and N R M Daluwatta PC with Mala Maitipe for 4th plaintiff-respondent. Argued On: 12.07.2011

Decided: 24.04.2012

A W Abdus Salam, J

This is an action to partition the land depicted in preliminary plan No

374 dated 01.09.1983 made by Gamini Nihal Amarasingha, Licensed

Surveyor produced marked as “X” at the trial.

Exclusions were sought by 3rd and 4th defendants in their statements

of claim of Lots C and B respectively, depicted in plan “X” based on the

premise that they did not form part of the corpus.

When the matter was taken up for trial on 30.5.1986, the parties

agreed to have the said lots B and C excluded from the corpus.

Thereafter the plaintiff and the 2nd defendant gave evidence at the

trial and concluded their cases. Accordingly, judgment was delivered

on the same day, thus confining the partition action to lots A and B

depicted in plan X. In the judgment, undivided shares were allotted to

the plaintiff and the 1st defendant in the proportion of 79:70. The

interlocutory decree entered was registered at the land registry under

Volume H 60/202.

Subsequently, the plaintiff filed a motion on 4.7.1988 and moved that

the proceedings dated 30.5.1988 be expunged, the interlocutory

decree entered on the same day be vacated and the case be set down

for trial afresh.

The district judge having considered the motion on 9.1.1989 (nearly 2

1/2 years after the interlocutory decree) vacated the judgment and

interlocutory decree dated 30.5.1986. The 3rd defendant thereafter

amended the statement of claim and took out a commission to show

the lots to be excluded by way of a superimposition of the title plan, on

plan X.

110

Finally, the district judge who succeeded the judge who vacated the

judgment and interlocutory decree embarked upon a fresh

investigation of title and entered judgment and interlocutory decree

identifying the corpus as lots Al, B and D in the preliminary plan (as

superimposed) and allotted shares to the plaintiff, 1st defendant and

2nd defendant in the proportion of 16:2:20 shares respectively and

kept 2 shares unallotted.

Later, the 4th defendant filed a petition supported by an affidavit

moving that the order vacating the judgment and interlocutory decree

entered initially be set aside and the judgment and interlocutory

decree entered for the second time be vacated on the ground that

court had no jurisdiction to vacate its own judgment and in any event

the 4th defendant had no notice of the application made by the

plaintiff to have the proceedings expunged and judgment and

interlocutory decree vacated. The learned district judge by order dated

2.10.1996 refused the application of the 4th defendant based on

premise that the initial judgment and interlocutory decree had been

vacated after notice of motion filed by the plaintiff given to the

Attorney-At-Law of the 4th defendant by registered post. This appeal

has been preferred by the 4th defendant-appellant to have the said

order of the learned district judge set aside.

As has been rightly contended by the learned president’s counsel bn

behalf of the 4th defendant-appellant, two matters arise for

consideration. The basic question is whether the court had jurisdiction

to vacate its own judgment, and if not, whether the vacation of its own

judgment is ultra vires.

This being a partition action the elementary question of law that needs to be focused at the outset is the conclusive effect and finality attached to a judgment and interlocutory decree entered under section 26 of the Partition Law, No 21 of 1977 as amended.

In terms of section 48(5) of the Partition Law the interlocutory decree

entered, shall not have the final and conclusive effect conferred on it

by section 48 (1) as against a person who, not having been a party to

the partition action, claims any right, title or interest to or in the land

or any portion of the land to which the decree relates as is not directly

or remotely derived from the decree, if, he proves that the decree has

been entered by a court without competent jurisdiction. As such the

plaintiff- appellant does not fall under the category of persons

enumerated under subsection 5 of section 48 nor does the court

comes under the category of being devoid of competent jurisdiction.

111

In terms of Section 48 (4) of the Partition Law a party to a partition

suit not served with summons, or a minor or a person of unsound

mind, not represented by a guardian ad litem, or a party who has duly

filed his statement of claim and registered his address, fails to appear

at the trial, and in consequence thereof the right, title or interest of

such party in the subject-matter of the action has been extinguished

or otherwise prejudiced such party may, on or before the date fixed for

the consideration of the scheme of partition under section 35 or at any

time not later than 30 days after the return of the commission for the

sale under section 42 is received by court, apply to the court for

special leave to establish the right, title or interest of such party to or

in the said land notwithstanding the interlocutory decree already

entered. The plaintiffappellant without doubt does not fall into any

other category of persons mentioned in section 48 (4) either. I

Quite significantly, no appeal has been preferred under section 48

(l)against the original judgment and ID. Remarkably, the plaintiff-

respondent has not filed his motion under the provisions of section 48

(4) of the partition law but on the footing that the terms of settlement

to exclude lots B and C had been mistakenly entered into. Taking into

consideration the inordinate delay in filing the motion of the

plaintiffrespondent, it is abundantly clear that the plaintiff-respondent

and the 1st defendant-respondent have incontestably conceded the

finality and conclusiveness of the interlocutory decree.

In this respect, it is useful to apply the principle Expressio unius est

exclusion alterius (the express mention of one thing excludes others).

In other words this principle means that items not on the list are

assumed not to be covered by the Statute. The same principle is also

expressed in a different manner with sound reasoning and logic by the

expression inclusio unius est exclusio jalterius which means that

inclusion of one is the exclusion of another.

The principles of law relating to interpretation of Statutes referred to

above are demonstrative of the position that the plaintiff- respondent’s

motion falls totally oiitside the purview of section 48(4) and (5) of the

Partition Law. In the circumstances, the relief sought by the

plaintiffrespondent in the motion could not have been granted by the

learned district judge. Hence, not only the impugned order has been

made without jurisdiction but all such other steps taken after the

impugned order are of no avail or force in law.

112

The importance of adhering to the terms of settlement has been

emphasized in the case of Sinna Veloo Vs. M/S Lipton Ltd 1963-66

NLR 214 where Herath J. held that once the terms of settlement

entered upon and recorded by court, a party cannot resile from the

settlement even though the decree has not yet been entered.

The general principle of law does not permit an appellate court to

interfere lightly with a settlement entered into by the parties and

notified to court. The rationale behind this has been expressed by

West J. in the case of Balprasad vs Dhamidhar Sakhram which is

printed as a footnote to the case of Shirekulidima’s Pa’s Hedga vs Blya

1886 10 Bombay 435. The said foot note is referred to by

Nagalingam,J in Perera vs Perera 50 NLR 81. For easy reference the

said foot note is reproduced below..

“The admission of a power to vary the requirements of a decree

once passed would introduce uncertainty and confusion. No

one’s rights would at any stage be so established that they could

be depended on and the court would be overwhelmed with

applications for the modification on equitable principles of orders

made on a full consideration of the cases which they are meant

to terminate. It is obvious that such a state of things would not

be far removed from a state of judicial chaos”.

In the case of Gunasekara Vs Leelawathie Sri Kantha Law Report Vol 5

Page 86, it was held that a compromise decree is but with the

command of a judge superseded it. It can therefore be set aside on any

of the grounds, such as fraud, mistake, misrepresentation etc., on

which a contract may be set aside. The plaintiff-respondent has not

sought to prove any such ingredients to avoid the terms of settlement.

The next question that arises for consideration is whether the 4th

defendant-appellant has been notified of the motion filed by the

plaintiff-respondent seeking the vacation of the judgment and

interlocutory decree. A perusal of the motion (2nd page) indicates that

there are three attomeys-at-law on record who are entitled to receive

notice of the motion. According to the endorsement made against the

names of the said attorneys that law only one registered articles

receipt number has been mentioned. That is the registered article

receipt No 1681. As has been submitted by the learned President’s

counsel, it is practically impossible to deliver a notice enclosed in one

envelope to three different attomeys-at-law.

113

It is a matter of record that the learned district judge on 9.1.1989

(page 116 of the brief) has not taken the trouble to verify as to whether

all those who are affected/whose rights are prejudiced by the motion

have received notice. Had this been properly done, the 4th

defendantappellant may not have had to invoke the appellate

jurisdiction of this court to espouse his cause.

The 4th defendant-appellant is attacking the impugned order inter alia

on the failure to serve notice of the motion on him as the court had no

jurisdiction to act on such a motion, even if it was entitled to vacate

the judgment and ID. It is trite law that where the want of jurisdiction

is patent, objection to jurisdiction may be taken at any time. In such a

case it is in fact the duty of the Court itself ex mero motu to raise the

point even if the parties fail to do-so.

In Farquharson v. Morgan 1[70 Law Time 152 at 153] Halsbury L.C.

said, " It has long since been held that where the objection to the

jurisdiction of an inferior court appears upon the face of the record, it

is immaterial how the matter is brought before the Superior Court, for

the Superior Court must interfere to protect the prerogative of the

Crown by prohibiting the inferior court from exceeding its jurisdiction.

In the same case, Lopes L.J. said, " The reason why, notwithstanding

such acquiescence, a prohibition is granted where the want of

jurisdiction is apparent on the face of the proceedings is explained by

Lord Denman (6 N. & M. 176) to be for the sake of the public, because

'the case might be a precedent if allowed to stand without

impeachment and I would add for myself, because it is a want of

jurisdiction which the court is informed by the proceedings before it,

and which the judge should have observed, and a point which he

should himself have taken”. re-quoted from W. Robison Fernando Vs

Henrietta Fernando, 74 NLR 57

In Ittapana v. Hemawathie 1981 1 Sri L. R. 476, it was held by the

Supreme Court held that the failure to serve summons is one which

goes to the root of the jurisdiction of the court which means that if the

defendant is not served with summons or otherwise notified of the

proceedings against him, the judgment entered in such circumstances

is a nullity and the persons affected by the proceedings can apply to

have the proceedings set aside ex debito justitiae. See also Sithy

Maleeha v. Nihal Ignatius Perera and Others 1994 3 SLR 270

(Emphasis is mine)

114

In the instant case the 4th defendant-appellant has taken up the

position that he was not served with notice of the proceedings which

culminated in the judgment and interlocutory decree having been set

aside and a fresh judgment and interlocutory decree substituted in

that place.

In the attendant circumstances, I am of the opinion that it is the duty

of this court to set aside the impugned order and expunge all

subsequent proceedings taken by the learned district judge so as to

give effect to the first judgment and the interlocutory decree that

followed.

As the plaintiff-respondent has failed to give notice to the appellant l of

the motion which in actual fact had led to the present appeal, the

appellant is entitled to recover costs of this appeal from the

plaintiffrespondent fixed at Rs. 25000/-.


Kwk/-

TRUST-PRESCRIPTION-SECTION 111 OF THE TRUST ORD

A.W. Abdus Salam J

115

This appeal raises several important legal questions. The main

question that arises for determination is whether the action is

time barred or improperly constituted. The plaintiff maintained

that the cause of action relied upon should not be held to be

barred or prejudiced by the provisions of the Prescription

Ordinance [1]. The defendants contended that the cause of action

was prescribed as at the time of institution of the action. The

learned district judge took the view that the alleged cause of

action upon which the action of the plaintiff has been founded is

misconstrued.

The action of the plaintiff is based on an instrument of trust.

Litigation commenced, as a result of the alleged betrayal of

confidence reposed to in the trustee. The trust in question

demonstrates the kind of affection and the sense of moral duty

intended to be discharged by an author of a trust towards the

plaintiff who is the sole beneficiary. Factual background of the

controversy filtering out unnecessary details can be summarized

as follows.

The plaintiff-appellant (hereinafter referred to as the “Plaintiff ")

was born on 9 May 1934 and lost his mother at his infancy. One

Salha Umma, a sister of the plaintiff’s father Abdul Rahuman,

thereafter brought him up. She was the owner of the entirety of

premises presently bearing No 47, Thimbirigasyaya Road,

Columbo 5. By deed No 54 dated 5 November 1942, attested by

A.L.M.A.Thassim Notary Public of Colombo, She gifted an

undivided one half (1/2) share of the said premises to her son

Ahamed Adham who was 28 years old at that time.

On the same day by deed No 55 attested by the same Notary,

Salha Umma (hereinafter sometimes referred to as the "author of

the trust") gifted the remaining undivided one half (1/2) share of

the said premise to her aforesaid son Ahamed Adham (hereinafter

referred to as the “trustee”) subject inter alia to the condition that

Upon the marriage of the plaintiff or his attaining the age of 21

years, whichever shall occur first, hand the said property to

him.

(Emphasis added)

116

The plaintiff attained the age of 21 years in the year 1955. The

trustee failed and neglected to hand over the property referred to

in deed No 55 to the plaintiff. Although the plaintiff married

subsequent to his attaining the age of 21 years, the marriage of

the plaintiff is not relevant to the alleged cause of action. The

failure and neglect on the part of the trustee to hand the subject

matter as expressly mandated by the author of the trust was a

blatant violation of the legitimate right and expectation of the

plaintiff.

The trustee died on 22nd August 1979, leaving a Last Will

bearing No 1035 dated 18 May 1976. By the said last will he inter

alia devised and bequeathed the premises bearing assessment No

47 to his son the 2nd defendant. At the time when the said last

will was executed the trustee was a co-owner of an undivided 1/2

share premises No 47 and held the balance undivided 1/2 share

of the premises as the trustee appointed under deed No. 55.

The 2nd defendant-respondent made an application to prove the

last will of his father bearing No 1035, after the lapse of 14 years

of the death of the Testator, despite the procedural requirement

to have applied for probate within three months of finding the

Will. He adduced no reasons for the delay in making the

application and the plaintiff was not made a party to the said

testamentary proceedings either. The last will was admitted to

probate in testamentary proceedings and by executors

conveyance No 15 dated 4 July 1995 attested by S.Safaya

Hassan Notary Public of Colombo the subject matter was

transferred to the

2nd defendant respondent.

The plaintiff averred in his plaint that he was unaware of the

provision of his beneficial interest in the said deed of gift No 55

until he was able to obtain a copy thereof on 4 March 1994[2].

The plaintiff further stated that notwithstanding the demand

made by him to convey the subject matter, the defendants

continues to be in wrongful and unlawful possession of the same.

Therefore the plaintiff inter alia sought a declaration that

conveyance bearing No 55 shall convey the said half share of the

117

properties to the plaintiff upon the plaintiff completing the age of

21 years or getting married whichever event occurred first.

The defendants who are the intestate legal heirs of Ahamed

Adham in their answer inter alia took up the position that under

the last will No.1035 the entirety of the premises in suit was

bequeathed to the 2nddefendant-respondent. They further took

up the position that the said Will was proved in testamentary

proceedings No. 33139/T and admitted to probate. They further

maintained that the plaintiff upon reaching the age of 21 years

on 9 May 1955 or upon his marriage on 21 April 1964 did not

prefer a claim to the half share of the premises in suit and

therefore not entitled to maintain the action.

The matter of the dispute proceeded to trial on 21 issues. The

plaintiff gave evidence and in addition led the evidence of

B.Fernando, a lawyer's clerk who had assisted the plaintiff to

obtain a copy of deed No 55 and closed his case reading in

evidence P1 to P7. The 2nd defendant respondent Fasal Ahamed

Adham gave evidence and the defendants closed their case

reading in evidence D1.

The trial judge by judgment, dated 25 October 2000, dismissed

the plaintiff’s action on the ground that the trust had completely

exhausted upon the plaintiff reaching the age of 21 years, i.e. on

9 May 1955. He further held that as the plaintiff filed this action

on 19 October 1995 when there was no such trust in existence,

he is not entitled to maintain the present action. The learned

district judge also held that upon reaching the age of 21 years in

terms of deed No 55, the plaintiff had become the owner of an

undivided 1/2 share of the land and premises in question and

therefore he cannot maintain an action to assert any rights as the

beneficiary of the instrument of trust. Consequently, the learned

judge held that issues 1to19 do not arise for determination.

Consequential issue No 20 was recorded at the instance of the

plaintiff. By the said issue, the court was required to determine

as to whether the defendants were entitled to set up a

prescriptive title to the subject matter and in addition entitled to

take up the position that the plaintiff’s cause of action is

118

prescribed by reasons of the provisions contained in the Trust

Ordinance. The learned district judge did not answer this issue

too. He observed that issue No 20 also does not arise for

determination.

Issue No 21(a) and (b) were raised in the course of the trial on

behalf of the defendants, inviting court to determine as to

whether by 9 May 1955 the purpose of the trust had been

completed and if it be so whether the plaintiff could maintain the

action. The learned district judge answered issue 21(a) in the

affirmative and 21 (b) in the negative. He also arrived at the

decision that since the plaintiff had reached the age of 21 years

on 9 May 1955, he should have filed action for a declaration of

title and ejectment of the defendants.

The plaintiff has preferred the present appeal to challenge the

propriety of the said findings, judgment and decree of the learned

district judge. The principal point of law that was argued before

me was the extent to which the provisions of the Prescription

Ordinance regarding limitation of suits are applicable to the

cause of action pleaded in the plaint. To be exact, the position of

the defendants was that the 2nddefendant respondent had

acquired a prescriptive title to the property in suit and in any

event, the alleged cause of action based on the instrument of

trust was time barred since the plaintiff had attained the age

required to hold the property on his own in the year 1955.

It is useful to advert to the relevant part of the judgment, which

deals with the extinction of the trust and the inability of the

plaintiff to maintain the action. A translation of the relevant

passage of the judgment into English would reveal the trial

judge's verbal expression as follows:

“According to the certificate of birth produced marked as P1, the

plaintiff was born on 9 May 1934. Hence, the plaintiff had

reached the age of 21 years on 9 May 1955. As stated in the

plaint even if there was a trust created by deed No 55 in favour of

the plaintiff, it had been in existence only until the plaintiff

passed the age of 21 years, i.e. until 9 May 1955. After that date,

in terms of deed No 55 there was no trust in operation in favour

119

of the plaintiff. As mentioned above the plaintiff has filed the

present action against the defendants on 19 October 1995. By

that time there was no trust in existence in favour of the plaintiff

affecting the subject matter of the action under and by virtue of

deed No 55. For these reasons, the action cannot be decided in

favour of the plaintiff as prayed for in the prayer to the plaint. In

terms of deed No 55, on the 9th May 1955 when the plaintiff had

completed 21 years, he has become the owner of 1/2 share of the

relevant property. He thus became the owner of the property in

terms of the conditions laid down in the deed. Therefore the

plaintiff is not entitled to maintain an action against the

defendant for a declaration that the relevant property is subject

to a trust as at 19th October 1995”.

There cannot be any doubt that deed No. 55 created an obligation

annexed to the ownership of property arising out of a confidence

reposed to in the trustee for the benefit of the plaintiff while the

trustee was nominally vested with the ownership. On a perusal of

deed No 55, the obligation thus created can be classified as

follows.

1. The ownership of the subject matter shall nominally to vest in the trustee

for a certain period.

2. The trustee shall out of the rents, profits and income of the subject matter

liberally spend for the maintenance and education of the plaintiff.

3. On the marriage of the plaintiff or his of attaining the age of 21 years,

whichever event shall first happen shall hand the property to the plaintiff.

In terms of section11, the trustee is bound to fulfil the purpose of

the trust and to obey the directions of the author of the trust

given at the time of its creation. Turning to the question as to

whether the trust in question had ceased to exist at the time of

the institution of the action , I would like to observe that the

learned trial judge has manifestly erred, when he came to the

conclusion that plaintiff had no cause of action to sue the

defendants on the instrument relating to the trust, as the

property in question had vested in him upon his reaching the age

of 21 years. Section 11 of the Trust Ordinance dealing with the

duties and liabilities of trustees enacts that a trustee is bound to

fulfill the purpose of the trust and obey the directions of the

120

author of the trust, given at the time of its creation, except as

modified by the consent of all the beneficiaries being competent

to contract. In terms of this section, where a beneficiary is

incompetent to contract, his consent may for that purpose be

given by Court.

By deed of gift No 54 executed in favour of Ahamed Adham, Salha

Umma has parted with an undivided one half (1/2) share of the

land and premises bearing No 47. On the same day and before

the same notary by P3[3] she gifted the remaining one half (1/ 2)

share of the premises No 47 to her son Ahamed Adham subject

to the conditions referred to therein. It is quite clear that

Ahamed

Adham was 28 years and the plaintiff was 8 years old at the time

of the execution of the two deeds.

She made the donations on two different deeds making Ahamed

Adham the absolute owner of an undivided one-half (1/2) share

of the land and premises bearing No 47 without any

qualifications. This was followed by the execution of another deed

by virtue of which the said Ahamed Adham again featured as the

donee of the balance share, subject to several conditions laid

down with farsightedness and careful thought. This shows the

seriousness of her intention and the state of purity of mind she

had attempted to maintain with regard to the level of her

magnanimity.

Salha Umma being the author of the trust in question was quite

concerned of the welfare of the plaintiff and never wanted to

discriminate him in any manner. She was conscious of her

obligation to ensure that the plaintiff was provided with the basic

requirements in life during his upbringing. She was equally keen

to confer him with absolute ownership of the remaining one half

(1/2) share of the property upon his attaining maturity or his

contracting a marriage if he decided to do so prior to his

attainment of 21 years. In order to make her benevolent scheme

a reality she wrote out two separate deeds in quick succession.

This is indicative of her intention. It was never her desire or wish

that her son should own the balance half share during the

lifetime of the plaintiff, whether he married or remained a

121

bachelor. In other words during the lifetime of the plaintiff she

unmistakably intended her son to be a trustee over the remaining

undivided onehalf (1/2) share of the land and premises in

question.

In order to arrive at the finding that the trust was extinct at the

time of the institution of the action the learned trial judge should

have satisfied that the purpose of the trust had been completely

fulfilled. As mentioned above one of the purposes of the trust

was to make the plaintiff the title holder of the property with

absolute right to possess the same. One of the ways in which the

purpose of the trust could have been fulfilled was to convey the

title and/or hand the property to the plaintiff as required by

the author of the trust. (Emphasis mine).

Admittedly the trustee has not only failed and neglected to hand

the trust property as required by the instrument of trust and

undertaken by himbut devised and bequeathed the same to his

son the 2nd defendant thus rendering intention of the author of

the will and its purpose meaningless.

The resulting position is that it can hardly be construed as the

trust had reached the stage of extinction as contemplated under

section 79 of the Trust Ordinance, as the trust property had not

beenhanded to the beneficiary. On a perusal of deed No 55 it

would be seen that the trustee has specifically undertaken and

accepted the gift subject to the conditions laid down. When

reproduced verbatim from deed No 55 the relevant portion, reads

as "……. to have and to hold the said land and premises……

subject to the conditions that……on the marriage of the said

Abdul Rafeek or on the said Abdul Rafeek attaining the age of

twenty one years, whichever event shall first happen, shall and

the said property to the said Abdul Rafeek". The gift made on

deed No 55 had been accepted by the donee (Trustee) clearly

subject to the conditions laid down therein. The operative words

in the deed read as " and the said donee doth hereby thankfully

accept the gift hereby made subject to the conditions herein

before contained”.

122

In terms of section 58 of the Trust Ordinance, the plaintiff is

entitled to have the intention of the author of the trust

specifically executed to the extent of the interest of the

beneficiary. The trustee has recurrently attempted to defeat the

purpose of the trust. He has further attempted to negate the

intention of the author as well. At the same time, the trustee has

acted in flagrant violation of the guaranteed protection and

interest of the beneficiary under section 58 of the Trust

Ordinance. The limited purpose of the creation of the trust was to

maintain the plaintiff and to provide for his education liberally

and for the trustee to hold the property for the benefit of the

plaintiff until such time he became qualified under the

instrument of trust to hold the same on his own. (Emphasis

mine).

The question would then arise for consideration is whether the

trustee could be deemed to have been discharged from his office

upon the plaintiff reaching the age of 21 years. It cannot be so,

as the purpose of the trust and the intention of the author of it

had not been carried out effectually by handing the trust

property to the beneficiary. When one looks at the evidence led

at the trial, it would be seen that there is not a vestige of evidence

of the trustee handing the property over to the beneficiary or at

least inviting him to take possession of it. This clearly shows that

the trust created had not reached the stage of extinction. The

trustee cannot be said to have completed his duties under the

trust, to have him discharged from the office of trusteeship or to

infer as being discharged from performing his functions as a

trustee, amidst the convincing evidence warranting the

irresistible conclusion that he has concealed the precise nature of

the trust from the beneficiary and in addition has intentionally

refrained from handing the property as required by the

instrument of trust. In the circumstances, it is safe to assume

that the trustee had continued in such capacity until his death.

Hence, it is my considered view that the trustee cannot be

regarded as having been discharged from his duties in terms of

section 73 of the Trust Ordinance.

In the circumstances the learned district judge has manifestly

erred when he concluded that the trust was extinct as at the time

of filing the action. Needless to say that if the trust was partly

123

fulfilled and therefore extant the learned trial judge's finding that

the plaintiff is not entitled to maintain an action for a declaration

that the property in question is subject to a trust is also equally

blameable.

The learned district judge has misdirected himself in law, when

he concluded by necessary implication that the action of the

plaintiff in any event is time barred. If he was properly guided by

the version of the plaintiff that he became aware of the precise

nature of his interest in the subject matter on 4th March 1994

subsequent to his obtaining a copy of deed No 55, the trial judge

would not have arrived at such a conclusion[4]. Based on

paragraph 9 of the plaint, the contents of which were duly proved

at the trial, it is irrational to hold that the action is prescribed in

law.

In Ismail et al. v. Ismail NLR - Vol.22, Page No - 476 dealing

with the construction of the starting point of the specific

performance for purpose of reckoning the period of prescription it

was laid down that when the time for the performance of an

obligation is fixed so that there can be a definite starting point for

the running of the period of prescription, the breach of contract

occurs when the performance does not take place within the

time so fixed. But when there is no fixed date for the

performance, but there is only an obligation to do any act within

a reasonable interval after a given date, there is no breach,

unless there is a refusal either on demand or otherwise to

perform the obligation, or unless the person liable has in some

way disabled himself from performing the contract.

In the case of De Silva vs. Margret Nona 40 NLR 251 the mother

of the plaintiff gifted a property by deed No 742 of March 2, 1923

to the defendant subject to the condition that the donee shall by

a valid deed of gift convey a one half of the premises to the

plaintiff upon his arrival from Kingston, Jamaica. The original

plaintiff arrived in Galle in June 1925 and since then was in

possession of the entire premises in question. The plaintiff

demanded a reconveyance of the undivided ½ share of the

property by letter dated 10 May 1935. The defendant replied on

13 May 1935 refusing to comply with the demand. The

124

defendant’s Counsel argued that the claim of the plaintiff for a

conveyance under the terms of P 1 was prescribed. Even though

it was strenuously argued that the reconveyance of the half share

was required only upon the arrival from Kingston Jamaica,

Keuneman J. affirmed the judgement of the learned district judge

directing the defendant to effect a reconveyance taking into

account the fact that the plaintiff may not have known the

existence of the deed P 1, and the fact that something in the

nature of acceptance of the terms and conditions of P 1, was

required of the plaintiff. His Lordship construed the requirement

to effect a re-conveyance as being an act to be performed within a

reasonable time after the arrival of the plaintiff at Galle. It was

emphatically laid down in the said case that prescription runs

only from the refusal of the demand for the conveyance. The de

facto possession of the interest in question, was taken into

account to cure the long delay in making the request for a

conveyance. In coming to this conclusion His Lordship gave due

weightage to the principle established in the case of Senaratne v.

Jane Nona (1913) 3 C. A. C. 83. It was further held that

reasonable time had expired when the demand for the

conveyance was made and refused in 1935 and

prescription began to run only from the date of refusal to effect

the conveyance.

For purpose of completeness a brief reference need to be made to

the principle established in Senaratne Vs. Jane Nona reported in

(1913) 3 C. A. C. 83. In that case the plaintiff’s brother bought a

land for the plaintiff utilising the funds of the latter. On the

strength of the purchase made by the brother, the plaintiff went

into possession of the land in 1895 and remained there until

1912. The brother who bought the land for the plaintiff died in

1912 and his administratrix included the said land in the

inventory of immovable properties of the deceased. The plaintiff

filed action against the administratrix for a conveyance. The

administratrix took up the position that the cause of action was

barred by prescription in as much as the action was not brought

within three years of the date of purchase. Lascelles C.J. with

Wood Renton J. concurring over-ruled the previous judgment in

Marthelisappu Vs. Jayawaradena 11 NLR 272 and proceeded to

125

hold that the cause of action arose when the property was

included in the inventory and that the action was not barred.

In the instant case, it is somewhat unfortunate that the trial

judge has not properly addressed his mind to document marked

as P5. P5 is a letter written by the plaintiff to the 1st defendant

and dispatched by registered post. The letter P5 has been

properly addressed to the 1st defendant. Where a piece of

evidence has been admitted without objection, it is not open to

the opposite party to challenge it at a later stage, except to

counter the evidence. In the case of Cinemas Ltd vs

Soundararajan[5] it was held that in a civil case when a

document is tendered the opposing party should immediately

object to it. Where the opposing party fails to do so, afterwards

the trial judge has to admit the document unless the document is

forbidden by law to be received in evidence.

P5 is dated 09 January 1994. The plaintiff in P5 inter alia draws

the attention of the defendants to his visits to the house of the

defendants on several occasions to inquire about his share of the

property. He further refers to the promise held out to give the

plaintiff his due share of the property. He also draws the

attention to the request made by the defendants on a previous

occasion begging for time to come to a settlement, as they were

looking forward to resolve their problem regarding the property at

Old Moor Street. In the final paragraph of P5, the plaintiff has

urged that he be informed as to when he would be given

possession of his half share of the property.

The contents of P5 were not contested, except a bear statement

made by the 2nd defendant that P5 was not received. However,

the 1st defendant to whom the letter was addressed did not give

evidence. P5 and P5a had been tendered at the trial without any

objection. None of the defendants had taken the trouble to reply

P5. The learned President's counsel has adverted me to the

various positions taken up by the 2nd defendant with regard to

the failure to reply P5. Learned President's counsel has drawn

the attention of court that at one point of time, the 2nd defendant

had given evasive answers to overcome certain difficulties

resulting from the failure to reply P5. Later the 2nd defendant

126

attempted to maintain that his father paid the plaintiff off and

that it would have been so because of the last will. On another

occasion, the 2nd defendant was trying to maintain that no reply

was sent as P5 did not specify a particular property. Yet at

another stage he said that no reply was sent as he was under the

impression that the plaintiff was paid off by his father.

The disinclination exhibited by the 2nd defendant to properly

answer the questions relating to P5 and his peculiar attitude that

was lacking corporation towards the elicitation of the truth as to

the entire dispute compels me to comment adversely on the

credibility of the defence put forward and the evidence adduced

through the 2nd defendant. The failure of the defendants to

controvert the contents of P5 by way of a reply in writing or

otherwise isequivalent in effect to the defendants having

acknowledged the existence of the trust. Based on the said

acknowledgement and fraudulent acts carried out in concert by

the trustee and the 2nd defendant to defeat the existence of the

trust, it cannot be said that the plaintiff’s cause of action is time

barred.

The letter marked as P5 clearly shows that the plaintiff has

admittedly sought the delivery of possession of the subject matter

on 9 January 1994. It is common ground that the defendants

did not reply this letter, even though the plaintiff has requested a

reply within 14 days of the letter. The plaintiff initiated

proceedings on 19 October 1995. Based on P5 the refusal to

fulfil the obligation, in terms of P3, i.e. to hand the property to

the plaintiff should be regarded as having taken place within a

period of 14 days from 9 January 1994.

On the other hand, though the plaintiff in this case did not have

de facto possession as in the case of Margrett Nona to

demonstrate an admission to the right to possession, the

plaintiff’s entitlement to be placed in possession has been

admitted by the defendants by their unusual silence and

inactiveness towards P5. As such, it does not appear to be in

harmony with the commonsense principles or the provisions of

law to rule that the plaintiff’s action is time barred.

127

P3 required the trustee to hand the property of the plaintiff upon

the happening of one of the two events referred to therein. It only

fixed the enabling point of time to hand the property to the

plaintiff but did not fix the terminal point of time. The plaintiff

did not know the precise nature of his right until 1994. His

demand by P5 has been made within the period that enabled him

to take possession. P3 does not prohibit him from being placed

in possession at any time after the happening of one of the events

concerned (which ever occurred first) but it certainly disentitled

him from handling the property prior to the happening of one of

the specified events. In the circumstances, it is my considered

view that the demand P5 has been made at the appropriate time

and upon non-compliance of the demand, the plaintiff filed the

action within the time frame permitted in law.

The 2nd defendant in his evidence admitted as having been told

by his father that the plaintiff was paid a sum of rupees 5000/-

towards the purchase of his rights in the subject matter. This

version of the defendants appears to be unreliable, as they have

not taken up this position in their answer. In the result the

claim of the 2nd defendant that the plaintiff compromised his

beneficial interest in the subject matter for a sum of rupees

5000/- appears to be an afterthought to circumvent P3.

Saravanamuththu vs De Mel 49 NLR 529 is a case where the

election of the respondent to the Parliament of Ceylon was

challenged on many grounds including impersonation. One

Rosalin Nona, apparently a supporter of the respondent was

imprisoned on her pleading guilty to a charge of impersonation.

Having to face severe hardship at the prison she wrote to the

respondent. Secondary evidence of the contents of the letter was

led at the inquiry. The secondary evidence revealed that Rosalin

Nona wrote to Mr, R, A, de Mel at his Colombo address stating

that she was suffering as she voted for Mr. de Mel impersonating

another. She appears to have written in the same letter that she

had called at the respondent's house and handed him the

summons in her case before she went to the Magistrate's Court.

In the said letter she had also referred to a person by the name

Sam Silva, as the the one who bailed her out suggesting thereby

that Sam Silva was a person whose name would be familiar to the

128

respondent. She recalled in her letter of having been detected at

Kanatte polling booth. She also categorically inquired from De

Mel in the said letter as to whether he too had not seen her there.

Emphasising that she had never served a jail term before, she

appealed to Mr. De Mel to help her out. She further added that

some of her relatives visited her in jail told her that Mr, de Mel

would come to see her.

The respondent De Mel admitted the receipt of this letter. The

explanation given by him for the failure to reply was twofold. He

stated that he was not proficient in Sinhala language to read the

letter and that he was pestered with such letters which compelled

him to consign them to the waste paper basket unread. Taking

into consideration that the respondent was a public man, elected

twice as Mayor of Colombo, His Lordship took the view that the

reasons given by the respondent against failure to reply the letter

was inconceivable. It was admitted on behalf of the respondent

that, it demanded a reply as to whether the contents of the letter

were either true or false, had it been read.

Applying the principal so explicitly laid down in the case of

Sarawanamuththu (supra), I find it difficult to accept the 2nd

defendant’s explanation, given in respect of the failure to reply

P5. The plaintiff in P5 has clearly said the following, to wit:

1. That he had visited the 1st defendant on several occasions.

2. The purpose of the said visits was to inquire about the plaintiff’s

share of the property.

3. On the previous occasion the 1st defendant and her children

promised to give the plaintiff his share.

4. However, the defendants required time to fulfil the promise, as

they were trying to resolve certain problems affecting a property

at Old Moor Street.

5. The problem affecting the property at old Moor street had been

resolved.

6. When will the defendants deliver possession of the plaintiffs half

share in the property?

7. A reply should be sent within 14 days.

129

Having given my anxious consideration to the contents of the

letter P5, I am not inclined to think that any reasonable and

prudent man would ever take the risk of remaining silent after

reading P5. Therefore I assume that the imputations, assertions

and observations made in the said letter have been conceded by

the defendants. The fact that the letter in question had been sent

by registered post strengthens the plaintiff’s case. when a letter of

the kind of P5 is sent by registered post, it ordinarily assumes the

nature of a legal document than a personal note and the

defendants ought to have replied the same. In the circumstances,

I have no option but to apply the rules laid down in the case of

Sarawanamuththu.

The defendants are the intestate legal heirs to the estate of the

trustee. The 2nd defendant respondent is one of the beneficiaries

of the last will of the deceased trustee. The defendants have

admittedly intermeddled with the estate of the late Adham even

prior to the filing of the testamentary case.

The law relating to executors de son tort is well recognized under

our law. After the death of Adham and prior to the filing of the

testamentary action during a period of well over 13 years (from

22 August 1979 to 18 January 1993), the defendants (including

the surviving spouse) have dealt on many occasions with the

estate of Adham. Hence, I am quite satisfied that the defendants

particularly the widow of Adham and the 2nd defendant

respondent can be regarded as executors de son tort of the estate

of Adham.

Even if the trust is to come to an end with the death of the

Trustee, yet the Trust Ordinance requires the 2nd defendant

respondent to hold the subject matter for the benefit of the

plaintiff as directed under section 96.

In the circumstances, I have no hesitation in endorsing the view

expressed by the learned President's counsel that the defendants

could safely be regarded as executors de son tort and bound by

the trust to the same extent as the trustee himself was bound by

it . Even otherwise as submitted by the learned President's

counsel they would be constructive trustees in terms of section

96 of the Trust Ordinance and as such they would be bound by

sections 11, 58 and 79 (a).

130

In terms of section11, the trustee is bound to fulfil the purpose of

the trust and to obey the directions of the author of the trust

given at the time of its creation. Section 58 confers the right on

the beneficiary to have the intention of the author of the trust

executed to the extent of the beneficiary's interest. It is laid down

by section 79 that a trust is extinguished when its purpose is

completely fulfilled.

Another important point of law raised by both parties in this

appeal pertains to the applicability of the provisions of the

Prescription Ordinance with regard to limitation of action. The

plaintiff takes up the position that he was totally unaware of the

precise nature of the trust. To quote the learned presidents

counsel the plaintiff was kept at bay by the non-disclosure on the

part of Adham and thereafter by the defendants.

It appears that the plaintiff had been also kept in the dark about

the nature of the trust for obvious reasons. As the plaintiff

indirectly suggested, it has been suppressed from the plaintiff

with an ulterior motive. In any event, it is irrational to hold that

prescription would begin to run against the plaintiff from the time

he qualified himself to hold the property free from any external

control, as he was unacquainted with the instrument of trust and

his rights and privileges flowing from the same, until he obtained

a copy of deed No 55.

The plaintiff has obtained a copy of the deed which created the

trust in 1994. The evidence of B.Fernando, a clerk attached to a

lawyer's office corroborates this position. This stand of the

plaintiff was not seriously contested in the course of the cross

examination by the defendants. The defendants countered this

with an unconvincing argument that the plaintiff should have

known the creation of the trust through his father or by himself,

ignoring the implied admission that the plaintiff was an 8-year-

old child when P3 was executed. From the above the safest

conclusion the district court ought to have reached was that the

action of the plaintiff had been instituted within the period of

limitation, even if it is to be conceded for purpose of argument

that the Prescription Ordinance with regard to limitation of suits

is applicable to the cause of action averred in the plaint.

131

The alleged prescriptive title of the defendants commences from

22 August 1979. The defendants had chosen to claim

prescriptive title to the subject matter from 22 August 1979 as

the demise of Adham had taken place on that day.

At this stage, it would be appropriate to make reference to one of

the earliest judgments, Danial Appuhamy Vs Aranolis 30 NLR

247 in which Fisher CJ. expounded the intricacies of the law

relating to the point of commencement of the prescriptive title,

when the beneficial interest remained in the claimant. In that

case, the plaintiff sought to establish a claim to a certain

property purchased in the name of the defendant conveyed to the

plaintiff on the ground that he had provided the purchase money.

It was held that the cause of action in such a case arise either

when the defendant definitely declined to do what is requested of

him or when it comes to the knowledge of the plaintiff that the

defendant has taken a definite step indicating that he regards

himself as the absolute owner of the property.

According to the material available before the learned district

judge, Adham and the defendants have clearly perpetrated a

fraud to keep the plaintiff away from the subject matter. The

attempt made by Adham to bequeath the subject matter by his

last will and the 2nd defendants endeavour to convert the

subject matter for his own use by filing the testamentary action

after 13 years, in my opinion constitute a perpetration of a

massive fraud.

On behalf of the plaintiff, it was submitted that the only definite

step taken by the defendants in respect of the property was the

filing of the application for probate, which was done only in 1993,

far from repudiating the plaintiffs claim recognized by P3.

In any event, both Adham and the defendants were aware of the

trust and by the efforts to pay the plaintiff off have perpetrated a

fraud on their part. Section 111 (1) of the Trust Ordinance

specifically provides that the provisions of the Prescription

Ordinance shall not bar any claim to trust property inter alia in

the following situation.

132

111 (1) (a) in the case of any claim by any beneficiary against the

trustee founded upon any fraud or fraudulent breach of trust to

which the trustee was a party or privy

111 (1) ( b) in the case of any claim to recover any trust property,

or the proceeds thereof still retained by the trustee, or previously

received by the trustee and converted to his use.

The Learned President's counsel has submitted that the

2ndrespondent's father Adham was aware of and acknowledged

the trust. He attempted to offer money to the plaintiff and

extinguish the plaintiff's right to the said property, and thereby

he attempted to commit a fraud on the plaintiff. In the

circumstances, section 111 of the Trust Ordinance is applicable

in my view and as such, the plaintiff’s action would not be barred

by section 111.

It is pertinent to note that the 2nd respondent has not relied upon

the possession of Adham to claim prescriptive title. This is

evident from the fact that, in the testamentary proceedings filed

by the 2ndrespondent, he had relied on P 3 (deed of trust) to

establish his title. This is also corroborated by the stand taken

up by the defendant respondents in their written submissions.

Section 111 (5) reads as follows.

111 (5) This section shall not apply to constructive trusts

excepting so far as such trusts are treated expressed trust by the

law of England.

In other words if a trust arise by construction of law is governed

by prescription. However if such constructive trust is treated as

“express trust” by law of England, then such a trust is not

affected by the statute relating to limitation of suits.

The learned counsel of the defendants therefore concedes that

Ahamed Adham being a trustee under an express trust cannot

raise the plea of prescription by reason of section 111 of the

Trust Ordinance. Since the 2nd defendant is neither an express

trustee nor a constructive trustee within the meaning of section

111 of the Trust Ordinance, according to the learned counsel a

plea of prescription defeat the maintainability of the action is

available.

133

The learned presidents counsel has submitted that even though

the 2nd defendant and the other defendants are no express

trustee's, they hold under constructive trust in terms of section

96 of the Trust Ordinance which provides that where a person

has possession of property but does not have the whole beneficial

interest to the same he must hold the property in trust. Even a

constructive trust would not be protected from the provision of

Prescription Ordinance where such trusts are treated as express

trusts by the law of England-section 111 (5) of the Trust

Ordinance.

In this context the judgement in the English case of Soar vs

Aswell 1893 2 Q. B 390 is of much importance to determine the

question as to whether the defendants could be regarded as

holding the property in question under an express trust.

The facts that led to the lawsuit in Soar vs Aswell (supra) are

somewhat similar to the facts of this case. In Soar vs Aswell a

trust fund was held by trustees under a will in trust for two

persons in equal shares for their respective lives and, after the

death of each, in trust as to his share for his children. The fund

was entrusted by the trustees to a employed by them as solicitor

to the trust, and was by him invested together with other monies

belonging to different trusts or an equitable mortgage by deposit

of title deeds, in his own name. The mortgage being paid off in

January 1879, the solicitor received the money so invested from

the mortgagor and distributed one moiety of it, the tenant for life

having died among his children, who by his death had become

absolutely entitled to the same. He did not account for the other

moiety to the trustees, but retained the same in his own hand.

On February 21, 1891 an action was brought by the surviving

trustee under the will against the personal representative of the

solicitor, who had died in November 1879 claiming an account of

the monies so retained by him. It was held that he must be

considered as having been in the position of an express trustee of

such money and therefore the lapse of time did not act as the bar

to the action. The basis of this decision was that the solicitor had

received the money in a fiduciary capacity as trustee for his

clients, the trustees; Kay LJ thought that the solicitor despite

being a stranger to the trust, had assumed to act and had acted

134

as a trustee and had received the trust money under breach of

trust in which he concurred.

The plaintiff’s claim in the instant case is also based on a claim

to recover possession of the trust property which was unlawfully

retained by the trustee and converted to his own use and the use

of the 2nd defendant by way of fraudulent breach of trust. The

fraud is of such a magnitude that the trustee and the 2nd

defendant along with the other defendants have misled a court of

law to believe that the entirety of premises No 47 is a part of the

estate of the testator and is free of any trust. The evidence led at

the trial establishes beyond reasonable doubt as to the fraud

committed by the 2nd defendant and the trustee concerned.

As was expressed in Soar vs Aswell the following type of person

are regarded as holding property under an express trust.

a. A trustee de son tort and/or a stranger who assume to act in an

expressed trust as if they were the duly appointed trustee.

b. A stranger to the trust who is privy to and participates in the

fraudulent breach of trust by the trustee

c. a stranger to the trust who receives the trust money knowing

them to be such and deals with them in a manner inconsistent

with the trust.

d. one who is in a fiduciary position and on the footing of such

position obtains possession of trust property.

In relation to the trust property claimed by the plaintiff in this

case, the defendants for a period of 13 years have intermeddled

with the estate of the deceased Adham and that of the trust

property and came to be identified as executors de son tort and

trustee de son tort. Besides that the defendants being strangers

to the express trust have assumed to act as trustees by

holding on to the trust property and holding out a promise to the

plaintiff to hand over the trust property, as referred to in P5, as if

they were trustees or have assumed to act as duly appointed

trustees.

The deceased Ahamed Adham had no rights to bequeath the

undivided ½ of the property referred to in Deed No 55, to which

he was holding on in flagrant violation of the instrument of trust.

135

By his last Will 1035 the testator having bequeathed the entirety

of premises bearing assessment No 47 has undeniably acted in

breach of the trust. The 2nd defendant being a stranger to the

trust by its endeavour to prove the last Will and to appropriate

the entirety of premises No 47 to him (including the ½ share

which is subject to trust) was undoubtedly was privy to and

participated in the fraudulent breach of trust.

Based on the evidence referred to above in situations

contemplated under (a) and (b) above the 2nddefendant

respondent and the other respondents, should be considered as

holding the trust property under an express trust. On account of

the reasons set out herein before the action of the plaintiff is not

barred by prescription and the learned trial judge has erred in

law in coming to the conclusion that the plaintiff is not entitle to

maintain the action to recover the trust property.

I have already stated that the defendants have admitted the trust.

The plaintiff has proved on a balance of probability that it was in

the year 1994 he became aware of the precise nature of the trust.

As referred to earlier even at the time when the trustee passed

away the purpose of the trust had not exhausted and therefore

had remained operative and extant.

Even though it may not be strictly relevant it is useful to refer to

the attitude of the defendants who denied the paternity of the

plaintiff, when there was ample evidence relating to his paternity

in P3 itself. The certificate of the plaintiff has been produced

marked as P1. In P1 the name of the mother of the plaintiff is

mentioned as Ummu Hamina and the father as Abdul Raheem. In

cage 7 of P1 the question as to whether the parents are married

has been answered in the affirmative. The statement made by the

author of the trust (deceased) in P3 as to the paternity of the

plaintiff, certificate of birth marked as P1 and the evidence of the

plaintiff give rise to the presumption of legitimacy of the plaintiff

under section 112 of the evidence Ordinance. The defendants

were not able to rebut that presumption.

It is surprising to observe as to how the defendants could say

that the father of the plaintiff was a subscribing witness to deed

136

No 55 and should have known the existence of the trust through

his father. This is in fact contradictory and speaks for itself as to

the object the defendants were trying to achieve, at any cost.

On the admissions made and the evidence led through the

plaintiff and his witness the plaintiff has established his case on

a balance of probability as opposed to the case presented on

behalf of the defendants. In the light of the overwhelming

evidence pointing to the existence of the trust and the

maintainability of the action, the irresistible conclusion the

learned district judge should have arrived at was to decide the

case in favour of the plaintiff and to dismiss the defendants

claim. When the plaintiff has unfolded such a strong case a

substantial part of it has been either plainly or by necessary

implication admitted by the defendant, it would be a travesty of

justice if the reliefs prayed for in the plaint are not given to the

plaintiff.

The judgment of the learned district Judge therefore is perverse.

His findings do not appear to be consistent with the law and the

facts revealed at the trial. The judgment is totally inconsistent

with the evidence adduced at the trial. Upon a comparative

analysis of the totality of the evidence, the only decision the

learned district Judge could have come to was to disbelieve the

2nd defendant and to accept the plaintiff’s version as being correct

and truthful.

Consequently, I set-aside the judgment and decree of the learned

district judge and answer the issues afresh in the following

manner.

1. Did Abdul Gaffoor Salha Umma by deed No 55 convey an undivided ½

share of the property referred to in the schedule to the plaint subject to

an express trust by reserving the beneficial interests of the said property

in favour of the plaintiff? Yes.

2. Have the conditions of the said trust being fulfilled during the lifetime of

Cassim Lebbe Marikkar Ahamed Adham? The condition relating to

handing over of possession as laid down in deed No.55 had not been

fulfilled.

3. Was the plaintiff unaware of the beneficial interests reserved in him as

referred to in paragraph 9 of the plaint until he obtained a copy of the

137

deed in the year 1994? Plaintiff was unaware and cannot be expected to

be aware.

4. Are the defendants who are the legal heirs of Cassim Lebbe Ahamed

Adaham in possession and control of the said trust property? Yes

5. Did the defendants and their predecessor unreasonably fail and neglect

to enforce the said trust? Yes

6. If the above issues are answered in favour of the plaintiff, is the plaintiff

entitled to relief as prayed for in the plaint? Yes. The plaintiff is entitled to

the reliefs prayed for in paragraphs (a) to (d) of the prayer to the plaint.

7. Is the plaintiff not a son of Abdul Rahuman? The plaintiff is a son of

Abdul

Rahuman.

8. Did Abdul Gaffoor Abdul Rahuman remain a bachelor until his death? No

9. Did Cassim Lebbe Marikkar Ahamed Adham depart this life on 22.8.1979

leaving the last will bearing No.1035 dated 18.5.1976 attested by

Rukmani M.Fernando, notary public of Colombo? Yes.

10. Was the said last will proved and the 2nddefendant issued with probate in

case

No.33139 T in respect of the last will 1035? As the probate and the order

relating to the proof of last will have not been produced at the trial issue

cannot be answered in the affirmative.

11. As pleaded in paragraph 9 of the answer by last will 1035 was the subject

matter of this action devised and bequeathed to the 2nd defendant?

Purported to have been bequeathed by the last will.

12. As pleaded in paragraph 10 of the answer by executor’s conveyance

No.15 attested by S.Safaya, notary public of Colombo did the 2nd

defendant become the owner of the subject matter? No

13. As pleaded in paragraphs 11 & 12 of the answer did the 2nd defendant

and his predecessors in title possess the subject matter of the action from

1942 and acquire a valid prescriptive title? No prescriptive title has been

acquired by the 2nddefendant to the subject matter.

14. Has the plaintiff failed to establish his rights if any, to the subject matter

in proceedings No.33139/T? Subject matter cannot form part of the

estate of the testator by reason of the trust created by deed No.55.

15. If so, is the defendant estopped from setting up any title to the subject

matter? No

16. In any event, is the cause of action of the plaintiff prescribed in law? No

17. As pleaded in paragraphs 15 & 16 of the answer by deed No.55 dated

5.11.1942, wasn’t there any trust created in favour of the plaintiff? No.

18. If the above issues 7-17 or any one of them are answered in favour of the

defendant, should the plaintiff’s action be dismissed? No

19. Is the 2nd defendant entitled to a declaration of title to the subject matter

in his favour? No

138

20. Are the defendants entitled to plead prescriptive title in respect of the

subject matter and to take up the position that the plaintiff’s action is

time barred, by reasons of the provisions contained in the Trust

Ordinance? Not entitled.

21. (a) Even if there is a creation of a trust by deed No.55 dated 5.11.1942

upon the plaintiff attaining the age of 21 years on 9.5.1955, has the trust

ceased to exist? No

(b) If the above issue is answered in the affirmative, is the plaintiff entitled to

an undivided half share of the land and premises referred to in the deed?

The plaintiff is entitled to an undivided half share as referred to in deed

No.55.

(c) If the above issue is answered in the affirmative, can the plaintiff have

and maintain this action? Action is maintainable.

For the foregoing reasons it is my candid opinion that the

defendants claim of prescription should be rejected and the

plaintiff who has been fraudulently kept at bay deserves to be

permitted to enjoy the benefit of the trust.

Subject to the re-determination of the issues as mentioned

hereinbefore, I proceed to reverse the judgment and decree of the

learned district judge and allow the appeal. Learned district judge

is directed to enter decree accordingly.

Sgd.Judge of the Court of Appeal

KLP/- 902 2000

In the court of appeal of the Democratic Socialist

Republic of Sri Lanka.

Case No. CA 902/2000 (F).

D.C. (Colombo). 359 Trust. Abdul Rahman Abdul Rafeek,

No 79/7, Hathbodhiya Road,

Dehiwala

139

Plaintiff-

Appellant

Vs

1. Siththy Marliya Adaham,

2. Fazal Mohamed Adham

3. Inul Iqram Adham

4. Honia Nazaria Adham

5. Fathima Firoz Adham

47, Thimbirigasyaya Road,

Colombo 5

Defendant- Respondents

A.W.A.Salam. J

Faiz Musthapha PC with Javed Mansoor and Faisza Musthapha

Markar for plaintiff-appellant and Farook Thahir for the

defendant-respondents.

Written Submissions tendered on: 11.12..2007


[1] 22 of 1871 as amended by 2 of 1889

[2] Paragraph 9 of the plaint

[3] Deed No 55

[4] paragraph 9 of the

plaint

[5] 1998 (2) SLR Page 16

140

Delay in filing revision

The interval between the pronouncement of the impugned order and the filing of the

revision application counts 150 days (5 months). The delay in filing the application for

revision has not been explained by the 1st defendant. Resultant position.

C.A. No. 886/2002 Revision

D.C. Gampaha No.32482/P.

Ranasinghe Arachchige Peter

1stDefendant-Appellant.

Vs.

1. Ranasinghe Arachchige Emalin Nona, 110/1,

Yatawatte Road, Biyagama,

Malwana.

Defendant-Respondent.

141


Counsel : Peter Jayasekera with Kosala Senadeera

for the 1stDefendant-Petitioner.

L.C. Seneviratne, P.C. Anurudhdha Darmaratne for the

Respondents.

Decided on: 02.06.2008.

A W Abdus Salam J.

This is an application for revision made by the 1st

defendantpetitioner (hereinafter referred to as the "1st

defenadant") to have the order of the learned district Judge

dated11-12-01 set aside. The background to the application

should briefly be made reference, in order to ascertain the

question that comes up for determination. The plaintiff-

respondent (hereinafter referred to as the "plaintiff") filed action

to partition the land called "Kahatagahawatta”, in extent 6 Acres

1 Rood 14.45 perches as depicted in preliminary plan No 575[1]

dated 10-12-90 and made by H.H.Donald Licensed Surveyor and

Commissioner of

Court. After trial the learned district Judge entered the

judgement and interlocutory decree to partition the corpus among

the parties who declared entitled to undivided shares.

Subsequently, commission was issued to K.G Hubert Perera,

licensed surveyor and commissioner for the preparation of the

scheme of partition. Accordingly K.G.Hubert Perera submitted his

scheme of partition which is depicted in plan No 6553[2] dated

1009-93. The first defendant opposed the scheme of partition of

the commissioner and submitted an alternative scheme of

partition bearing No 690[3] dated 19-01-01, drawn by Merill

Perera, licensed surveyor and commissioner of court. Even

though the 1st defendant relied upon a second alternative scheme

of partition bearing No. 1265[4] Made by L.K.C.Nalani, licensed

surveyor, at the inquiry she admitted that the second alternative

scheme of partition is not in keeping with the interlocutory decree

and the defendant only on P13 to establish her case.

The learned district Judge after inquiry decided to confirm the

scheme of partition of the Commissioner and entered final decree

accordingly. In that process the court rejected the alternative

scheme of partition P13 relied upon by the

142

1st defendant. Subsequently the 1st defendant filed a notice of

appeal (P1) on 21st December 2001 intending to prefer a final

appeal against the order of the learned district Judge confirming

the scheme of partition of the Commissioner without any

alterations. For obvious reasons the first defendant has not

proceeded with the appeal by filing a petition of appeal within the

specified period of time. It is quite significant to observe that the

1st defendant has not even opted as is permissible to prefer an

appeal against the said order with the leave of this Court first had

and obtained. Notwithstanding such failure, she has filed the

instant application with a view to have the said order of the

learned district Judge revised and set-aside.

The order of the learned district Judge as stated above has been

made on 21-12-01 and the application to have the said order

revised was made on 09-05-02. The interval between the

pronouncement of the impugned order and the filing of the

revision application counts 150 days (5 months) the delay in

filing the application for revision has not been explained by the

1st defendant.

In the case of Rustom vs Hapangama & Company 1978/79/80

SLR volume 1 page – 352, It was clearly laid down that the

reversionary powers of the court of appeal will not be exercised if

there is an alternative remedy available , unless special

circumstances are urged necessitating the indulgence of court to

exercise such reversionary powers.

The first defendant has not availed of her right to invoke the

jurisdiction of this court by way of an interlocutory appeal to

challenge the order of the learned district judge with the leave of

this Court first had and obtained.

In any event even upon a consideration of the scheme of partition

prepared by the Commissioner and the alternative scheme

suggested by the 1st defendant, I am not quite impressed with

the argument advanced on behalf of the 1st defendant that the

scheme of partition confirmed by the learned district judge is

unreasonable.

According to the learned district judge based upon the evidence of

the Commissioner the plaintiff is entitled to ¾ of the road

frontage. In the scheme of partition the plaintiff has been

apportioned a substantive length of road frontage whilst the

143

plaintiff has been given a negligible length of road frontage facing

Shanthi Mawatha.

Even as regards the “well” marked as improvement No.

14, direction had been given by the learned district judge in the

interlocutory decree to allot it common to the plaintiff and the

1st defendant to enable them to have the common use of it. This

direction of the learned district judge has been carried out by the

Commissioner to the very letter and as a result, it is now up to

the plaintiff to carry out the necessary structural alteration to

ensure that she can continues to use the well.

It is trite law that the Commissioner’s scheme of partition should

not be lightly rejected. In the event of a party to a partition

action not being satisfied with the scheme proposed by the

Commissioner, the burden is always on the party who alleges the

Commissioner’s scheme as being unreasonable, to establish such

a position. In the instant matter the 1stdefendant has failed to

establish that the scheme of partition of the Commissioner is

unreasonable or unjustifiable.

For the above reasons it is my opinion that the 1st defendant is

not entitled to have the order of the learned District Judge set

aside by way of revision. Consequently, the application of the 1st

defendant should necessarily fail. Hence, the revision application

filed by the 1stdefendant stands dismissed subject to costs.

Sgd./


144

THE LAND SURVEYED AT THE PRELIMINARY SURVEY IS CONSISTENT WITH THE CORPUS DISCLOSED IN

THE PLAINT-IDENTITY OF THE CORPUS SUCCESSFULLY ESTABLISHED.

BASELESS GROUNDS OF APPEAL-RESULTING POSITION.

THE APPELLANTS HAVE ALSO COMPLAINED THAT THE

17TH DEFENDANT-RESPONDENT WHO GAVE EVIDENCE

ON BEHALF OF THE PLAINTIFF-RESPONDENT WAS NOT IN

POSSESSION OF THE CORPUS AND THAT THE QUESTIONS

PUT TO HER IN EVIDENCE IN CHIEF, WERE ALL LEADING

QUESTIONS WHICH SUGGESTED THE ANSWERS. AS THE

APPELLANTS WERE REPRESENTED, WHEN THE 17TH

DEFENDANT-RESPONDENT GAVE EVIDENCE AND HAD

FAILED TO OBJECT TO LEADING QUESTIONS BEING PUT

TO THE WITNESS, THEY CANNOT BE NOW HEARD TO

COMPLAIN ON THAT MATTER.

CA 579/1995 DC Panadura 18054/P

Mestiyage Don Haramanis Gunathilaka Vs Thirimanne Hettige Don Sirilina Jayasekara and several others Defendant-Respondent

Before: A W A Salam J

145

COUNSEL: Mrs S Raju for the the 31st to 33rd Defendant-Appellants, N R M Daluwatta PC with Rohan Sahabandu

for the Substituted-Plaintiff-Respondent Argued on: 01.11.2007 Decided on: 26.10.2009

A W Abdus Salam, J.

This appeal arises from the judgment and interlocutory decree entered in the above partition

action. The deceased plaintiff instituted action for the partition of the land called portion of

Sudanwatte alias Pelawatte. He described the corpus as a portion of a land separated off

“Sudanwatte” which is also referred to as “Pelawatta”. The boundaries to the corpus as set out

in the plaint are Kahatagahawatte and Delgahawatte (ON THE NORTH) a portion of the

same land (ON THE EAST) Galaudawatte and Cart Road (ON THE SOUTH) and

Munamalgahawatte (ON THE WEST) in extent about 2 Roods (80 Perches) and registered at

the land registry of Panadura in B409/209.

The plaint also referred to the said land in a different way as Sudanwatte alias portion of

Pelawatte being bounded on the North and East by portion of the same land, on the South by

Galaudawatte and Cart Road, on the West by Munamalgahawatte, containing in extent of

about 2 Roods (80 Perches) and registered under title B143/334.

Quite unexpectedly, at the commencement of the abortive trial, the parties admitted the

accuracy of the corpus, as depicted in the preliminary Plan No. 1206 dated 20 January 1983,

made by B. L. D. Fernando, Licensed Surveyor and Commissioner of Court. However, the

contesting defendants namely the 31st, 32nd and 33rd defendant-appellants filed an amended

statement of claim after the commencement of the trial and thereafter the trial which

proceeded de novo before the succeeding judge and no admission was recorded as to the

identity of the corpus and therefore the plaintiff had to raise a point of contest on the identity

of the corpus. At the conclusion of the trial, the learned district judge answered this point of

contest in favour of the plaintiff. One of the grounds to have the interlocutory decree set

aside, as relied upon by the appellants is alleged failure on the part of the plaintiff to establish

the identity of the corpus. The appellants contend that the severe confusion that had resulted

in relation to the identity of the corpus calls for a dismissal of the action.

The plaintiff described the corpus to be partitioned in the schedule to the plaint twice. In the

first part, the land to be partitioned has been referred to as bounded on the East by a portion

of the same land. The southern boundary of the corpus described at both places in the

schedule as Galaudawatte and the Cart Road. The Western boundary of both lands has been

described as Munamalgahawatte. Thus only the northern boundary of the two lands did not

tally and in that the first land carried Kahatagahawatte and Delgahawatte as the northern

boundary whilst the second land carried the northern boundary as a portion of the same land.

The learned President’s counsel has contended that three out of four boundaries of both lands

referred to in the schedule to the plaint being the same, the appellants cannot be heard to say

that the land surveyed for purpose of the partition action is not what has been referred to in

the plaint.

146

The contesting defendants (appellants) were quite critical of the evidence given by the

surveyor, in that he was not able to give a satisfactory account of the northern boundary.

Having examined the evidence placed by both parties and upon a perusal of the documents

submitted, on a balance of probabilities, the learned trial judge was compelled to reject the

argument relating to the non-identity of the corpus. Hence, it is my view that the learned

district judge cannot be faulted for answering the point of contest relating to the identity of

the land in favour of the plaintiff.

The next question that arises for consideration is whether the prescriptive claim set up by the

appellants to the entire land should have been upheld. The appellants in their original

statement of claim took up the position that on 3 deeds, a person by the name Mestiyage

Hendrick Gunathilaka became the owner of the corpus and upon his demise the appellants

became entitled to the property. However, in the amended statement of claim the above line

of devolution of title was abandoned and the defendants took up the position that as stated in

paragraph 20 of the plaint, one Simon Perera acquired rights in the property on deed No’s 72

of 9.10. 1932 and 20258 of 28.10.1933 (produced at the trial marked as 33D8) and he

transferred his rights to Hendrik Gunathilaka, upon whose death the contesting defendants

inherited their rights and that they held and possessed the property on the said rights for a

period of over 50 years and thereby acquired a prescriptive title.

The learned President's Counsel of the substituted-plaintiff-respondent in his written

submissions has criticized the position taken up by the appellants, in that they have failed to

disclose the source from which Simon Perera acquired his rights. Further, he contended that

Hendrik Gunathilaka had married to Dilo Nona, a daughter of Seneris and Ensohamy.

Seneris is referred to in the plaint as the son of Liyanachchi Nona in paragraph 2 of the plaint.

In terms of the plaint Liyanachchi Nona is a daughter of Jamis, who is the original owner of

the corpus and Ensohamy who got rights on two deeds mentioned in paragraph 16 and 17 of

the plaint, which rights also devolved on Delohamy and her brothers and sisters.

Consequently, Delohamy admittedly being a co-owner of the corpus, the position of the

contesting defendants that they have acquired a valid prescriptive title to the corpus on the

basis of the rights of their father is untenable, since there had been no proof of ouster by an

overt act.

It is contended on behalf of the appellants that the plaintiff in this case has attempted to

partition the amalgamation of two lands. The said two lands according to the appellants are

land No 1 and 4 referred to in the schedule to deed No 672 which has been produced by the

plaintiff as P8 and by the contesting defendants as 33D9.

For purpose of convenience the boundaries and the description of the two lands as appearing

in deed No 672 is reproduced below.

Land No 1

Name of the land: Sudanwatte alias Pelawatte Boundaries:

North and East- portion of the same land

South: Portion of the same land and road

West: Munamalgahawatte

Extent: 1/2 an acre or 80 perches

147

Land No 4

Name of the land: Nothern portion of one half of Sudanwatte

North: Ketakalagagawatte

East: Portion of Sudanwatte

South: Portion of the same land

West: Munamalgahawatte

Extent: 1 Rood and 20 perches

The position taken up by the appellants is that they were in possession of both lands No 1 and

No 4 for well over 60 years without any interruptions and thereby acquired a valid

prescriptive title for both lands.

The plaintiff maintains that the land sought to be partitioned is Sudanwatte alias Pelawatte

which is the land described under No 1 in deed No 672. Quite significantly the plaintiff too

relies on the same deed in proof of the devolution of title set out in the plaint. However, the

land No 1 described in deed No 672 is in extent of only 80 perches or one half of an acre. On

the other hand if the plaintiff has amalgamated both land No’s 1 and No 4 in deed No 672, the

extent of both lands would be 80 perches + 1 Rood 20 perches= 140 perches. According to

the preliminary plan the total extent of land surveyed is 1Rood 33.12 perches.

According to the documents produced by the plaintiff in extent of the land sought to be

partitioned is given as stated below.

1. Deed No. 4770- P1= 80 Perches







8. Deed No. 0672- P8= 80 Perches (Land No 1)








According to the documents produced by the appellants at the trial, the extent of the land

dealt in those deeds is set out as follows...

1. Deed No. 20258- 33D8= 60 Perches

2. Deed No. 00672- 33D9= 80 Perches

It would be thus seen that if both lands are amalgamated for purpose of the partition

action as claimed by the appellants, the extent of the corpus should be 140 perches

148

and if the deeds relied upon by the plaintiff P1 to P14 (P12, 13 and 14 being pending

Partition deeds) the extent of the corpus would be 80 perches. Noticeably, the extent

surveyed for the purpose of the action as borne out by preliminary plan No 1206 is

1Rood and 33.12 perches which is equivalent to 73.12 perches. According to the

survey the land he has surveyed is consistent with the schedule given in the plaint. In

the circumstances, the findings of the learned district judge that the land depicted in

the preliminary plan constitutes the corpus appear to be the more probable version.

The appellants have also complained that the 17th defendant-respondent who gave

evidence on behalf of the plaintiff-respondent was not in possession of the corpus and

that the questions put to her in evidence in chief, were all leading questions which

suggested the answers. As the appellants were represented, when the 17th

defendantrespondent gave evidence and had failed to object to leading questions

being put to the

witness, they cannot be now heard to complain on that matter.

The appellants have submitted that the 17th defendant was not in possession of the

subject matter and that she had failed to identify the corpus with its actual meets and

bounds. In the light of the evidence given by the surveyor and the other material

available in the case, learned district judge has come to the conclusion that in all

probabilities the land depicted in the preliminary plan is the subject matter referred to

in the plaint. The findings of the learned district judge, with regard to the identity of

the corpus is mainly based on the evidence given by the witnesses including that of

the surveyor who carried out the commission to prepare the preliminary plan. As the

findings therefore involve the learned judge's observations with regard to the

demeanour and deportment of the witnesses, I do not think that it is appropriate to

interfere with the findings of the learned district judge on this matter.

The appellants have submitted that the learned district judge has failed to address his

mind towards the proper identification of the land in question by names and

boundaries. Since the plaintiff had failed to prove the case, counsel of the appellant

submits that the more proper action to be adopted would have been to dismiss the

case rather than to give judgment to partition the land on weak and vague evidence.

Upon a consideration of all the matters raised on behalf of the appellants, I do not

consider the grounds urged by the appellants merit any favourable consideration to

reverse the judgment and interlocutory decree or set aside the same and direct a fresh

trial. As such this court has no alternative but to dismiss the appeal subject to costs.


149

SCHEME OF PARTITION-COMMISSIONERS PLAN-APPROACH TO BE ADOPTED BY THE TRIAL

JUDGE

C.A. No. 454/96(F)

D.C. Balapitiya Case No. 1484/P

Malgama Kankanamge

Senarath Jayasinghe,

Jayabima,

Poddiwela,

Mattaka.

10th Defendant-Appellant

Vs

Malgama Kankanamge

Gunawathie Karunaratne,

Poddiwela,

Mattaka.

Plaintiff-Respondent

2) Malgama

Kankanamge

Saranelis Gunasena,

3) Malgama

Kankanamge

Sopinona

150

4) Malgama

Kankanamge Siripala

Piyasena

5) Malgama

Kankanamge

Nandawathie

6) Malgama

Kankanamge Jayasiri

Jayasinghe

7) Malgama

Kankanamge Piyadasa

Jayasinghe

8) Malgama

Kankanamge

Gunadasa Jayasinghe

9) Malgama

Kankanamge

Jayawathie Jayasinghe

10) Malgama

Kankanamge

Senadeera Jayasinghe

11) Malgama

Kankanamge

Hemawathie Jayasinghe

All of Poddiwela, Mattaka.

12) Galle Development

Council 13) Poddiwela

Hewage Sumathipala

14) Poddiwela Hewage

Hemasiri 15)

Poddiwela Hewage

Somawathie

16) Mattaka Gamage Gunadasa

17) Mahagama Kankanamge

Premaratne

18) Poddiwela Hewage

Davith Singho

19) Mattaka Kankanamge

Hinninona

All of Poddiwela, Mattaka


151

Before : A.W.A. SALAM, J.

unsel : S.A.D.S. Suraweera for the 10th Defendant-Appellant and Bimal Rajapakse

with M.A. Ravindra Anawaratne for the Plaintiff-Respondent.

Written Submissions tendered on: 22.02.2011.


A.W.A. SALAM, J.

he 10th defendant-appellant seeks to set aside the order of the learned

District Judge dated 24.04.1996 confirming the scheme of partition

submitted by the Commissioner, viz. plan No. 4092 dated 03.09.1993,

of Garvin de Silva, Licenced Surveyor and rejecting the alternative

scheme submitted through Rabin Chandrasiri, Licenced Surveyor.

Among other grounds, he contends that the scheme submitted by the

Commissioner is unreasonable in that he has totally wiped out the foot path

marked as "C" in the preliminary plan. The trial in this matter has been

taken up without the parties raising any points of contest. Therefore the

question as to whether the 10thdefendant-appellant is entitled to use the

path in question did not arise for consideration at the trial. As a matter of

fact the 10thdefendant-appellant had claimed this path in order to gain

access to the property on the boundary of the corpus. No evidence had been

led at the trial as to the alleged existence of the path which the 10th

defendant-appellant claimed as having acquired the right to use. As such,

no directions have been given in the interlocutory decree to the

Commissioner to make provisions for the said path.

The 10th defendant-appellant in his endeavour to depict the path that he

claimed, produced an alternative scheme of partition which has been

properly considered by the District Judge. It is established principle of law

that the plan prepared by the Commissioner should not be rejected unless

it’s unreasonableness is positively proved.

T

152

In this matter having considered the evidence led by both parties at the

scheme inquiry, the learned District Judge has arrived at the irresistible

conclusion that the scheme prepared by the Commissioner deserves to be

confirmed. I see no reason to interfere with this judgment. Hence this

appeal should stand dismissed subject to costs.


NT/-

SCHEME OF PARTITION-COMMISSIONERS PLAN-APPROACH TO BE ADOPTED BY THE TRIAL

JUDGE

C.A. No. 454/96(F)

D.C. Balapitiya Case No. 1484/P

Malgama Kankanamge


Vs

Malgama Kankanamge

Gunawathie Karunaratne,

153

Before : A.W.A. SALAM, J.

Counsel : S.A.D.S. Suraweera for the 10th Defendant-Appellant and

Bimal Rajapakse with M.A. Ravindra Anawaratne for the

PlaintiffRespondent.

Written Submissions tendered on: 22.02.2011.


A.W.A. SALAM, J.

The 10th defendant-appellant seeks to set aside the order of the learned

District Judge dated 24.04.1996 confirming the scheme of partition

submitted by the Commissioner, viz. plan No. 4092 dated 03.09.1993, of

Garvin de Silva, Licenced Surveyor and rejecting the alternative scheme

submitted through Rabin Chandrasiri, Licenced Surveyor.

Among other grounds, he contends that the scheme submitted by the

Commissioner is unreasonable in that he has totally wiped out the foot path

marked as "C" in the preliminary plan. The trial in this matter has been

taken up without the parties raising any points of contest. Therefore the

question as to whether the 10thdefendant-appellant is entitled to use the

path in question did not arise for consideration at the trial. As a matter of

fact the 10thdefendant-appellant had claimed this path in order to gain

access to the property on the boundary of the corpus. No evidence had been

led at the trial as to the alleged existence of the path which the 10th

defendant-appellant claimed as having acquired the right to use. As such,

no directions have been given in the interlocutory decree to the

Commissioner to make provisions for the said path.

The 10th defendant-appellant in his endeavour to depict the path that he

claimed, produced an alternative scheme of partition which has been

properly considered by the District Judge. It is established principle of law

that the plan prepared by the Commissioner should not be rejected unless

it’s unreasonableness is positively proved.

154

In this matter having considered the evidence led by both parties at the

scheme inquiry, the learned District Judge has arrived at the irresistible

conclusion that the scheme prepared by the Commissioner deserves to be

confirmed. I see no reason to interfere with this judgment. Hence this

appeal should stand dismissed subject to costs.


NT/-

REVISION - THE EXTENT TO WHICH THE CONDUCT

OF PARTIES IS RELEVANT




page 12).



absence of any proof that a fundamental rule of procedure, as set

out in the Partition Act has been violated by the learned district

judge in confirming the scheme of partition, the question of

155

intervention by this court in the exercise of its revisionary powers

does not arise.

Sellappulige Mary Anishiya Edith Rosa,

Vs

Merannage Don Nimali Calistus,

Before: A W A Salam,J

Counsel: Dr Sunil F A Cooray for plaintiff-petitioner and M H B

Morais for the 7th defendant-respondent


A W Abdus Salam,J.

The plaintiff-petitioner has filed the present application in

revision to have the order dated 23 April 2002 confirming the

scheme of partition be quashed and set aside, in the exercise of

the revisionary jurisdiction and/or powers of restitution. The

factual background relating to this revision application begins

with the partition action instituted by the plaintiff-petitioner to

partition the corpus among the parties. At the trial no point of

contests were raised as the parties entered into a settlement.

The terms of settlement were spoken to by the

plaintiffpetitioner in the course of her evidence. Accordingly,

judgment was entered to partition the corpus in terms of the

settlement as directed by the interlocutory decree.

Later, in executing the commission issued, the Commissioner

drew up his final scheme of partition bearing No. 52 dated

12.2.2002, after several opportunities granted to consider the

CA 658/2003(Revision)

DC Negambo 2562/P

156

same, the learned district judge on 23.4.2002 confirmed the

scheme of partition bearing No 1830 when the parties

jointlymoved that it be confirmed.

The application of the petitioner in this matter is mainly based

on the ground of an alleged mistake resulting from inattention

on the part of the registered attorney of the plaintiff-petitioner.

As has been unfolded in the petition, the petitioner maintains

that her registered Attorney at Law directed his clerk to

examine the record and make a copy of the final plan and

report which the latter is said to have carried out. The copy of

the scheme of partition thus made by the clerk is attached to

the petition marked as F. In other words the contention is that

her registered Attorney at Law was misled by the clerk into the

belief that it has been prepared by the Commissioner strictly in

accordance with the direction given in the interlocutory decree.

As the copy prepared by the clerk had been negligently drawn

up representing a different picture than what had originally

been suggested by the Commissioner by his final scheme of

partition that was filed of record, the plaintiff-petitioner moves

to have the impugned order confirming the scheme of partition

set aside.

The main grievance of the plaintiff-petitioner is that in terms of

the judgment and interlocutory decree the common boundary

between the two blocks that were to be allotted to the

plaintiffpetitioner and the 7th defendant-respondent should

have been the line obtained by extending to the east of the

drain found at the northern edge of the apron of the well found

at the SouthWest corner of lot 1, and accordingly the well, it's

apron and drain should have fallen within the block of land to

be allotted to the plaintiff-petitioner.

In terms of section 36A of the Partition Act, an order confirming

the scheme of partition proposed by the surveyor, with or

without modification is appealable with the leave of the court of

157

appeal first had and obtained. The plaintiff-petitioner has

admittedly not invoked the provisions of section 36A of the

Partition Act.

On the contrary, she has invoked the revisionary jurisdiction of

this court but without assigning any exceptional circumstances,

acceptable to Court. The circumstances relied upon by the

plaintiff-petitioner to invoke the revisionary jurisdiction, is

based purely on the negligence of the registered Attorney-at-

Law of the plaintiff-petitioner and that of the clerk attached to

his office. As has been submitted by the learned counsel for the

7th defendant-respondent no application for revision can be

entertained by a Court if it flows from an act of negligence on

the part of a professional or his agent.




page 12).



absence of any proof that a fundamental rule of procedure, as

set out in the Partition Act has been violated by the learned

district judge in confirming the scheme of partition, the

question of intervention by this court in the exercise of its

revisionary powers does not arise.

Besides, on the face of the application itself, there has been an

inordinate delay on the part of the plaintiff-petitioner to invoke

the revisionary jurisdiction. In terms of the final decree entered

in the case the scheme of partition proposed by the surveyor

has been confirmed on 23 April 2002. This revision application

has been filed on 10 April 2003. As such the plaintiff-petitioner

is clearly guilty of unaccounted laches.

158

For the foregoing reasons, in my view, the revision application

and the application for the exercise of the powers of restitution

are unable to be maintained and should necessarily suffer such

consequences which are adverse to the interest of the

petitioner. Hence, the petitioner’s applications are dismissed.



AKN/-

RESTITUTIO INTERGRUM- NOT AVAILABLE TO A PERSON WHO IS NOT A PARTY TO A CASE

The remedy of restitutio in integrum can only be availed of

by one who is actually a party to the contract or legal

proceeding in respect of which restitution is desired"-

159

PER WIALACHNDRA, J

Abdus Salãm, J.

The petitioner has filed the present application in revision to

have the trial proceedings in partition action No 12578/P in

the district Court of Kandy and the judgment and interlocutory

decree entered in the case set aside and to obtain an order of

court to have the petitioner added as a party defendant in the

action. He also seeks an order from this court for a reasonable

opportunity to file a statement of claim and to take other steps

to contest the partition action.

When the matter was taken up for argument on 30 January

2009, the learned president's counsel of the substituted

plaintiff-respondent raised a preliminary objection with regard

to the purported rights of the petitioner to have and maintain

the present is application for revision and/or restitio in

intergrum, inasmuch as the petitioner had no locus standi to

maintain the application as he had no rights in the corpus at

the time or prior to the entering of the judgment and


The plaintiff-respondent instituted the partition action to have

the corpus partitioned between him and the 1st

defendantrespondent in the proportion of 2/3 and 1/3. The 2nd

defendantrespondent has been made a party to the partition

action as she was attempting to enter the corpus without any

manner of title. The 1st and the 2nd defendants filed a joint

statement of claim and prayed inter alia that they be given an

equitable portion of the subject matter together with the

buildings and Plantations standing thereon.

160

At the commencement of the trial the parties informed the

learned district Judge that there was no contest with regard to

the identity of the corpus and that they were agreed to have

the land depicted in the unnumbered plan dated 8th September

1911 shown by way of superimposition on the preliminary

plan No 590 dated 21st April 1992 marked as X be treated as

the subject matter of the partition action. Pursuant to the said

agreement, the plaintiff testified as to the devolution of title in

as averred in the plaint.

At the conclusion of the trial, the learned district Judge

delivered his judgment accepting land shown by the of

superimposition in red lines as the subject matter of the

partition action and directed that the corpus be partitioned

between the plaintiff-respondent and the 1st

defendantrespondent in the proportion of shares, referred to by

the plaintiff-respondent in his evidence. The petitioner in his

petition has attempted to make out that the plaintiff had not

disclosed deed No 9747 as being a material deed with regard

to the devotion of title, even though by deed No 593 dated 3

September 1991 (pending partition deed) the plaintiff has

purchased from the 1st defendant and his brother somadasa

the right title and interest they will be declared entitled to buy

the final decree to be entered in the partition action in

question. The petitioner states is that in deed No 593, the

vendors have recited title from the No 9747 dated 12 October

1916 and therefore cannot be unaware of the said deed recited

as being the source through which the vendors in deed No 593

have acquired title.

161

The position of the substituted plaintiff-respondent is that

deed

No 593 deals with two lands and on a reading of the schedule

to the deed it is quite clear that the 2nd land described in the

schedule to the said deed is the subject matter of the partition

action and the first land has no relevance whatsoever to the

corpus. In other words the substituted plaintiff-respondent

maintains that he has acquired title to 2nd land dealt in deed

No 593, by purchasing the right title and interest that would be

allotted to the 2nd named vendor Samarasingha.

The substituted plaintiff respondent has submitted that the

deeds marked as C1, C2 and C3 referred to in paragraphs 17

and 18 of the petition were not pleaded in the joint amended

statement of claim of the 1st and 2nd defendants and therefore

the relevance of the said deed was not a matter that was

required to be considered in the lower court and the petitioner

is now attempting to set out a false claim to the land and delay

the conclusion of the partition action.

As a matter of fact the 1st and the 2nd defendants in their

amended statement of claim dated 4.9.1995 filed in the district

court took up the position that Abraham Appu was entitled to

lot B described schedule to the said amended statement of

claim by virtue of the final decree entered in partition case No

25071 D.C Kandy and decree entered in the court of request

of Gampola in action No. 116.In terms of the said amended

statement of claim the rights of Abraham has finally devolved

on Bambarende Don Kalyanawathie Wanigaratne (2nd

defendant-respondent), -do- Gunawathie, -do- Francis, -do-

Arthur and -do- Badra. By way of relief the 1st and the 2nd

162

defendant-respondents have sought that they be given an

equitable portion of the land.

By paragraph21of the petition the petitioner has accepted the

devolution of title of Abraham up to Podihamine whom the

petitioner says became the sole owner of the property on deed

No.2639 dated 9th August 1949 mentioned in their amended

statement of claim filed before the learned district judge. Even

though in the amended statement of claim the 1st and the 2nd

defendants had stated that the rights of Podihamine devolved

on the collaterals namely, Ema Nona Gunawardena and

Ariyadasa Gunawardena, the petitioner is now trying to state

by paragraph 24 of the petition that the said Podihamine died

on 1.10.1984 leaving and administrable estate and in fact was

administered in D.C.Kandy case No.3236/T and one

Helanhamy was granted with the letters of administration and

she (Helanhamy) thereafter by deed No.252 dated 3.5.1994

has transferred the corpus to D.A.Kusumalatha Malani who is

a sister of the petitioner. In the same breath the petitioner has

attempted to say that the said Kusumalatha Malani by deed

No.13805 dated 24.9.1998 attested by G.Premaratne N.P. has

transferred the rights in the corpus to the petitioner and

accordingly the petitioner is the sole owner of the corpus.

A salient defect in the petitioner's case appears to be the by

paragraph 21 of the petition he has accepted the devolution of

title of Abraham as set out in the joint statement of claim of

the 1st and 2nd defendants up to the point they say Podihamy

became the sole owner of the subject matter on deed No 2639.

By the averment in paragraph 21 of the petition, the petitioner

is now trying to further espouse the cause of the 1st and 2nd

defendants despite the fact that they were parties in the

163

partition action and they failed to challenge the judgment

entered in the partition action.

The judgment in the partition action has been entered on 12

March 1997. According to the petitioner the rights of

Podihamy had devolved on Helanahamine and the latter had

transferred it to the sister of the petitioner on deed No 252 in

the year 1994.

More significantly the petitioner is alleged to have acquired

title from his sister on deed No 13805 on 24 September 1998.

According to the Journal entries produced in this application

the partition action has been instituted on 23 August 1990.

Accordingly, it is crystal clear that the petitioner has based its

title on a executed in 1998, namely almost 8 years after the

institution of the partition action and 1 year and 6 months

after the entering of the judgment. Admittedly the petitioner

was not a party to the partition action at the time when the

interlocutory decree was entered. Therefore it reveals that the

petitioner had no rights to the property at the time the

interlocutory decree was entered. As the petitioner was not a

party to the partition action as at the date of the interlocutory

decree, as has been submitted by the president's counsel the

petitioner cannot be considered as a party aggrieved by the

interlocutory decree, as no decision has been made against

him in the partition action. This undoubtedly disentitles him to

contest the interlocutory decree. In this respect the judgment

of this court in case No CA 329/02 (Don Saranadasa

Ranasingha Vs Samanthi Sulochana Gunasekera) applies to

this case, being a decision made on almost identical facts to

this application. In the said judgment citing Perera, J in the

case of Perera Vs Wijewikrama 15 NLR 411, Justice

Wimalachandra reiterated the following passage of Perera ,J.

164

"I am of the opinion that the remedy of restitutio in integrum

can only be availed of by one who is actually a party to the

contract or legal proceeding in respect of which restitution is

desired" (page 413).

The Learned President's Counsel has submitted that special

leave sought to challenge the decision in Don Saranadasa

Ranasingha Vs Samanthi Sulochana Gunasekera has been

refused by the Supreme Court in application No SC (Spl) LA

161/06 by SC minutes dated 23 May 2007.

For the foregoing reasons, I am of the view that the

preliminary objection raised against the maintainability of the

revision application should succeed. Hence, the application

made in revision by the petitioner stands dismissed subject to

costs.

Sgd.


165

RESTITUTIO IN INTERGRUM- LOCUS OF THE PETITINER-PETITIONER HAD NO RIGHTS IN THE

CORPUS

The petitioner is alleged to have acquired title from his sister on deed No

13805 on 24 September 1998. According to the Journal entries produced in

this application the partition action has been instituted on 23 August

1990. Accordingly, it is crystal clear that the petitioner has based its

title on a executed in 1998, namely almost 8 years after the institution of

the

Application for restitutio in intergrum. Locus of the petitioner to

maintain- partition action and 1 year and 6 months after the

entering of the judgment. Admittedly the petitioner was not a

party to the partition action at the time when the

interlocutory decree was entered. Therefore it reveals that

the petitioner had no rights to the property at the time the

interlocutory decree was entered. As the petitioner was not a

party to the partition action as at the date of the

interlocutory decree, as has been submitted by the president's

counsel the petitioner cannot be considered as a party

aggrieved by the interlocutory decree, as no decision has been

made against him in the partition action. This undoubtedly

disentitles him to contest the interlocutory decree.

Abdus Salãm, J.

The petitioner has filed the present application in revision to have the

trial proceedings in partition action No 12578/P in the district Court of

Kandy and the judgment and interlocutory decree entered in the case set

aside and to obtain an order of court to have the petitioner added as a

party defendant in the action. He also seeks an order from this court for a

reasonable opportunity to file a statement of claim and to take other steps

to contest the partition action.

When the matter was taken up for argument on 30 January 2009, the

learned president's counsel of the substituted plaintiff-respondent raised a

preliminary objection with regard to the purported rights of the petitioner

166

to have and maintain the present is application for revision and/or restitio

in intergrum, inasmuch as the petitioner had no locus standi to maintain

the application as he had no rights in the corpus at the time or prior to

the entering of the judgment and interlocutory decree.

The plaintiff-respondent instituted the partition action to have the corpus

partitioned between him and the 1st defendant-respondent in the

proportion of 2/3 and 1/3. The 2nd defendant-respondent has been made

a party to the partition action as she was attempting to enter the corpus

without any manner of title. The 1st and the 2nd defendants filed a joint

statement of claim and prayed inter alia that they be given an equitable

portion of the subject matter together with the buildings and Plantations

standing thereon.

At the commencement of the trial the parties informed the learned district

Judge that there was no contest with regard to the identity of the corpus

and that they were agreed to have the land depicted in the unnumbered

plan dated 8th September 1911 shown by way of superimposition on the

preliminary plan No 590 dated 21st April 1992 marked as X be treated as

the subject matter of the partition action. Pursuant to the said agreement,

the plaintiff testified as to the devolution of title in as averred in the

plaint.

At the conclusion of the trial, the learned district Judge delivered his

judgment accepting land shown by the of superimposition in red lines as

the subject matter of the partition action and directed that the corpus be

partitioned between the plaintiff-respondent and the 1st

defendantrespondent in the proportion of shares, referred to by the

plaintiffrespondent in his evidence. The petitioner in his petition has

attempted to make out that the plaintiff had not disclosed deed No 9747

as being a material deed with regard to the devotion of title, even though

by deed No 593 dated 3 September 1991 (pending partition deed) the

plaintiff has purchased from the 1st defendant and his brother somadasa

the right title and interest they will be declared entitled to buy the final

decree to be entered in the partition action in question. The petitioner

167

states is that in deed No 593, the vendors have recited title from the No

9747 dated 12 October 1916 and therefore cannot be unaware of the said

deed recited as being the source through which the vendors in deed No

593 have acquired title.

The position of the substituted plaintiff-respondent is that deed No 593

deals with two lands and on a reading of the schedule to the deed it is

quite clear that the 2nd land described in the schedule to the said deed is

the subject matter of the partition action and the first land has no

relevance whatsoever to the corpus. In other words the substituted

plaintiffrespondent maintains that he has acquired title to 2nd land dealt

in deed No 593, by purchasing the right title and interest that would be

allotted to the 2nd named vendor Samarasingha.

The substituted plaintiff respondent has submitted that the deeds marked

as C1, C2 and C3 referred to in paragraphs 17 and 18 of the petition were

not pleaded in the joint amended statement of claim of the 1st and 2nd

defendants and therefore the relevance of the said deed was not a matter

that was required to be considered in the lower court and the petitioner is

now attempting to set out a false claim to the land and delay the

conclusion of the partition action.

As a matter of fact the 1st and the 2nd defendants in their amended

statement of claim dated 4.9.1995 filed in the district court took up the

position that Abraham Appu was entitled to lot B described schedule to the

said amended statement of claim by virtue of the final decree entered in

partition case No 25071 D.C Kandy and decree entered in the court of request

of Gampola in action No. 116.In terms of the said amended statement of claim

the rights of Abraham has finally devolved on Bambarende Don

Kalyanawathie Wanigaratne (2nd defendant-

respondent), -do- Gunawathie, -do- Francis, -do- Arthur and -do- Badra.

By way of relief the 1st and the 2nd defendant-respondents have sought

that they be given an equitable portion of the land.

By paragraph21of the petition the petitioner has accepted the devolution of

title of Abraham up to Podihamine whom the petitioner says became the

sole owner of the property on deed No.2639 dated 9th August 1949

mentioned in their amended statement of claim filed before the learned

district judge. Even though in the amended statement of claim the 1st and

168

the 2nd defendants had stated that the rights of Podihamine devolved on

the collaterals namely, Ema Nona Gunawardena and Ariyadasa

Gunawardena, the petitioner is now trying to state by paragraph 24 of the

petition that the said Podihamine died on 1.10.1984 leaving and

administrable estate and in fact was administered in D.C.Kandy case

No.3236/T and one Helanhamy was granted with the letters of

administration and she (Helanhamy) thereafter by deed No.252 dated

3.5.1994 has transferred the corpus to D.A.Kusumalatha Malani who is a

sister of the petitioner. In the same breath the petitioner has attempted

to say that the said Kusumalatha Malani by deed No.13805 dated

24.9.1998 attested by G.Premaratne N.P. has transferred the rights in the

corpus to the petitioner and accordingly the petitioner is the sole owner of

the corpus.

A salient defect in the petitioner's case appears to be the by paragraph 21

of the petition he has accepted the devolution of title of Abraham as set

out in the joint statement of claim of the 1st and 2nd defendants up to

the point they say Podihamy became the sole owner of the subject matter

on deed No 2639. By the averment in paragraph 21 of the petition, the

petitioner is now trying to further espouse the cause of the 1st and 2nd

defendants despite the fact that they were parties in the partition action

and they failed to challenge the judgment entered in the partition action.

The judgment in the partition action has been entered on 12 March 1997.

According to the petitioner the rights of Podihamy had devolved on

Helanahamine and the latter had transferred it to the sister of the

petitioner on deed No 252 in the year 1994. More significantly the

petitioner is alleged to have acquired title from his sister on deed No

13805 on 24 September 1998. According to the Journal entries produced

in this application the partition action has been instituted on 23 August

1990. Accordingly, it is crystal clear that the petitioner has based its title

on a executed in 1998, namely almost 8 years after the institution of the

partition action and 1 year and 6 months after the entering of the

judgment. Admittedly the petitioner was not a party to the partition action

at the time when the interlocutory decree was entered. Therefore it

reveals that the petitioner had no rights to the property at the time the

interlocutory decree was entered. As the petitioner was not a party to the

169

partition action as at the date of the interlocutory decree, as has been

submitted by the president's counsel the petitioner cannot be considered

as a party aggrieved by the interlocutory decree, as no decision has been

made against him in the partition action. This undoubtedly disentitles him

to contest the interlocutory decree.

In this respect the judgment of this court in case No CA 329/02 (Don

Saranadasa Ranasingha Vs Samanthi Sulochana Gunasekera) applies to

this case, being a decision made on almost identical facts to this

application. In the said judgment citing Perera, J in the case of Perera Vs

Wijewikrama

15 NLR 411, Justice Wimalachandra reiterated the following passage of

Perera ,J.

"I am of the opinion that the remedy of restitytio in integrum can only be availed of by

one who is actually a party to the contract or legal proceeding in respect of which

restitution is desired" (page 413).

The Learned President's Counsel has submitted that special leave sought

to challenge the decision in Don Saranadasa Ranasingha Vs Samanthi

Sulochana Gunasekera has been refused by the Supreme Court in

application No SC (Spl) LA 161/06 by SC minutes dated 23 May 2007. For

the foregoing reasons, I am of the view that the preliminary objection

raised against the maintainability of the revision application should

succeed. Hence, the application made in revision by the petitioner stands


Sgd.


END OF JUDGMENT other useful details

C. A. No: CA 215// 2002(Revision) DC Kandy: 125781/P

Ranhoti Pedi Gedara Charles, Deceased-Plaintiff VSRanhotti Gedara

Keerthiratna, Maathgamuwa and another Defendants

170

Counsel :Dr Sunil Cooray for the petitioner and Nihal Jayamanna PC with

Ajith Munasingha for the substituted plaintiff respondent. on :

17.03.2009

Kwk/-

REBUTTING THE PRESUMPTION ARISING UNDER SECTION 110 OF THE EVIDENCE

ORDINANCE. PARTITION

C. A 769 A and 769 B / 1996 F

DC Panadura 246/P H Winnie Fernando,

10th Defenadant-Appellant

K G Sunil,


Vs

V P Malalasekara,


A M Wijeratna,

1st Defendant-Respondent and others

Before : A.W.A.Salam J Counsel: Mahinda Ralapanawa for the 10th defendant-appellant, Daya Guruge for the 11thdefendant-appellant and R

C Gunaratna for the respondents.

Decided On: 13.12.2011

A W Abdus Salam,J

This is an action to partition the land called Appukutiyawatta and Parangiyawatta, in terms of the Partition Law No 17 of 1997. The plaintiff in his plaint has shown undivided rights in the land to his siblings 1st to 9th

171

defendants. The 10th and 11th defendants are claimants before the surveyor and added as parties to the case. They filed their statement of claim setting up a title to the entire land by right of long and prescriptive possession. The corpus has been depicted in plan No 725 dated 12. 5. 1990 made by K G Fernando Licenced Surveyor and Commissioner of Court.

According to the plaintiff by right of long possession Don Siyadoris Apphuhamy and Kuruppage Dona Banchohamy were the owners of the corpus which was originally depicted in plan 8916 dated 03.05.1922 made surveyor Flamer Caldera. The said original owners had gifted the property to their daughter Dona Claris who died leaving a last will bearing no 5044, dated 11.10.1970 which was duly proved and admitted to probate in the District Court of Colombo in Testamentary proceedings No 897. Subsequently, by executors conveyance bearing No 6755, the land in question has been conveyed to the plaintiff and the Is to 9th defendants.

The 10th and 11th defendants maintained that they had prescribed to the land and 12th defendant pleaded that the 10th defendant conveyed to him on deed 235 in the year 1988 an undivided l6 perches and that the corpus be partitioned between him and the 10 defendant. The main ground of appeal of the 10th and 11th defendants is based on an alleged improper examination of title by the learned trial judge.

There was no controversy that in 1971 the plaintiff’s mother Clarice instituted a rei-vindication action (No 12417) against Winnie Fernando, the 10th defendant and two others seeking the ejectment of them from the land and premises in suit. Clarice, the plaintiff in the rei-vindicatio action has based her title on the same line of title as has been pleaded by the plaintiff in the instant partition action.

The appellant had sought to impugn the judgment of the learned district judge also on the grounds that the 10thdefendant-appellant’s had possessed the corpus for more than 16 years even after the judgment had been entered against him in the rei-vindicatio action. The appellants state that the plaintif and 1st to 9th defendants are estopped from claiming the land since they have not executed the judgment in the rei-vindicatio action for a long period of time exceeding well over 10 years. Further the 10th defendant appellant put forward in the forefront of his case that his possession of the

172

subject matter over a period of 16 years after entering judgment and decree in case No 12417/L has given him sufficient prescriptive title. In any event, the 10th defendant appellant has raised the question as to whether the plaintiff had proved that he was the licensee in case No 12417/L and whether the learned district judge in his the impugned judgment has given sufficient reasons for his conclusion that the land should be partitioned according to the rights shown by the plaintiff.

There had been admittedly two previous cases in which the 10th defendant and the 11th defendant's predecessor-in-title were defendants. It has been contented on behalf of the plaintiff-respondent that in fact the burden of examining title of the parties in a partition action was considerably lightened due to the decree entered in the earlier actions against the contesting defendants. In the circumstances, the plaintiff has submitted that the position maintained by the contesting defendants that there had been no proper examination of title by the trial judge, cannot be accepted.

Another question that loomed large in the presentation of the case of the contesting defendants was that they had prescribed to corpus. The mother of the plaintiff instituted action bearing No 12417 against the 10th defendant and sought the ejectment of the 10th defendant from the land. The plaint in that case is marked P6, the answer P7 and the decree dated 19th January 1973 as P8. The plaintiff's mother died in l973 and probate was issued on 23.09.1982. It is contended at the argument that the 10th defendant was in possession of this land since 1973 and therefore the burden is on the plaintiff to establish that he did not possess the land ut dominus.

The plaintiff in his evidence stated that subsequent to the impugned judgment having been entered in case No 12417, he informed the 10th defendant of his intention to dispose of the property and permitted him to stay on the land till he built him a house. As regards the permissive user of the 10thdefendant, the plaintiff was able to establish that they prepared plan bearing No 2604 by W.R.B de Silva licensed Surveyor which was submitted for approval to the Urban Council of Panadura in September 1980. The receipt issued by the Panadura Urban Council is marked P16. As a matter of fact the 10th defendant in his evidence admitted that a surveyor came to the land and subdivided into five lots and it was the plaintiff intention to sell the same. However 10thdefendant maintained the position that he objected to the said survey.

173

As regards the payment of rates to the Urban Council, it has to be observed that until the year 1985 the rates have been paid by plaintiff. The receipts regarding the payment of rates were produced marked P10, P11, P12, 1D6, 1D7. The 10thdefendant in his evidence stated initially that he paid the rates for both allotments of land. Thereafter he stated that there was a remission of rates but no evidence was produced in support of this assertion. In the circumstances, the learned counsel of the plaintiff has submitted that his clienthas clearly rebutted the presumption arising under section 110 of the Evidence Ordinance and established that the 10thdefendant's occupation of the land was referable to an acknowledgment of the plaintiff’s title.

According to the 11th defendant the mother of the plaintiffinstituted action No 10875 against the 11th defendant's predecessor-in-title Siripala in respect of this land. The plaint is marked 1D2, the answer 1D3 and judgment was entered in favour of the plaintiffs mother in l968. The decree entered in the said case was marked as 1 D 4. Thus it is common knowledge that Siripala has had no paper title to this land and the 11th defendant in his statement of claim pleads that he purchased this land in 1985. In his evidence he stated that at the time he made the purchase from Siripala, the latter was not on this land. The 11th defendant was able to testify in regard to his alleged title only from the year 1985. Admittedly, when Jayasiri Malasekera cut down trees on this land Siripala had not objected to the trees being so cut down.

The evidence also indicates that Siripala Fernando had put up a foundation for a building and the 11th defendat-appellant put up a small house on the very same foundation. He testified that the plaintiff and/or his agent did not cut down any trees that stood on the said five (05) perches of land.

It was submitted that the trial judge had erred in accepting the evidence of the plaintiff-respondent and other evidence led on his behalf and rejecting the evidence of the 10th defendant-appellant. It was also submitted that in deciding this case in favour of the plaintiff-respondent he has failed to give any reasons for his findings other than a mere narration of the evidence given by the witnesses.

As regards Points of contest No’s 29 and 30 it was urged that the learned district judge had erred in deciding the same in favour of the plaintiffrespondent when it was quite clear that the boundaries and extent

174

given in the land described in the schedule to the plaint are different from the boundaries and extent given in the Preliminary Plan marked 'X'. It is to be observed at this stage that there was no contest regarding the identity of the corpus and whatever the slight discrepancies that they may have occurred in the description of the land and its boundaries cannot be taken as being favourable to the contesting defendants. It is to be noted that the contesting defendants have in fact made a claim for prescriptive title to the subject matter of the action that was identified by the plaintiff in his plaint and also depicted in the preliminary plan.

It transpired in the evidence of the plaintiff that to facilitate the plaintiff and/or his successor in title to possess the property in the manner they wanted the 10th the defendants has agreed to accept alternative accommodation provided by the plaintiff. Accordingly the plaintiff has constructed a house at Sarikamulla in Panadura for the 10th defendant. The

10thdefendant has in fact agreed to vacate the premises in question and has also made a statement to the police stating that he is willing to move into the house constructed by

the plaintiff to provide him alternative accommodation. A photograph of the house constructed by the plaintiff has been produced marked as P14.

Even though the contesting defendant alleged that the statement made to the police has been recorded under duress it has not been proved according to law. The contesting defendant has not even made a single complaint to any one in authority regarding the alleged duress exerted on him. Further, the contesting defendant has also made the statement to the mediation board admitting the position taken up by the plaintiff.

Taking all these matters into consideration it is highly improbable on a balance of probability to infer that the contesting defendants have acquired a prescriptive title to the subject matter of the action or acquired any other rights by right of purchase.

In the circumstances, the irresistible conclusion the learned district judge could have arrived at was that the land in question is owned by the plaintiff and 1st to 9th defendants and that the contesting defendants are mere licensees.

175

For reasons stated above, I am of the opinion that the both appeals preferred by the 10th and 11th defendant-appellants do not merit any favourable considerations and therefore liable to be dismissed. Accordingly, the judgment of the learned district judge therefore is affirmed and appeals dismissed without cost.


PROTECTION GIVEN TO PARTITION DECREES

protection given to partition decrees from being attacked on the grounds of fraud, collusion, omissions, defects, and of the failure to make “persons concerned" parties to the action should not be construed as a licence to flout the provisions of the partition law and to deprive others of their property rights to enrich conveniently at the expense of the victims.

CA Appeal No. CA 1186/02 D.C. Gampaha 36831/P

Weragoda Vidanalage Thamara Veragoda,.

Petitioner

Vs

1. A Arachchige Premapala,

Plaintiff-Respondent.

Before A.W.A. SALÂM, J. Counsel U.De Z. Gunawardena with C.Horange for the petitioner, Athula Perera for the 1stplaintiff-respondent and H.Withanachchi for the 2nd and 3rd defendant-respondent.

176

Written submissions tendered on 13.11.2008 and 17.11.2008 Decided on 24.11.2008

Abdul Salãm J.

The petitioner has made the present application to revise the interlocutory

decree and final decree entered in partition case No: 36831/P in the

District

Court of Gampaha. Admittedly, she was not a party to the partition action.

Her allegation is that the interlocutory and final decrees entered in the

partition action have been obtained by the Plaintiff-Respondent

(hereinafter referred to as the “Plaintiff”) and the Defendant-Respondent

(hereinafter referred to as the “Defendant”) calculatingly misleading the

District Court.

The facts and circumstances that led to the filing of the partition suit, are

worthy of being narrated briefly. According to the plaint, by right of long

and prescriptive possession the original owner of the corpus was Kamala

Seline Meemana Hettiarachchi who had gifted the same to her husband

Saddananda on deed No: 841 dated 08.11.1993. Saddananda on deed

No: 845 dated 13.11.1993, has transferred an undivided 10 perches from

and out of the entire land to one Balasooriya Arachchige Premapala. The

straightforward devolution of title set out by the plaintiff, when drawn in

the traditional manner of showing by way of a pedigree, would appear as

follows.

177

The sequence of events that had taken place prior to the institution of the

partition action, need to be set out at this stage.

The alleged original owner has purportedly gifted the property to her

husband on 8.11.1993 (by A 12) and he in turn transferred an undivided

10 perches on 13.11.93 (by A 13) barely five days after his becoming the

owner of subject matter. The partition suit had been filed on

30.11.1993, just after 17 days of his becoming a co-owner. Quite

strangely, both deeds A12 and A13 have been executed by the same

Notary. It is rather an unusual feature that the notary who attested deed

A 12, having acted for his clients Mrs. Hettiarachchi and her husband

Saddananda had subsequently acted for the transferee Premapala in

relation to the execution of deed A 13 and then when the common

possession of the property between them had become allegedly

impracticable, the same notary in his capacity as an attorney at law had

filed the partition action on behalf of Premapala against his former client

Saddananda. From the above it is quite obvious that both the plaintiff and

the defendant in the partition action together with the 3rd respondent were

perpetrating a fraud to obtain a judgment in rem affecting the subject

matter by manipulatively impressing upon court that they had a valid title

to the property in question and that the common possession between

them was impracticable.

178

The primary question that arises for determination in this application is

whether the land in respect of which the petitioner alleges that her rights

had got wiped out and the corpus in respect of which the impugned final

decree had been entered are identical to one another. The position of the

petitioner is that the reference made in the plaint to Kamala Seline

Hettiarachchi (3rdrespondent) as being the original owner of the corpus, is

demonstrably false and the owner of the subject matter was her

predecessor in title Samarakoon Arachchige Ana Perera, who by her last

will had devised and bequeathed it to her. The plaintiff having described

the corpus in his plaint has referred to a building on it, identified by

means of assessment No: 131, at Gonahena.

As has been quite correctly pointed out by the learned counsel of the

petitioner, house No: 131 is the tell-tale mark that led to the exposure of

the deception practised by the defendant in collusion with the plaintiff. In

this context, let us first examine the electoral registers marked along with

the petition as A15. The electoral registers from the year 1967 to 1981

are admittedly applicable to premises No: 131, Gonahena. Samarakoon

Arachchige Ana Perera has undisputedly lived in this house until her

death. Even in the said Last Will No. 1880 of Ana perera that was duly

proved and admitted to probate, in Testamentary Case No:28584/T, the

residence of the testator is given as No: 131, Gonahena. The said house

has been specifically referred to in deed marked A12 and also in the

schedule to the plaint. This, doubtlessly strengthens the claim of the

179

petitioner that Samarakoon Arachchige Ana Perera was the true owner of

the corpus or at least the owner of house bearing No: 131.

It is also important to note the admission made by the defendant and his

wife in their statement of objections. They admit that having come into

possession of house No; 131 aforesaid after the death of the said Ana

Perera, who had died on 04.05.1981. The possession of house No 131 by

Ana perera as acknowledged by the defendant and 3rd respondent, the

mysterious enthusiasm shown towards the execution of A12 and A13 in

quick succession and the indecent haste shown in filing the partition

action, in my view demand the conclusion that the partition suit

complained of was a collusive action aimed at depriving the petitioner of

the right of being heard with a view to obtain a final decree behind her

back.

According to the petitioner, Ana perera was the owner of the subject

matter at the relevant time. The defendant and 3rdrespondent have

admitted that

Ana Perera occupied premises No: 131, until her death. Section 110 of the

Evidence Ordinance provides that when the question is whether any

person is the owner of anything of which he is shown to be in possession,

the burden of proving that he is not the owner is on the person who

affirms the negative. Learned counsel of the petitioner has submitted that

Kamala Seline and her husband had remained tight- lipped and had not

sought to deny, at least, for the sake of formality that Samarakoon

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Arachchige Ana Perera was the owner and that is misleading silence. Upon

consideration of the attended circumstances, I am inclined to think that

the attempts made by the plaintiff, the defendant and the 3rd respondent

even in these proceedings to suppress the nature of possession of Ana

Perera are suggestive of a dangerous ulterior motive.

The petitioner maintains that Samarakoon Arachchige Ana Perera devised

all her properties to her by her last will No; 1880 dated 8th June 1980. The

said last will, has been duly proved in testamentary proceedings in the

District Court of Colombo in Case No: 28584/T and admitted to probate.

It is quite pertinent to observe at this stage that a competing last will

purporting to be that of the said Ana perera produced in the same

proceedings by an intervenient petitioner, in which Kamala Seline

Meemana Hettiarachchi (3rd respondent) the so-called original owner of the

corpus figured as one of the beneficiaries, was rejected by court on the

basis that it was a forgery.

The long drawn out dispute relating to the last Will of Ana Perera was

conclusively resolved in the Supreme Court in favour of the petitioner, to

whom all properties, movable and immovable of late Ana Perera were

bequeathed. The petitioner maintains that she employed a dealer in real

estate by the name Gamini Rajapaksa to clear the land which is the

subject matter of the partition action for purpose of sale in blocks. The

petitioner alleges that at this stage her agent Gamini Rajapaksa while

clearing the land, was obstructed by Saddananda.

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The Petitioner's position is that the corpus of partition action No: 36831 is

in fact Talagahawatta alias Warakanatta. The plaint in the partition action

No: 36831 described the corpus as Talagahawatta situated at Gonahena.

The petitioner also states that Talagahawatta that has been inadvertently

spelt in the forged last Will as ‘Kalagahawatta’ is also known as

Warakanatta.

It is of much significance to note the events that took place after the

petitioner employed her agent to sell the land. Setting out the series of

incidents that followed, the petitioner states that the defendant having

prevented her agent from clearing the land filed action No: 36619/L

seeking a declaration of title in respect of the same land which was the

subject matter of the partition action, deliberately describing the land as

Warakanatta, thus conveniently omitting to identify the same as

Talagahawatta.

Consequently, what remains to be determined is whether the corpus in

the partition action and the subject matter of the rei-vindicatio action are

identical. The land in action No: 36619/L is depicted as lot 01 in plan No:

1062/L. The corpus of the partition suit is depicted in the final plan No:

937. The extent of the corpus shown in the final plan of partition is 3

roods 34.3 perches while the extent of lot 01 in plan 1062/L is 3 roods

35.1 perches. The difference in extent is 00.08 perch which undeniably

falls within the negligible margin. As far as the extent of the lands shown

in both plans are concerned, it demands the assumption that the lands

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depicted for purpose of both suits are almost identical to one another and

one and the same.

In the surveyor's report appended to plan no: 1062/L, marked in these

proceedings of consent, on 23.11.2007, Saddananda has claimed the

subject matter of action in L/36619, by virtue of the final decree in

partition Case in question. This I think renders it self-explanatory that the

corpus in the partition suit and the subject matter of the rei vindicatio

action are identical.

As regards the original ownership of the subject matter of the partition

action the defendant, plaintiff and 3rd respondent have taken up different

positions diametrically opposed to each other. In L 36619/L the plaintiff

(Saddananda) has taken up the position that he is the original owner of

the subject matter of that action. For reason of his own, he has made no

mention of Kamala Seline who figured as the original owner in the

partition action.

As was urged on behalf of the petitioner the conduct of Saddananda and

others, acting in concert and collusion is contemptible not so much of

their attempt to rob the petitioner of the land which has been devised to

her by a last will, but because of their heinous act in showing the

cheekiest contempt for the courts of justice - by attempting to make use

of the courts as instruments of fraud.

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In Attorney-General vs. Podisinghe 51 NLR 385 the exceptional

circumstances in which an application in revision should be entertained

were spelt out to include circumstances ending up in miscarriage of justice

or where a strong case for the interference of the Supreme Court has

been made out by the petition or when the applicant was unaware of the

order made by the Court of Appeal.

The respondents to this application have vehemently opposed the exercise

of revisionary powers of this court in relation to the to the application to

set aside the impugned decrees, based on the grounds of laches and/or

delay in invoking the revisionary jurisdiction of this court, alleging that

such delay or laches are attributable to the petitioner. No doubt there has

been a delay in invoking the revisionary jurisdiction of this Court. In so far

as it transpires from the documents produced, the final decree in the

partition action has been entered on 22.08.1996. The revisionary

jurisdiction of this Court has been invoked by the petitioner on

09.07.2002. Hence the interval between the two events counts a period of

06 years. The question then arises for consideration is whether owing to

the period of interval between the two events, the application for revision

should stand dismissed, notwithstanding the unimaginable magnitude of

fraud and collusion perpetrated by the beneficiaries of the said decrees. A

careful scrutiny of the series of incidents and several protracted litigations

that had taken place after the death of Ana Perera, would reveal that the

respondents to this application were determined to circumvent the

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judgment in the matter of the testamentary case of Ana Perera, by hook

or by crook. In the achievement of their aspiration, the respondents had

not shown the least consideration or respect to court.

In this respect I consider it as being appropriate to quote Sir James

Stephen from his “History of the Criminal Law of England” (vol. II. p. 121)

where he observed as follows:

" I shall not attempt to construct a definition of ' fraud ' which will meet

every case which might be suggested, but there is little danger in saying

that whenever the words ' fraud ' or ' intent to defraud ' or 'fraudulently'

occur in the definition of a crime, two elements at least are essential to

the commission of the crime, namely, first, deceit or an intention to

deceive, or in some cases where secrecy; and secondly, either actual

injury or possible injury, or an intent to expose some person either to

actual injury or to a risk of possible injury by means of that deceit or

secrecy . . . . . . . . . . . . A practically conclusive test as to the fraudulent

character of a deception for criminal purposes is this: ' Did the author of

the deceit derive any advantage from it which he could not have had if

the truth had been known? If so, it is hardly possible that that advantage

should not have had an equivalent in loss or risk of loss to someone else,

and if so, there was fraud".

It is my considered view that the statement of Sir James Stephen, can

most appropriately be applied to the respondents to this application and

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they would not have derived any advantage through their effort, had the

petitioner was made aware of the partition suit as required by section

4(1) (c) of the Partition Act or the learned district Judge was enlightened

as to the background of the litigation the parties have had over the

matter of the estate of Ana perera. For purpose of completeness, let me

reproduce section 4(1) (c) of the Partition Act, to ascertain the nature of

the responsibility the said Act casts on the plaintiff. It reads as follows.

4(1) In addition to the particulars…. the plaint…. shall contain the

following particulars.

4(1) (c) the names and addresses of all persons who are entitled or

claim to be entitled to any right, share, or interest to, of, or in that

land or to any improvements made or effected on to that land and the

nature and extent of any such right, share, interest or improvements, so

far as such particulars are known to the plaintiff or can be

ascertained by him. (Emphasis is mine).

It is also useful at this stage to advert to the deed of gift A12 in which a

recital has been made as to the original ownership of the subject matter.

Very strangely this deed bears a “prior registration” reference indicating

that the notary had invited the land registry to register the said deed in

continuation of the Folio referred to therein. What does this really mean?

The fact that the notary had given the prior registration reference in A 12

means that there had been other instruments affecting the same land and

registered in the Land Registry prior to the execution of A 12. The learned

186

district Judge in the sacred discharge of his duty to investigate the title to

the corpus appears to have ignored the prior registration reference given

in A 12. It is lamentable that the registered attorney at law of the

plaintiff, who had been very much involved in the institution of the

partition action, has failed to bring this to the notice of the learned district

Judge.

When instituting a partition action, the law expects the plaintiff to signify

the original owner/owners of the corpus. However, such information need

not necessarily be stated with such accuracy, as it is open for anyone, if

necessary, to go back to yet an earlier owner in point of time, provided

that the name of an original owner is set out with reasonable carefulness.

Our courts by and large are accustomed to tolerate shortcomings arising

in regard to such disclosures. In this respect, usual it has been for courts

to adopt a realistic approach than to be cumbersomely legalistic. However

the facts and background peculiar to the partition action in hand, in no

way can justify such a flexible attitude. Hence the plaintiff cannot be

excused or tolerated for fabricating evidence regarding the original

ownership to achieve the selfish objectives of the defendant and his wife.

As regards the alleged delay in filing the application for revision, the

petitioner has placed before court the impossibility of invoking the

jurisdiction earlier than what she in fact had done. She has taken up the

position that she did not know of the institution of the partition action or

the entering of the judgment/interlocutory decree/final decree in the

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partition case to quickly invoke the revisionary powers of this Court. For

this reason, as far as the petitioner is concerned, the alleged delay cannot

said to be anundue delay and therefore should not be held to prejudice

the rights so long as she had no notice of the partition suit or its

termination.

(Emphasis is mine)

The maxim “Lex non logit ad impossibilia” in my opinion to a great extent

can save the petitioner of the embarrassment of having to face the

allegation of delay she is blamed. The maxim which favaours a person of

the type of predicament the petitioner was placed, expects nothing

impossible from her in the performance of the law. Maxwell (12th edition)

on Interpretation lays down the guide line that the law must be

understood as dispensing with the performance of what is prescribed

when

performance of what is prescribed is impossible. In the light of the above

maxim it is not only impossible but utterly irrational to expect from the

petitioner to have invoked the revisionary powers of this Court earlier

than she did, when she had no knowledge of any fraud or collusion

resulting in any form of miscarriage of justice.

Learned Counsel on behalf of the petitioner contends that the facts in case

No: 36831/P satisfy the criteria, spelt out in 51 NLR 385. He has urged

that there is a patent miscarriage of justice and in any event, it is certain

that the respondents are not the true owners of the corpus of the partition

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action No: 36831/P because they had misled the District Court by a

fabricated pedigree.

For instance in Harding vs. Price 1948 1RB 695- a trailer of vehicle

collided with and damaged a stationary car. Driver was unaware that the

accident had happened and so did not report it to the police as required

by section 22(2) of the Road Traffic Act 1930. The driver's defence was

that he was unaware of the accident owing to the noise of the vehicle.

His defence was upheld. The reasoning adopted by Lord Goddard C.J was

that the driver concerned cannot report something of which he had no

knowledge. It was stressed in the judgment in that case that any other

view would lead to calling upon the man to do the impossible.

In Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 it was held that the Court

of Appeal should act in revision, when there is a grave irregularity or a

miscarriage of justice, even in a case where revisionary powers have not

been even invoked by the Petitioner.

It is trite law that the protection given to partition decrees from being

attacked on the grounds of fraud, collusion, omissions, defects, and of the

failure to make “persons concerned" parties to the action should not be

construed as a licence to flout the provisions of the partition law and to

deprive others of their property rights to enrich conveniently at the

expense of the victims. In my opinion no court should not ever hesitate

even for a moment to appropriately use its revisionary powers to give

relief where a miscarriage of justice has occurred. The miscarriage of

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justice that has resulted in this case is of such magnitude, in respect of

which allowances cannot easily be made. Fraud can no longer be

considered not merely as a challenge to the party affected but above all

constitutes an affront to the dignity and authority of the institutions

vested with the due

administration of justice.

For the foregoing reasons, I consider it as being most appropriate, in the

circumstances to set aside the proceedings, judgment, interlocutory

decree and final decree entered in the partition action. Accordingly, I

allow the revision application. The partition action of the plaintiff therefore

shall stand dismissed.

The petitioner is awarded costs of this application against the plaintiff and

defendant.

Sgd.


Kwk/-

190

PRICELESS ADVANTAGE OF SEEING THE WITNESSES AND

OBSERVING THE MANNER IN WHICH A WITNESS

TESTIFIES. JUDGE’S FIRM OPINION AS TO THE

CREDIBILITY OF THE WITNESSES. RULE AGAINST

INTERFERANCE OF FINDING IN CREDIBILITY OF

WITNESSES AS EXPRESSED BY THE JUDGE LIGHTLY

PRICELESS ADVANTAGE OF SEEING THE WITNESSES AND OBSERVING THE MANNER IN

WHICH A WITNESS TESTIFIES. JUDGE’S FIRM OPINION AS TO THE CREDIBILITY OF THE

WITNESSES. RULE AGAINST INTERFERANCE OF FINDING IN CREDIBILITY OF WITNESSES

AS EXPRESSED BY THE JUDGE LIGHTLY OR DEFER FROM THE FINDINGS BASED UPON

ORAL TESTIMONY GIVEN BEFORE HIM.

C.A. No. 1079/96(F)

D.C.Kegalle 2366/L

Govinnage Kelvin Perera,

Giniwalapitiya,

Defendant-Appellant

Vs.

1. Warnakulasuriya Arachchige Don Anal Freds,

2. Dona Indrani Muhamdiramge

3. Swarnamalie Clara Muhamdiramge

4. Gilbert Steven Muhamdiramge

5. Ramani A Muhamdiramge

All of Bulathkohupitiya

Substituted-plaintiff-respondents

Counsel: Lasitha Chaminda for the Substituted- Defendant-appellants and

Devasenadhipathi for the Plaintiff-Respondent

Argued on : 08.02.2011

Decided on : 03.03.2011

A.W. ABDUS SALAM, J.

By plaint dated 8th May 1981 the plaintiff sued the defendant for a declaration of title to the land and

premises referred to in the plaint and ejectment of the defendant. The position of the plaintiff was that

191

the subject matter had been given to the defendant for his occupation as his servant. In other words,

the plaintiff identified the defendant as a permissive user or licencee in respect of the subject matter.

As the defendant in partition action No.17586 claimed ownership and thereby disputed title of the

plaintiff, this action had to be instituted.

The defendant in his answer denied the title of the plaintiff and took up the position that he

commenced his possession of the subject matter on an independent title and had acquired a

prescriptive title by the time the action was filed.

The learned district judge in a well considered judgment held that the evidence of the defendant with

regard to his claim was totally unbelievable and for reasons stated therein commented that the

evidence of the defendant was also false. The plaintiff has stated that the defendant came into the

subject matter as his employee and continued to occupy the same even after his voluntary resignation

by document marked P3.

The document P3 was admitted to be correct by the defendant as well. There is no evidence that

after the resignation of the defendant from the employment of the plaintiff, the defendant had

changed the character of his employment in respect of the subject matter. The learned district judge

had given cogent reasons for accepting the evidence of the plaintiff and that of his witnesses.

Undoubtedly, the learned district judge has had the priceless advantage of seeing the witnesses and

the manner in which they testified. He has expressed a firm opinion as to the credibility of the

witnesses. In the circumstances, this court should not lightly interfere or defer from the findings of the

learned district judge based upon oral testimony given before him.

The plaintiff has clearly proved his title to the subject matter and the defendant’s claim for prescriptive

title had been comparatively weak and unsatisfactory. As such, I am of the opinion that the learned

district judge had no alternative but to enter judgment for the plaintiff as prayed for in the plaint.

For reasons stated, I am not inclined to hold that the appeal preferred by the defendant merits any

favourable consideration. Appeal dismissed and the judgment of the learned district judge affirmed.

The plaintiff is entitled to costs of this appeal.

Sgd.

192

Judge of the court of Appeal

Kwk/=

PRESCRIPTION-LICENSEE-INGREDIENTS NECESSARY An agent or licensee to prescribe he must change the character of his

Possession by some act which is known to the principal, the owner of the

Land, that he is in adverse possession.

PARTITION-CLAIM BASED ON PRESCRIPTION TO THE CORPUS BY A CONTESTESTING

DEFENDANT- EVIDENTIAL VALUE OF THE PARTIES IN THE LIGHT OF THE

DOCUMENTSTRIAL JUDGES INCORRECT FINDINGS ON FACTS- POWERS OF THE COURT

OF APPEAL TO OVERRULE WRONG INFERENCES DRAWN FROM FACTS-

Vigilantibus non domientibus, Jura subvenient -PAYMENT OF RATES ALONE

IS NO PROOF OF PRESCRIPTIVE POSSESSION.

C.A. 923/97

W.L.

Ranjith Silva, J.

The plaintiff Appellant (Appellant) instituted action for the partition of the Land called

Dikkumburagewata alias Thalagahawatte, which upon a commission issued by

Court in the course of the action came to be depicted a lot 1 in Plan No.214 dated 18

November 1988 prepared by surveyor Anton Samararatne which is filed of record,

marked X. The report of the surveyor is marked as X1. The Learned District Judge

after trial dismissed the action of the Appellant holding that the 3rdand the 4th

defendants respondents (3rd and 4th contesting defendants respectively) have

prescribed to the said land, the subject matter of this action, depicted as lot 1 in the

said Plan (hereinafter referred to as the Land).

Counsel, for the 3rd Defendant Respondent who shall hereinafter be referred to as

the 3rd contesting defendant argued that by deed bearing number 2827

Palliyaguruge Don Nicolas Wijesiri Goonawaradane who was entitle only to a ¾

193

share of the Land gifted only his ¾ share of the Land to his children and that the

balance ¼ share was not given to them. He contended that the balance ¼ shares

was never disposed of by way of deeds and that there is no evidence to show that

the said Palliyaguruge

Don Nicolas Wijesiri Goonawaradane was the original owner of the Land. He

contended further that there is no evidence to show that Palliyaguruge Don Nicolas

Wijesiri Goonawaradane was the father of the transferees. Therefore he contended

that the fact that the balance ¼ share devolved on the Appellant and the 1st and

the 2nd defendants was not substantiated and thus the Appellant and the 1st and

the 2nd contesting defendants did not acquire any rights to the remaining ¼ share of

the Land. The Counsel contended that the balance 1/4th share should be kept

unallotted and the 3rd and 4th contesting defendants should be allowed to stay on that

¼ share of the Land and enjoy their share of the Land. This submission of the

Counsel for the Respondent is misleading. I have perused the document P1 and I

find that it is a deed of gift and in that it is specifically mentioned that the donor

Palliyaguruge Don Nicolas Wijesiri Goonawaradane is gifting his ¾ share of the

property to his grandchildren and that he was doing so for the love and affection he

had towards them. Thus it appears that the balance ¼ shres had devolved on the

plaintiff and the 1st and the 2nd defendants as claimed by the plaintiff. The Learned

Judge in his judgment has come to a specific finding that the paper title to the Land

was with the plaintiff and the 1st and the 2nd defendant’s. Therefore in all the

circumstances, especially as there is no cross appeal filed by the 3rd and

4thcontesting defendants, we find that there is no reason to interfere with the findings

of the Learned Trial Judge that the plaintiff had proved the devolution of title on the

deeds.

Prescription.

The Learned Judge has held against the Appellant on the issue of prescription.

(Issue No.8) The learned Trial Judge has held that the 3rd and the 4th contesting

defendants have prescribed to the Land. Therefore I now proceed to decide on the

issue of prescription.

Title by prescription is an illegality made legal due to the other party not taking action

at the proper time. I would like to quote one of the relevant maxims namely the

194

maxim Vigilantibus non domientibus, Jura subvenient meaning – the laws

assist those who are vigilant, not those who sleep over their rights. Dealing with this

maxim, it is stated, in the book entitled ‘Broom’s Legal Maxims’ Tenth Edition at

page 599, I quote; “….for if he were negligent for a long and unreasonable time,

the law refused afterwards to lend him any assistance to recover the possession;

both to punish his neglect nam leges vigilantibus, non dormientibus jura

subvenient and also because it was presumed that the supposed wrong-doer had

in such a length of time procured a legal title, otherwise he would sooner have been

sued”.

The version of the contesting defendants

The version of the 3rd and 4th contesting defendants was that in 1925 one Ginthota

Kapuge Arnolis (Arnolis) commenced to possess the Land having erected a house

thereon, that in or about 1945 the 3rd contesting defendant married Juile Nona the

daughter of the said Arnolis and came to reside on the Land and effected repairs to

the house that was already there. The 3rd contesting defendant pleaded that he was

in adverse, independent and uninterrupted possession of the Land since 1945 and

acquired prescriptive rights to the same, that he never came on the Land as a

licensee or as a lessee under the mother of the Appellant, that he paid all

rates/taxes in respect of the Land and cultivated the same. The 3rd contesting

defendant further claimed that the tombs shown in the preliminary Plan marked as X

are those of his father in law Arnolis and mother-in-law Arnolihamy.

The Appellant’s version

The Appellant’s case was that the 3rd contesting defendant came to reside on this

Land with the leave and license of the Appellants mother and after her death

remained in possession of the Land looking after it on behalf of her children, namely

the plaintiff and the 1st and the 2nd defendants. It was contended on behalf of the 3rd

contesting defendant that, the brother of the Appellant, the second defendant had on

one occasion stated that the 3rd contesting defendant came to reside on the Land

with the leave and license of his mother and on another occasion has stated that the

3rd contesting defendant came as a tenant of his mother. In the eyes of the law it

may be that there is a vast difference between a licensee and a lessee but for a

layman such as the 2nd defendant this cannot be of any significance and thus should

not be given an undue weightage, because in colloquial language as understood by

195

common man what was meant was obviously that the 3rd defendant came to reside

on the Land with the permission of their mother.

First and formost I must deal with the findings of the Learned Trial Judge wherein he

conclude that there was no basis for the plaintiff to file this partition action as there

was no assertion that common possession was not possible, as such the action

was filed on a wrong basis.

It is no longer necessary especially after the amendment whether it was in force at

the time this action was filed or not, for a co-owner to establish that the co-ownership

was not possible. The law before the amendment was not in accordance with the

Roman Dutch Law and that was the reason why the amendment was brought about

and at present a co-owner can file action to determine the co-ownership irrespective

of the fact that common possession was possible or otherwise. In this regard I would

like to refer to 10.3.1 Voet, - Wille on Principles pages 310 and 311. It is no longer

necessary to aver or plead the existence of a course of action to file a partition

action. This is a right any co owner has. Filing a partition action in such

circumstances cannot and will not prejudice the rights of parties in possession actual

or constructive as the Partition Act contains extensive provisions sufficient to

guarantee their rights, be it a co owner or a stranger, i.e. Se. 49, the provisions

protecting the rights of the tenants, provisions providing for notices on the parties

who have acquired rights etc.

It was the position of the Appellant that her father resided on the Land adjoining the

Land in dispute till his death which occurred in 1947. Counsel for the Appellant

argued that it is highly unusual and improbable that a titleholder of a land living in the

adjoining land would allow a trespasser to come and erect buildings on his land next

door to where he is living, lying down, without taking any action or without

complaining to the police. The position taken up by the 2nd defendant in his evidence

is that the 3rd contesting defendant sought permission from his mother to stay on the

Land and thus commenced to occupy the Land in dispute with the consent of his

mother though he could not remember the exact date. Before the arrival of the 3rd

contesting defendant, another person by the name of Alwis was in possession of this

Land and that it was only after he left that the 3rd contesting defendant came into

occupation of the subject matter.

196

The Learned District judge’s conclusion with regard to the issue of prescription is

mainly based inter alia on the birth certificate of his child born unto the 3rdcontesting

defendant by Julie Nona in 1956, marked as 3V3. In that the place of birth is given

as Dikkumburagewatta, Wadugeygoda. It appears that the Learned District Judge

has considered only the name of the land Dikkumburagewatta and not the place

where the land is situated. According to most of the deeds, the Plan marked X and

also so many other documents the subject matter of this partition action is situated at

Hathuwa Piyadigama and not at Wadugeygoda. 3V3 does not support the 3rd

contesting defendant’s version; on the contrary it shows that the birth of the child had

taken place on a different land in a different place. Thus it appears that the Learned

District

Judge’s conclusions are based on wrong findings.

Plaintiff’s mother complained to the headman of Piyadigama (west) as born out by

P8 on 19th of December 1959 with regard to a boundary dispute that arose in respect

of this land with a person called Piyasena and in that the place is given as

Piyadigama. P8 speaks volumes as to the fact that she was in control and in

possession of this Land. If the 3rd contesting defendant was in adverse possession

he should have taken the initiative to complain against the trespasser. His inaction

over this dispute shows that he was merely a licensee under the plaintiff’s mother.

It is common ground that there were two tombs on this land. In the death certificate

of Porolis De Silva Wijeratne, marked as P6, the place or the area is described as

Dikumburagewatta Piyadigama. The death certificate of William Silva Wijeratne, the

father of the Appellant, also bears the place of burial as

Diddkumburagewatta Piyadigama. Although the 3rd contesting defendant stated

that the tombs belonged to his father-in-law and mother-in-law he had not claimed

the tombs before the surveyor. The contesting defendants have failed to produce

the death certificates of the father-in-law and the mother-in-law in support of their

claims that the tombs were those of his father-in-law and the mother-in-law. It is also

noteworthy that according to X1, the report of the surveyor, the 3rd contesting

defendant has not claimed the Land or the tombs before the surveyor. The

3rdcontesting defendant had claimed only the buildings which were counter claimed

by the Appellant. Even though there may have been many other portions of lands by

197

the name Dikkumburagewatta it is highly unlikely that the owners of those lands

would have permitted the Appellant or for that matter any other person to build tombs

on their lands. The reason why the Learned District Judge came to the conclusion

that those tombs found on the subject matter were not those of the father and mother

of the Appellant and that their tombs were on a different land by the same name

Dikkumburagewatta was on a wrong apprehension of facts. (Viz. That the adjoining

land Dikkumburagewatta belonged to the father of the plaintiff)

The Learned District Judge formed his opinion that the Land mentioned in P6, the

death certificate referred to an adjoining land where the plaintiff’s mother lived and

that it could not be the Land, the subject matter of the partition action, for the simple

reason that the contesting defendants had stated that there were other lands by the

name Dikkumburagewatta adjacent to the subject matter. But the Learned District

Judge has completely failed to refer to the name of the Land given on the documents

that were before him. There is no evidence whatsoever to show that the father of the

Appellant owned the adjoining land and the evidence only showed that he was

residing on the adjacent land up to his death. The Learned District Judge had gone

on the footing that the Appellants father was the owner of the adjoining land which

formed a part of a larger land called Dikkumburagewatta but there was no basis for

such a finding.

The evidence was led on behalf of the Appellant that after the death of the father of

the Appellant they left the village Piyadigama and came to live in Galle, that the

mother of the plaintiff came to this land at intervals to pluck nuts and to attend to the

Plantations. The Learned District Judge in his judgment has looked askance at this

evidence and had considered this evidence to be preposterous. His reasoning was

that it was unlikely that the mother of the Appellant had traveled 12 miles in order to

attend to these needs. This reasoning of the Learned Trial Judge resulting in the

rejection the evidence of the Appellant that she exercised her rights on this land at

intervals appears to me rather unfounded and irrational. Owners of lands travel far

distances to reap the harvest and in order to attend to their Plantation. These are

common occurrences and I am unable to justify the findings of the Learned District

Judge on this matter. It is also quite natural and normal for owners to maintain their

lands in far distant corners of the island either by themselves or through their agents

and there is nothing strange in such conduct. The Learned Judge rejected this

198

evidence simply because his vision was clouded by coming to the erroneous

conclusion that the Appellant’s mother owned the adjoining land whereas in actual

fact she was only residing there and that she was not the owner of the adjacent land.

Assessment rates

Document marked P9 shows W. Wijeratne as the owner of the Land and premises in

suit which is No.8 Sri Dhamawansa Mavatha, Piyadigama. The Appellant produced

the tax receipts for the payment of rates P10-P27 in respect of years of assessment

1961 to 1987. The number of the house standing on this property is number 81/1

and in respect of this house the register bears the name of Samson as the owner

that is the name of the 3rd contesting defendant.

The 3rd contesting defendant has stated in his evidence that he paid rates in respect

of the Land but did not produce any receipts for such payments. But the 3rd

contesting defendant had paid rates only in respect of the house that was on this

land that too appears to be on the basis that he owned that house. His name

appeared after 1964 probably the 3rd contesting defendant had got his name inserted

in the register subsequently on a revision of the assessment register. Payment of

rates alone does not prove possession for the purposes of section 3 of the

Prescription Ordinance. (Vide. Hassan Vs Romanishamy 66 CLW at page 112)

The 3rd contesting defendant claimed prescriptive rights to the Land and not in

respect of the house that was on that land. Payment of rates for the house will not

enable the 3rd contesting defendant to claim prescriptive rights to the Land in

question. Even with regard to the house, he had commenced paying rates in 1964

and the Appellant or her mother had not been aware of the fact that the 3rdcontesting

defendant had started paying rates. IN Cadijar Umma Va. Don Manis 40 NLR 392

it was held that for an agent or licensee to prescribe he must change the character

of his possession by some act which is known to the principal, the owner of the

Land, that he is in adverse possession. (Vide.

There has been no overt manifest act proved by the 3rd defendant showing the

change of character of possession till 1988 when he ordered the plaintiff not to enter

the land and this action was instituted shortly thereafter on 15.03.1988. (Vide. Pages

79 onwards of the brief) The 3rd defendant had no time to prescribe.

199

In Bnadara Vs. Piyasena 77 NLR at page 102 it was held, I quote,

“ A lessee is not entitled to dispute his landlord’s title. Consequently he cannot

refuse to give up possession of the property at the termination of his lease on the

ground that he acquired certain rights to the property subsequent to his becoming

the lessee and during the period of the lease. His duty in such a case is to first

restore the property to the lessor and then litigate with him as to the ownership”

(Vide also Najeemdeen and others Vs Nageshwary and others 1999-3 SLR 123,

Lebbe

Marikkar V Sainu et al 10 NLR 339, Silva et a1 V Kumarihamay 25 NLR 449, Reginold

Fernando V Pabilinahamy and Others 2005 1 SLR page 31, Siyaneris V Jayasinghe

Udenis De Silva 52 NLR 289)

Credibility of the Respondent

In this regard I would like to refer to 3V3 Birth Certificate produced by the

3rdcontesting defendant. Production of this document was a clear attempt to mislead

the Court on the issue of prescription. When a person was born at Piyadigama the

birth certificate should bear that name as the place of birth. In 3V3 the place of birth

is given as Wadugegoda. While a Court of Appeal will always attach the greatest

possible weight to any findings of facts of a judge of a court of first instance based

upon oral testimony given before that judge, it is not absolved by the existence of

these findings from the duty of forming its own view of the facts, more particularly in

a case where the facts are of such complication that there right interpretation

depends not only on any personal impression which a judge may have formed by

listening to the witnesses but also upon documentary evidence, and upon inferences

to be drawn from the behaviour of these witnesses (demeanour and deportment)

both before and after the matters on which they give evidence. A Court of Appeal in

such situations is free to overrule such findings of facts if it appears that the trial

judge has misdirected him self on the facts or that wrong inferences have been

drawn from the facts. (Vide. Perera Vs Sigera Srikantha Law Reports (volume7)

page 17 and Karunaratne Vs Anulawathie Srikantha Law Reports (volume7)

page 74)

Therefore it is to be seen that an appellate court can and should interfere even on

questions of facts although those findings cannot be branded as “perverse”.

200

No buildings on the Land

The second defendant has mentioned in his evidence that the house on the Land

was built by his father but it appears that none of the deeds referred to a building. In

any case the initial house that was on the Land was built of wattle and daub with a

thatched roof. Counsel for the Appellant argued that it is not the practice to mention

in deeds, such temporary structures built of wattle and daub. In the survey report as

at the time X1 survey Plan was prepared, the particular house had been described

with the only difference, that the roof was thatched with aluminum sheets (takaran).

Therefore it is my considered view that the absence of a reference to a house in

those deeds submitted by the Appellant cannot be taken seriously and should not be

held against him.

Plantations

The Learned Judges findings on the Plantations are mainly based on the fact that the

3rd contesting defendant came on the Land in 1945. But if that finding is an

erroneous one, finding with regard to the Plantations also becomes erroneous

because the basis upon which those findings were reached was the fact that the 3rd

contesting defendant came to reside on the Land in 1945. The Land has been

claimed by the plaintiff and the second defendant before the surveyor. The

Plantations too were claimed by both parties. The 2nd Defendant claimed that the

Plantations belonged to him and his mother. The Appellant had submitted certain

documents in proof of his claim to this Plantation whereas the 3rd contesting

defendant had not submitted a single document in proof of his claim to the

Plantation.

Dispossession

A person who is in occupation of a property as a tenant licensee or even a lessee

continues to possess the Land in that capacity unless by some overt act he

manifests his intention to occupy the said land in a different capacity. A secret act on

the part of the licensee, tenant, or lessee to possess the Land in a different capacity

shall not constitute adverse possession or change the nature of his occupation.

201

If the Respondent came into possession with the leave the licensee of the

Appellant’s mother, then he remains to be in that position as an agent and he cannot

prescribe to the Land unless he could establish that he changed his character

asserting that he thereafter possessed the Land adversely for the required number

of years independently, undisturbed and uninterrupted. (Cadija Umma Vs D.M.

Harris 40 NLR 392. Manawadu Vs Eknaligoda 3 NLR 213)

In Nawaratne Vs Jayatunge 44 NLR 517 it was held that I quote, “the defendant

entered into position of the Land in dispute with the consent and the permission of

the owner, she cannot get rid of this character unless she CAN PROVE some over to

act showing an intention to process adversely.

In Silva Vs Kumarihami 25 NLR 449 it was held that possession of a lessee,

licnesee, servant or agent is in law the possession of the lessee or the owner.

It was the position of the Respondent that he married the daughter of Arnolis and

came into possession of this land under him but he failed to produce the marriage

certificate in proof of this, which would have been strong prima facie evidence in his

favour if what he said was correct. According to the answer filed by the 3rd and 4th

contesting defendants the Respondent had come to reside on this land in 1945 and

not in 1943. In his evidence the Respondent stated that he did not know Arnolis and

that the said Arnolis did not stay on the Land. The Respondent has highlighted a

particular anomaly in the evidence of the second defendant with regard to the

capacity under which the Respondent happened to come on this land. The second

defendant being a layman would not have understood the implications or the

differences between a lessee/tenant or a licensee. Whatever the term used by the

defendant the fact remains that the Respondent came to reside on this land with the

leave and license of his mother.

For the reasons I have adumbrated on the facts and the law I hold that the Learned

District Judge has not evaluated the evidence on the issue of prescription rationally,

causing enormous prejudice to the Appellant and the 1st and 2nddefendants resulting

in a substantial miscarriage of justice as the entire case rested basically on the

findings on the issue of prescription. For the reasons I have enumerated in the

foregoing chapter is if the issue a new regard to prescription was answered against

202

the 3rd and 4th contesting defendant’s the Learned District Judge would have

certainly held in favour of the Appellant and the 2nd defendant allowing and granting

the prayers to the plaint, partitioning the Land among the Appellant and the 1st and

the 2nd defendants as prayed for. For these reason I hold that the Learned District

Judge’s findings with regard to the issue of prescription and his judgment cannot be

allowed to stand. Therefore I set aside the Judgment of the Learned District Judge

dated 07-021997.

I am mindful of the fact that this action has been instituted as far back as in 1988.

The Judgment in the original court had been delivered in the year 1997 and it had

taken all most 13 long years for the appeal to be heard and disposed of. In this

background it would be meaningless to send this case back for a re-trial when the

misdirections on law with regard to the application of the law relating to prescription

can be conveniently corrected by this court. Further, in the event of a re-trial being

ordered it would undoubtedly contribute towards further delay and invariably result in

the contesting defendants being given a second bite of the same cherry by affording

them and opportunity to have recourse to an unnecessary trial and an appeal. In the

circumstances, I am of the view that this is a fit and proper case where the point of

contents can be answered afresh in the exercise of the appellate jurisdiction of this

Court. Hence In answer the points of contest as follows

No.1,2,3 and 4 yes

No.5 no

No.6 and 7 yes

No. 8 and 9 no

No.10 yes

The learned District Judge is hereby ordered to enter interlocutory decree

accordingly and proceed with the case.

203

Judgment of the District Court is set aside.

Appeal allowed.

Sgd.


A. W. A. Salam, J.

I agree.

Sgd.


END

D.C. Galle 10463/P

Punyawathie Gunaweera,

Plaintiff-Appellant

Vs.

1) Gertrude Silva

2) Daniel Wijeratne

3) W.K. Samson (deceased)

4th Respondent Substituted

4) Walgama Kankanamge Dayasena Defendants-Respondents.

N.R.M. Daluwatte PC for the Plaintiff-Appellant

S.N. Vijithsingh for the 3rd Defendant-Respondent

Argued : 24-09-09, 22-10-09, 19-05-10

Decided on : 31.03.2011

204

PENDING PARTITION DEEDS- PRHIBITED TYPE OF

ALIANATION

Deeds written obnoxious to section 66 of the Partition Act- Section 66 of the Partition

Act- The prohibition against alienation of undivided shares under section 66 does not

affect the disposal of property, by expressly charging or disposing of interest to be

ultimately allotted to parties in the action. Such dispositions are not considered as being

obnoxious to section 66 of the Partition Act. The scope of restriction imposed by section

66 - Koralage Podinona Vs Sunny Fernando 1986 2 CALR 217.

The deceased-plaintiff filed action to partition the defined and divided allotment of land

known as lot 3 of "Welle Elabodawatta" depicted in final plan of partition No. 366, filed of

record in DC Kalutara case No. 31046. There was no corpus contest and an important

feature in the case was the agreement of the parties as to the identity of the land sought

to be partitioned.

Devolution of title to the subject matter, in terms of the amended plaint, starts with the

original ownership attributed to (1) Liyasel Fernando (2) Andiris Fernando (3) Peter

Fernando (4) Michael Fernando (5) Melie Fernando (1st defendant-respondent) and (6)

Punchinona Fernando (2nddefendant-respondent). Liyasel Fernando and Andiris Fernando

Abdus Salâm, J.

205

had died without marriage and issues and their rights had devolved on the surviving

collaterals Peter Fernando, Michael Fernando, Melie Fernando and Punchinona Fernando.

Peter Fernando has died interstate leaving as heirs the 3rd defendant-respondent

Thilakaratna Fernando and Kamalin Fernando. Kamalin Fernando had died leaving as her

heirs her husband Sisil Clement Silva (4th defendant-respondent) and her children

Roshan Chandima de Silva (5th defendant-respondent) and Ranga Vides Silva (6th

defendantrespondent).

The 1/4th share of Michael Fernando from and out of lot 3, which gave rise to the main

controversy in the case, has been transferred on deed No 509 dated 15th December 1992

attested by H. R. Marikkar to the plaintiff. The devolution of title set out in the plaint is

as follows.

1. Plaintiff - 8/32

2. 1st defendant - 8/32

3. 2nd defendant - 8/32

4. 3rd defendant - 4/32




The plaintiff also pleaded in the amended plaint that even though the

17thdefendantrespondent and 18th defendant-appellant had allegedly purchased rights

from Michael Fernando on deed No's 6240 and 3124 respectively, the said deeds are

obnoxious to section 66 of the Partition Act and of no force or avail in law and no title

passes on the said deeds.

The contention of the 18th defendant-appellant and 17th defendant-respondent

(hereinafter collectively referred to as the "contesting defendants") was that Michael

Fernando referred to in the amended plaint transferred an undivided (1) 10 perches on

deed No 2741 dated 23rd April 1987, (2) 5 perches on deed No 2753 dated 11th May

1987, and (3) 10 perches on deed No 2808 dated 3rd June 1987 and (4) 10 perches on

deed No 2948 dated 20th January 1988 aggregating to 35 perches from and out of the

right, title and interest that he would be declared entitledto in the partition action to

206

them and therefore the plaintiff-respondent is not entitled to any shares from the corpus

as Michael Fernando did not have any rights in lot 3 to alienate, when he had purportedly

transferred ¼ share to the plaintiff on deed No 509.

The dispute therefore narrowed down as to whether the rights in the land had devolved

on the parties, as set out in the amended plaint or in the statements of claim of the

contesting defendants. By judgment dated 15thJune 1998 the trial judge held inter alia

that relied upon by the contesting defendants are obnoxious to section 66 of the Partition

Act and no rights pass on the said deeds. Hence, he declared deed No's 6240, 3124 and

several other deeds of the same type as being void in law. The 18thdefendant-appellant

has preferred the instant appeal, to have the said judgment of the learned district Judge

set aside and the partition action dismissed.

Admittedly, Michael Fernando was the 32nd defendant in partition action No 31046, in

addition to his being one of the legal representatives of the deceased plaintiff. In that

case the 32nd defendant Michael Fernando wasallotted lots 15 and 22 depicted in plan of

partition No. 366. Besides, in terms of the final decree, he was also entitled to an

undivided 1/4thshare from and out of lot 3 depicted in plan No 366. It is common ground

that the subject matter according to the preliminary plan is in extent of 1Rood and 27.8

Perches. The share claimed by the plaintiff is 16.95perches being equivalent to 1/4th

parts of the corpus. Based on the claim made by the contesting defendants, on the

strength of the pending partition deeds, their claim cannot extend to more than 11.3

perches of the corpus, being 1/6 share of John Fernando.

There was no dispute that Michael Fernando was declared entitled to lots 15 and 22 in

extent 1 Rood 16.33 Perches and 1 Rood 13.30 Perches respectively in terms of the final

decree entered in partition action No 31046. It is somewhat striking that Michael

Fernando has got both these lots15 and 22 as the 32nd defendant in that case and

therefore he could undoubtedly dispose of the rights by expressly charging or disposing

of his

interests to be ultimately allotted to him in that action.

The total extent of the lots 15 and 22 allotted to Michael Fernando works out to 2 Roods

and 29.63 Perches[1]. He has transferred the right, title and interest that he would be

http://www.blogger.com/post-create.g?blogID=4173165204744003849#_ftn1


207

declared entitled to in the partition action, on six occasions. As far as the present appeal

is concerned, the following deeds of transfers appear to be noteworthy.

They are…

Deed 2747 - to the 17th defendant - 10 perches




Michael Fernando also prominently featured in the final decree entered in the previous

partition action in relation to lot 3 which is the subject matter of this case. In actual

fact lot 3 in that case was allotted in lieu of the undivided shares of the deceased plaintiff

John Fernando and in terms of the final decree allotted to 1 to 7 substituted plaintiffs. It

is common ground that Michael Fernando is one of the children of John Fernando

(deceased plaintiff) and a substituted-plaintiff in the action.

An important legal question that arises for consideration is whether the deeds written in

favour of the contesting defendants are obnoxious to section 66 of the Partition Act, as

has been held by the learned district Judge. Section 66 of the Partition Act, lays down

inter alia that after a partition action is duly registered as a lis pendens under the

Registration of Documents Ordinance, no voluntary alienation of any undivided share or

interest or in the land to which the action relates shall be made or effected until the final

determination of the action. The prohibition against alienation of undivided shares under

section 66 has been held not to affect the disposal of property, by expressly charging or

disposing of interest to be ultimately allotted to parties in the action. Such dispositions

are not considered as being obnoxious to section 66 of the Partition Act. The scope and

the type of restrictions imposed by section 66 (previously under section 17 of the

Partition Ordinance No 10 of 1863) have been the subject of the decision of the appellate

courts in several matters. However, in my view suffice it would be to refer to the

judgment in the case of Koralage Podinona Vs Sunny Fernando[2].



208

Based on the decision of Stanley Gunawardena J, in Koralage Podinona (supra), it is

crystal clear that the different dispositions made by Michael Fernando in favour of the

contesting defendants in this case, are not obnoxious to the prohibition imposed under

section 66 of the Partition Act, for all those dispositions deal with undivided extent of the

right, title and interest of Michael Fernando to be finally allotted in the partition action,

as opposed to the prohibited nature of alienation involving undivided shares from and

out of the corpus. In the circumstances, it would be seen that the learned trial judge has

misread the deeds of the contesting defendants as being obnoxious to section 66 of the

Partition Act, which findings I think should stand corrected at the outset, as the deeds

are perfectly valid in law. Nevertheless the question whether title in respect of lot 3 could

pass on the said deeds is a different issue and should be considered separately

focusing on the contents of the deeds, by ascertaining exactly as to what Michael

Fernando intended to transfer on those deeds.

It was contended on behalf of the contesting defendants that without instituting a

partition action to divide lots 3, 15 and 22 the plaintiff-respondent who got undivided

shares from and out of Lot 3 cannot maintain the present action in respect of Lot 3 only,

as the contesting defendants hold right, title and interest that would be allotted to

Michael Fernando in the partition action to the extent of at least 35 perches out of Lot 3.

This argument of the contesting defendants is not only sustainable in law but

inconsistent with the facts of the case. It is settled law that an action for the partition of

more than one land can only be brought, if the lands sought to be partitioned are

contiguous in nature and the devolution of title is common to all.

The preliminary plan prepared in this matter does not indicate Lot 15 and/or Lot 22 as

being adjacent or bordering the subject matter Lot 3. On an examination of the

devolution of title applicable to all three lots it is hardly possible to say that the

devolution of title is common to all three lots. As such, even if the plaintiff-respondent

was keen, yet the law does not allow him to have recourse to one partition action to

partition all three lands in one single action, as the allotments of land the contesting

defendants submitted should be brought in for that purpose, do not form contiguous

allotments and come under a common devolution of title.

209

As far as the interlocutory decree entered in partition action 31046 is concerned, one has

to be mindful of the fact that Michael Fernando has been declared entitled to three

allotments of land, in two different capacities. He has been declared entitled to lots 15

and 22 in his capacity as the 32nd defendant. In the result he became the sole owner of

the entirety of lots 15 and 22 in an unqualified manner without having to prove anything

further.

As regards lot 3, the district Judge after the investigation of title under section 25,

declared and awarded rights to John Fernando (the deceased-plaintiff) in the name of

the legal representatives in a representative capacity. For instance, if John Fernando had

another child who has not been substituted as a plaintiff, would it mean that the child so

left out should be deprived of paternal inheritance?. The answer to this question under

no circumstances can be adverse to the child concerned.

By the mere fact that certain persons were substituted in place of the deceased plaintiff

and declared to be entitled to undivided rights in the land and that in lieu of those

undivided rights they are allotted rights under the final decree, by itself is insufficient to

make the substituted plaintiffs, co-owners of lot 3, unless they are able to establish their

right of inheritance from John Fernando. As a matter of fact the district Court is not

expected to carry out an investigation of title to ascertain as to the manner in which the

rights of a party, who had died pending the determination of the action and declared to

be entitled to undivided shares and/or given rights under the final decree, had passed

hands. Thus, it would be seen, in so far as lot 3 is concerned, Michael Fernando does not

per se become entitled to any rights from an out of Lot 3, directly under the final decree.

His title to an undivided 1/6th share of Lot 3 depends on two factors, namely that John

Fernando is declared entitled to a particular lot under the final decree and that Michael

Fernando is a son of the said John Fernando. Hence, it could be seen that even though

the deeds produced by the defendants do not offend the Provisions of section 66 of the

Partition Act and its objectives, nevertheless no rights can pass automatically on those

deeds without proof of heirship. This would make it abundantly clear that Mike Fernando

has not been declared entitled to an undivided 1/6th share of lot 3 to enable the

contesting defendants to avail of the pending partition deeds to acquire rights from and

out of lot 3, in contrast to the acquisition of rights from and out of lots 15 and 22.

210

As regards lots 15 and 22 one cannot think of any such impediment in the way of the

contesting defendants. It cannot be argued that Michael Fernando is not directly entitled

to the said lots in terms of the interlocutory decree and final decree entered in the case.

As such it was within the power of Michael Fernando to dispose of his rights without

infringing the provisions of section 66 of the Partition Act by assignment of right, title

and interest that he would be declared entitled to in the partition action. As such

dispositions made by deeds produced by defendants cannot stand in the way of their

right to acquire of rights in lots 15 and 22.

At this stage it is necessary to emphasize that Michael Fernando along with 5 others are

deemed to have been allotted lot 3 in terms of section 48 (6) of the Partition Act. Here,

the clear distinction that arises is that Michael Fernando was allotted lots 15 and 22 by

the final decree in the former partition action and is deemed to have been allotted lot 3

along with 5 others. Significantly, Michael Fernando has only transferred hisright title

and interest that are to be allotted in the partition action and not the right title and

interest deemed to have been allotted under section 48 (6) of the Partition Act.

(Emphasis added to demonstrate the weight attached to direct allotment of shares as

opposed to allotment of shares under the deeming provision). This distinction clearly

shows that Michael Fernando had no intention to part with the rights he was to get under

section 48

(6) but manifestly intended in no unmistakable terms to pass undivided interest from

and out of the right, title and interest he was to be declared entitled to under the

partition decree, which culminated in his being unconditionally declared entitled to lots

15 and 22.

As spelled out above, at the most the contesting defendants can only claim their share

from Michael Fernando only against lots 15 and 22. As such the claim of the contesting

defendants as far as lot 3 is concerned should necessarily fail. The resultant position

therefore would be that the learned district Judge’s findings cannot be critically looked

at, except that he should have refrained himself from declaring the deeds produced by

the contesting defendants as being obnoxious to the prohibition imposed by section 66 of

the Partition Act. As stated above it is my considered view that the deeds in question are

absolutely valid and perfectly in order except that no title passes on to the contesting

defendants upon those deeds in as much as the subject matter is concerned. As it is

211

quite evident from the words employed by the notary in those deeds, Michael Fernando

has in fact transferred his right, title and interest that he would be declared entitled to

and such dispositions are only referable to lots 15 and 22 to which he has been in fact

directly declared entitled to.

For the foregoing reasons, it is my considered view that the appellant is not entitled to

succeed in his appeal. Consequently, the petition of appeal of the 18th defendant-

appellant is hereby dismissed subject to costs.

Sgd.


END OF THE JUDGMENT

OTHER

DETAILS

Rohan Sahabandu for 18th defendant-appellant and S.W.Premaratna for the

plaintiffrespondent.


CA Appeal No 518/98 (F) D.C. Kalutara 6177/P

Susil Harischandra, 18,Kuda Magalkanda, Maggona 18th defendant-appellant Gallage Leelawathie Fernando, 357, Gnegoda Aluthgama. Plaintiff-respondent.

KWK/-

[1] 109.63 perches

[2] 1986 2 CALR 217

212

PARTITION-INVESTIGATION OF TITLE

CA 75/97F

DC Kuliyapitiya : 6231/P

Nuwara Paksha Pedige Gunadasa,

1Defendat-Appellant

Vs

Nuwara Paksha Pedige Peruma,


Nuwara Paksha Pedige Laisa,

2nd Defendant-Respondent


213

Counsel: Bimal Rajapakse with Ravindra Anavaratna for the

plaintiffressondent.

Argued: 03.03.2011

Decidedon:04.03.2011

A W Abdus Salam, J.

This appeal has been preferred against the judgment dated 11 December 1996 of the

district judge of Kuliyapitiya. By the said judgment the learned district judge held interalia

that the corpus has been depicted in the preliminary plan dated 4 November 1981 made by

A B M Veber, licensed surveyor and commissioner of court. Further it was decreed that the

corpus be partitioned in the proportion of 1/2 to the plaintiff and 1/2 to the 2nd defendant.

The 1st defendant claimed 1/2 share of the subject matter but he was not allotted any such

share. Being aggrieved by the said judgment, the 1st defendantpreferred the present appeal.

The learned district judge in his judgment has correctly analyzed the evidence and come to

the conclusion that the corpus has been properly identified by the plaintiff by document

marked X, namely the preliminary plan referred to above and allotted shares to the plaintiff

and 2nd defendant.

The position maintained by the 1st defendant was that the original owner of the land to be

partitioned was one Bandiya who according to the plaintiff had died leaving as his intestate

heirs Hapuwa and Hethuwa.

The 1st defendant claimed an undivided 1/2 share of the corpus on deed No 30519 dated 27

March 1978. However, according to the plaintiff Bandiya, the original owner of the subject

matter by deed No 21831 dated 17.08. 1969 has transferred an undivided 1/2 share to the

2nd defendant. As such the 1st defendant cannot maintain that he has acquired 1/2 share

of Bandiya. This deed conveys no title by reason of Bandiya having exhausted his rights on

an earlier deed No 21831. In the circumstances, the 1st defendant has no cause to complain

and as such this appeal deserves no favourable consideration.

Appeal dismissed. No costs.

Sgd.


214

PARTITION-IDENTITY OF THE CORPUS-

C.A : 819/96 F

D.C Kalutara: 6217P

Mahabaduge Clera Fernando, Galle Road, Polkotuwa, Beruwala

3rd Defendant Appellant

Vs

1. Weerawarnakula sooriya Boosa Baduge Daisy Matilda

Fernando, 8, Polkotuwa, Beruwala

2. Weerawarnakula sooriya Boosa Baduge Reeni Prasida

215

Fernando, 8, Polkotuwa, Beruwala

.

Plaintiff-Resplendents

1. Jusecoora Mohotti Fernanado, Galle Road, Polkotuwa,

Beruwala

Mahabaduge Francis Fernando, Galle Road, Polkotuwa, Beruwala

Defendant Respondents


Counsel: Collin A Amarasingha for substituted 3rd

defendantappellant and Rohan Sahabandu for plaintiff respondent.

Argued on: 11.06.2010 and 03.08.2010.

Written Submissions Filed on: 30.09.2010.


A W Abdus Salam, J.

216

his is an appeal by the 3rd defendant allowing the Partition of the

land consisting of Lots C1 and D of “Polkotuwewatta Pawula

Owita”. The two plaintiffs are sisters. They claimed that the action

is for the partition of the corpus shown in plan No 1608 dated 19

February

1970 made by H Wijesundera, Licensed Surveyor, filed of record in

DC Kalutara P 3228. It is common ground that the corpus in the

present action was excluded in that action. For purpose of this

action the corpus consisting of lots C1 and D of Polkotuwewatta

Pawula Owita is depicted in the preliminary plan No 288 dated 23

August

1993 made by K D L Wijenayaka, Licensed Surveyor and Court

Commissioner as C1 and D.

According to the plaintiffs the original owner of the corpus was one

Mariyanu Fernando who died leaving behind four children, each

child inheriting ¼ share. The last child named Andiris Fernando

having inherited ¼ share from his mother had by deed No 10038

dated 2 February 1910 transferred his rights to Gardenia Fernando

217

who died leaving the 2nd and 3rd defendants who thus became

entitled to an undivided 1/8 share each.

The undivided rights of the other three children of Marianu

Fernando devolved on the plaintiffs and the 1st defendant.

Accordingly, in terms of the plaint the devolution of title of the

original owner was set out to be as follows…

1st plaintiff - 8/24

2nd plaintiff - 8/24

1st defendant - 2/24

2nd defendant - 3/24

3rd defendant - 3/24

It was only the 3rd defendant who filed a statement of claim in

opposition to the plaint. However in her statement of claim the 3rd

defendant did not contest the identity of the corpus set out in the

plaint and depicted in the preliminary plan. She specifically pleaded

in her statement of claim that the devolution of title shown by the

plaintiff does not relate to the land in question and that she alone

was in exclusive possession of the corpus and had acquired a valid

prescriptive title. The 3rd defendant therefore sought a dismissal of

218

the partition action on that ground. At the trial the plaintiff gave

evidence and closed his case reading in evidence documents marked

X, XI and PI to P8. None of the defendants gave evidence at the trial

nor did they call any witnesses to testify on their behalf. They did

not produce any documents either.

The learned district judge after considering both oral and

documentary evidence adduced at the trial came to the conclusion

that the allotments of land sought to be partitioned by the plaintiffs

are lots C1 and D of “Polkotuwewatta Pawula Owita” as depicted

in plan No 288 made by K D L Wijenayaka, Licensed Surveyor and

Court Commissioner. He rejected the contention of the 3rd

defendant that she had acquired a prescriptive title to the corpus.

Accordingly, the learned district judge entered interlocutory decree

and allotted undivided shares to the parties as set out in the plaint

and directed that the land be partitioned among them accordingly.

As far as this appeal is concerned, one area of contention was the

alleged improper identity of the corpus. The learned counsel of the

3rd defendant contended that the corpus had no fences or other

219

physical boundaries on the ground to identify its limits. He has

further submitted that part of the permanent buildings marked d2

and a2 on the corpus where the rest of the said buildings are found

in the adjoining land to the West and claimed by the 3rd defendant

are suggestive of the corpus being part of a larger land possessed by

the appellant. In other words the learned counsel has made the

persistent attempt to show that there has been no proper

investigation by the learned district judge as to the proper identity

of the subject matter which he says is only a part of a larger land. In

this context he has highlighted the discrepancies with regard to

certain boundaries arising as between the schedule to the plaint and

some of the deeds produced by the plaintiffs. His position is that the

North, South and West of the land and the boundaries given in the

schedule to the plaint are different from some of the documents

produced at the trial.

Arising on this contention it must be observed that from the very

inception the 3rd defendant has represented matters that the corpus

identified by the plaintiff in the plaint and also in reference to the

preliminary plan is faultless. She does not dispute the assertion of

220

the plaintiff that the corpus in this case had been excluded in the

earlier partition action. Furthermore, she claims that it was at her

instance the exclusion was made in the earlier partition action. She

has not elected to point out to the surveyor at the preliminary

survey that the subject matter is a part of a larger land or not an

independent entity or different from what has been described in the

schedule to the plaint. Above all she had categorically admitted that

the land sought to be partitioned has been correctly depicted in the

preliminary plan. She did not raise any points of contest touching

upon the identity of the corpus either. No commission has been

taken out by the

3rd defendant to substantiate a different position with regard to the

identity of the corpus proposed by the plaintiffs. She neither called

witnesses to establish a different position as regards the identity of

the corpus nor did she elect to testify herself on that matter. In the

circumstances, it is hardly possible to accept her contention that the

land sought to be partitioned is in fact is not the same as what the

plaintiffs represented it to be in the plaint and the document

marked as X.

221

In this respect, I think what has been pointed out by the plaintiff in

relation to the investigation of title which need to be limited to

pleadings, admissions, points of contest, and evidence both oral and

documentary should be equally made applicable to the question of

identification of the corpus as well, unless very strong grounds are

urged to step outside the case presented by both parties. As has been

pointed out by the plaintiff the court cannot go on a voyage of

discovery tracing the title and find the shares in the corpus for the

parties. In the same manner it is practically impossible for the court

to engage on a wild goose chase in the ascertainment of the identity

of the subject matter, when the parties have provided nothing to the

contrary. Quite surprisingly the pleadings, evidence and the

preliminary plan point to the accuracy of the subject matter in

respect of which 3rd defendant has sought a declaration of title in

her favour based on long and uninterrupted prescriptive possession.

For the foregoing reasons, I am not inclined to endorse the view

voiced on behalf of the 3rd defendant regarding the alleged lack of

proof of the subject matter.

222

As stated above, it was only the 1st plaintiff who gave evidence at

the trial. The case of the plaintiff was closed reading in evidence

documents marked X, X 1 and P1 to P8. There was no other

evidence available to adjudicate on the matter as none of the

defendant chose to adduce any proof to the contrary. The learned

district judge was therefore left with the evidence of the 1st plaintiff

and her documents. In the circumstances, I cannot find any basis to

interfere with the judgment of the learned district judge with regard

to the devolution

of title.

One of the important matters that loomed large in the presentation

of the case for the 3rd defendant was the claim of prescriptive title.

The relevant point of contest reads as " by reason of the long and

prescriptive possession whether the 3rd defendant had acquired a

prescriptive title to lots C1 and D depicted in plan No 288?". In

terms of the document marked as P5 (the interlocutory decree

entered in partition action No P 3228) the subject matter of this

action has been excluded on 31 March 1977. This partition action

has been filed on 27 April 1993. The deed of transfer 10038 dated

223

2nd December 1910 by which Gardian Fernando has derived title

refers to an undivided 1/4 share of the corpus. The 2nd and 3rd

defendants are children of the said Gardian Fernando and thus by

paternal inheritance became entitled to 1/8 share each.

The uncontroverted testimony of the 1st plaintiff which has been

accepted by the learned district judge points to the subject matter as

being co-owned by the plaintiffs and the three defendants. The

surveyor's report shows that the improvements other than buildings

A2, B, C and D2 have been claimed and counter claimed by the

plaintiffs and the defendants. No points of contests have been

suggested with regard to the improvements. The learned district

judge has ruled that the improvements should be shared by the

parties as per surveyor’s report. The fact that the subject matter

has been excluded in the partition action by itself does not give rise

to any inference that the party sought the exclusion has acquired a

prescriptive title to it.

As a matter of fact the 3rd defendant in the earlier partition action

has sought the exclusion of the subject matter of the present action

224

on the basis that the original owner of it was Marianu Fernando.

Further the 3rd defendant in that action has clearly set out the

manner of devolution of the said original owner.

Undoubtedly an order for exclusion of a portion of a land from a

partition action does not operate as Res Judicata and such

exclusions are always made on the application of a party or exmero

motu but it does not create a title in favour of anybody. It is nothing

but a mere exclusion from the proposed corpus, even though title is

pleaded for purpose of seeking exclusion.

As regards the question of prescription claim by the 3rd defendant,

the learned district judge has investigated that claim on the basis

that the 3rd defendant was a co-owner. Very strangely the 3rd

defendant did not give evidence or produce any documents. As has

been correctly pointed out by the learned district judge the 3rd

defendant had failed to prove ouster by any overt act. In short there

has been no evidence led on behalf of the 3rd defendant as to any

manner of possession. In the circumstances, the investigation

carried out by the learned district judge in the light of the respective

225

cases presented by the parties appears to be quite satisfactory and

warrants no intervention of this court. As has been submitted on

behalf of the plaintiff the judgment of the learned district judge and

the reasons adopted by him are not at all perverse to be overturned

as cogent reasons have been adduced for his conclusion.

As such, I see no merits in this appeal. Appeal dismissed subject to

costs.


Kwk/-

PARTITION-EFFECT OF EXCLUSION-RES

JUDICATAEVIDENCE REQUIRED TO ACQUIRE

PRESCRIPTIVE TITLE TO A LOT EXCLUDED IN AN

EARLIER PARTITIONN CASE

226

The uncontroverted testimony of the 1st plaintiff which has

been accepted by the learned district judge points to the

subject matter being co-owned by the plaintiffs and the

three defendants. The surveyor's report shows that the

improvements other than buildings A2, B, C and D2 have

been claimed and counter claimed by the plaintiffs and the

defendants. No points of contests have been suggested

with regard to the improvements. The learned district

judge has ruled that the improvements should be shared

by the parties as per surveyor’s report. The fact that the

subject matter has been excluded in the partition action by

itself does not give rise to any inference that the party

sought the exclusion has acquired a prescriptive title to it.

EXCLUSION IN PARTITION ACTION a portion of a land

does not operate as Res Judicata and such exclusions are

always made on the application of a party or ex mero

motu but it does not create a title in favour of anybody. It

is nothing but a mere exclusion from the proposed corpus,

even though title is pleaded for purpose of seeking

exclusion

A W Abdus Salam, J.

This is an appeal by the 3rd defendant allowing the

Partition of the land consisting of Lots C1 and D of

“Polkotuwewatta Pawula Owita”. The two plaintiffs are

sisters. They claimed that the action is for the partition of

the corpus shown in plan No 1608 dated 19 February 1970

made by H Wijesundera, Licensed Surveyor, filed of record

227

in DC Kalutara P 3228. It is common ground that the

corpus in the present action was excluded in that action.

For purpose of this action the corpus consisting of lots C1

and D of Polkotuwewatta Pawula Owita is depicted in the

preliminary plan No 288 dated 23 August 1993 made by K

D L Wijenayaka, Licensed Surveyor and Court

Commissioner as C1 and D.

According to the plaintiffs the original owner of the corpus

was one Mariyanu Fernando who died leaving behind four

children, each child inheriting ¼ share. The last child

named Andiris Fernando having inherited ¼ share from his

mother had by deed No 10038 dated 2 February 1910

transferred his rights to Gardenia Fernando who died

leaving the 2nd and 3rd defendants who thus became

entitled to an undivided 1/8 share each.

The undivided rights of the other three children of Marianu

Fernando devolved on the plaintiffs and the 1st defendant.

Accordingly, in terms of the plaint the devolution of title of

the original owner was set out to be as follows…






228

It was only the 3rd defendant who filed a statement of

claim in opposition to the plaint. However in her statement

of claim the 3rd defendant did not contest the identity of

the corpus set out in the plaint and depicted in the

preliminary plan. She specifically pleaded in her statement

of claim that the devolution of title shown by the plaintiff

does not relate to the land in question and that she alone

was in exclusive possession of the corpus and had acquired

a valid prescriptive title. The 3rd defendant therefore

sought a dismissal of the partition action on that ground.

At the trial the plaintiff gave evidence and closed his case

reading in evidence documents marked X, XI and PI to P8.

None of the defendants gave evidence at the trial nor did

they call any witnesses to testify on their behalf. They did

not produce any documents either.

The learned district judge after considering both oral and

documentary evidence adduced at the trial came to the

conclusion that the allotments of land sought to be

partitioned by the plaintiffs are lots C1 and D of

“Polkotuwewatta Pawula Owita” as depicted in plan No 288

made by K D L Wijenayaka, Licensed Surveyor and Court

Commissioner. He rejected the contention of the

3rd defendant that she had acquired a prescriptive title to

the corpus. Accordingly, the learned district judge entered

interlocutory decree and allotted undivided shares to the

229

parties as set out in the plaint and directed that the land

be partitioned among them accordingly.

As far as this appeal is concerned, one area of contention

was the alleged improper identity of the corpus. The

learned counsel of the 3rd defendant contended that the

corpus had no fences or other physical boundaries on the

ground to identify its limits. He has further submitted that

part of the permanent buildings marked d2 and a2 on the

corpus where the rest of the said buildings are found in the

adjoining land to the West and claimed by the 3rd

defendant are suggestive of the corpus being part of a

larger land possessed by the appellant. In other words the

learned counsel has made the persistent attempt to show

that there has been no proper investigation by the learned

district judge as to the proper identity of the subject

matter which he says is only a part of a larger land. In this

context he has highlighted the discrepancies with regard to

certain boundaries arising as between the schedule to the

plaint and some of the deeds produced by the plaintiffs. His

position is that the North, South and West of the land and

the boundaries given in the schedule to the plaint are

different from some of the documents produced at the

trial.

Arising on this contention it must be observed that from

the very inception the 3rd defendant has represented

matters that the corpus identified by the plaintiff in the

230

plaint and also in reference to the preliminary plan is

faultless. She does not dispute the assertion of the plaintiff

that the corpus in this case had been excluded in the

earlier partition action. Furthermore, she claims that it was

at her instance the exclusion was made in the earlier

partition action. She has not elected to point out to the

surveyor at the preliminary survey that the subject matter

is a part of a larger land or not an independent entity or

different from what has been described in the schedule to

the plaint. Above all she had categorically admitted that

the land sought to be partitioned has been correctly

depicted in the preliminary plan. She did not raise any

points of contest touching upon the identity of the corpus

either. No commission has been taken out by the 3rd

defendant to substantiate a different position with regard

to the identity of the corpus proposed by the plaintiffs. She

neither called witnesses to establish a different position as

regards the identity of the corpus nor did she elect to

testify herself on that matter. In the circumstances, it is

hardly possible to accept her contention that the land

sought to be partitioned is in fact is not the same as what

the plaintiffs represented it to be in the plaint and the

document marked as X.

In this respect, I think what has been pointed out by the

plaintiff in relation to the investigation of title which need

to be limited to pleadings, admissions, points of contest,

and evidence both oral and documentary should be equally

231

made applicable to the question of identification of the

corpus as well, unless very strong grounds are urged to

step outside the case presented by both parties. As has

been pointed out by the plaintiff the court cannot go on a

voyage of discovery tracing the title and find the shares in

the corpus for the parties. In the same manner it is

practically impossible for the court to engage on a wild

goose chase in the ascertainment of the identity of the

subject matter, when the parties have provided nothing to

the contrary. Quite surprisingly the pleadings, evidence

and the preliminary plan point to the accuracy of the

subject matter in respect of which 3rd defendant has

sought a declaration of title in her favour based on long

and uninterrupted prescriptive possession. For the

foregoing reasons, I am not inclined to endorse the view

voiced on behalf of the 3rd defendant regarding the alleged

lack of proof of the subject matter.

As stated above, it was only the 1st plaintiff who gave

evidence at the trial. The case of the plaintiff was closed

reading in evidence documents marked X, X 1 and P1 to

P8. There was no other evidence available to adjudicate on

the matter as none of the defendant chose to adduce any

proof to the contrary. The learned district judge was

therefore left with the evidence of the 1st plaintiff and her

documents. In the circumstances, I cannot find any basis

to interfere with the judgment of the learned district judge

with regard to the devolution of title.

232

One of the important matters that loomed large in the

presentation of the case for the 3rd defendant was the

claim of prescriptive title. The relevant point of contest

reads as " by reason of the long and prescriptive

possession whether the 3rd defendant had acquired a

prescriptive title to lots C1 and D depicted in plan No

288?". In terms of the document marked as P5 (the

interlocutory decree entered in partition action No P 3228)

the subject matter of this action has been excluded on 31

March 1977. This partition action has been filed on 27 April

1993. The deed of transfer 10038 dated 2nd December

1910 by which Gardian Fernando has derived title refers to

an undivided 1/4 share of the corpus. The 2nd and 3rd

defendants are children of the said Gardian Fernando and

thus by paternal inheritance became entitled to 1/8 share

each.

The uncontroverted testimony of the 1st plaintiff which has

been accepted by the learned district judge points to the

subject matter being co-owned by the plaintiffs and the

three defendants. The surveyor's report shows that the

improvements other than buildings A2, B, C and D2 have

been claimed and counter claimed by the plaintiffs and the

defendants. No points of contests have been suggested

with regard to the improvements. The learned district

judge has ruled that the improvements should be shared

by the parties as per surveyor’s report. The fact that the

subject matter has been excluded in the partition action by

233

itself does not give rise to any inference that the party

sought the exclusion has acquired a prescriptive title to it.

As a matter of fact the 3rd defendant in the earlier

partition action has sought the exclusion of the subject

matter of the present action on the basis that the original

owner of it was Marianu Fernando. Further the 3rd

defendant in that action has clearly set out the manner of

devolution of the said original owner.

Undoubtedly an order for exclusion of a portion of a land

from a partition action does not operate as Res Judicata

and such exclusions are always made on the application of

a party or ex mero motu but it does not create a title in

favour of anybody. It is nothing but a mere exclusion from

the proposed corpus, even though title is pleaded for

purpose of seeking exclusion.

As regards the question of prescription claim by the 3rd

defendant, the learned district judge has investigated that

claim on the basis that the 3rd defendant was a co-owner.

Very strangely the 3rd defendant did not give evidence or

produce any documents. As has been correctly pointed out

by the learned district judge the 3rd defendant had failed

to prove ouster by any overt act. In short there has been

no evidence led on behalf of the 3rd defendant as to any

manner of possession. In the circumstances, the

investigation carried out by the learned district judge in the

light of the respective cases presented by the parties

appears to be quite satisfactory and warrants no

234

intervention of this court. As has been submitted on behalf

of the plaintiff the judgment of the learned district judge

and the reasons adopted by him are not at all perverse to

be overturned as cogent reasons have been adduced for

his conclusion.

As such, I see no merits in this appeal. Appeal dismissed

subject to costs.

Sgd.


FURTHER DETAILS

Mahabaduge Clera Fernando,


Vs

1. Weerawarnakula sooriya Boosa Baduge Daisy Matilda

Fernando,

2. Weerawarnakula sooriya Boosa Baduge Reeni Prasida

Fernando.

Plaintiff-Resplendents

1. Jusecoora Mohotti Fernanado

END OF THE JUDGMENT

C.A : 819/96 F

D.C Kalutara: 6217P

235

2. Mahabaduge Francis Fernando, Defendant Respondents

Collin A Amarasingha for substituted 3rd

defendantappellant and Rohan Sahabandu for plaintiff

respondent. Decided on: 17.01.2011

Kwk/-

PARTITION REVISION DELAY IN FILING THE APPLICATION

C.A. No. 1409/2000


Jayasekera Aratchilage Pemawathie

Substituted 1st Defendant Petitioner Vs.

1. Herath Mudiyanselage Malani Sunanda



Counsel : S.N. Vijithsingh for the Petitioner, Rohan Sahabandu for

Plaintiff-Respondent and Dr. S.F.A. Coorey for the 3rd and

4th Respondents.

Argued on : 21/06/2010

Decided on : 14/02/2010

236


This is an application by the Substituted 1st Defendant-Petitioner to revise the judgment and the

interlocutory decree entered in the above partition action on 31/01/2000. The Substituted

1stDefendant – Petitioner has filed a statement of claim and participated at the trial. Admittedly, she

has not preferred an appeal within the stipulated period of time. This revision application has been

filed as she had not been able to prefer such an appeal. The impugned judgment of the learned

District Judge has been delivered on 31/01/2000 and the revision application has been filed on

28/11/2000 nearly 10 months after the pronouncement of the judgment. The petitioner in her re-

attempt to account for the delay states in the petition that she lost her husband soon after the marriage

and she looked after her parents until disaster struck with the death of the father. This, had resulted

in the mother having become incapacitated and her sister also met with a serious accident. This event

the petitioner claims had led to a state of stress and finally she too suffered mental depression

according to the petitioner above circumstances had led to a situation where she was not able to file

an appeal. In order to support this position she has produced medical certificate from the Consultant

Physician dated 07/12/2000 marked as P15.

As has been submitted on behalf of the 3rd and 4th Defendant-Respondents the medical certificate ‘P15’ appears

on the face of it to have been issued by a doctor who cannot be considered as not being biased towards the

petitioner. The contents of ‘P15’ are self explanatory in this respect. To quote some of the relevant parts of the

medical certificate is necessary at this stage. It reads as follows.

“Premawathie is a victim of sad circumstances. Her husband died soon after the marriage. She

looked after her elderly parents until disaster struck with her. Death of her father in April 1999. Her

mother was bed-ridden with a paralytic illness. In this slow and retarded state of mind she failed to

attend

Courts for a partition case. . . . . . I beg Court to grant her reprieve and pardon for her failure to attend

Court procedure as due to lapse in memory cause by the depression illness”

‘P15’ does not show as to whether the Author had examined the petitioner or treated for any illness

expected to narrate the back ground in which the petitioner had lost adequate motivation to attend to

her affairs. Further, the medical certificate is worded in such a way to give a narration of the factual

matters which the Author could not have reasonably expected to have known with one stand

information.

As supposed to ‘P15 the respondents have filed a report of the Grama Niladari of the area marked as

‘Z2’ wherein it is stated that the petitioner had been in a state of proper mental condition and that she

attend to affairs without any hindrance from January 2000 to date. This document of the Grama Seva

Niladari has not been seriously contested by the petitioner. Hence, it appears that the long delay in

filing the revision application has not been satisfactorily accounted by the petitioner. On account to

this non explained delay alone this application can be decided. Accordingly, for failure to invoke the

revisionary jurisdiction without delay this application should stand dismissed. There shall be no

costs.

237


NT/-

PARTITION- NON SERVICE OF SUMMONS- SHOULD THE ID BE SET ASIDE-CONSIDERATION

APPLICABLE

Failure to serve summons is a failure which goes to the

root of the jurisdiction - Service of summons CONFERS

jurisdiction TO RESOLVE THE DISPUTE. It is well settled

law that judgments entered without service of

summons

is a nullity. However, the decision in the case of

Ittapana

cannot be said to apply to the facts of this case to

justify

the order of court setting aside the interlocutory

decree.

Salem Vs. Salim 69 NLR 492 EMPHASISES THAT a

court

of justice will not permit a suitor to suffer by reason of

its OWN wrongful act and that it is under a duty to use

its inherent power to repair the injury done by its own

act. Sivapathalingam vs. Sivasubramaniam 1990 1 SLR

378 HAS LAID DOWN that a court whose act has

caused

injury to a suitor has an inherent power to make

238

restitution. This power is exercisable not only by the

Appellate Court but by the court which exercises

original

jurisdiction as well. FUNDERMENTAL

VICE.

F

CA Appeal No. 709/99 (F)


Bulathsinghala Appuhamilage

Shavin Nona

Ehala Kadigamuwa,

Ehala Kadigamuwa (Postal)

4A Defendant-Appellant

Vs.

Pathiraja Mudianselage Karunaratne Wickramasinghe Pathirana,

Kallegegethara,

Athungahakotuwa


2. Hettikakanamlage Jayatilaka Ehala Kadigamuwa,

Ehala Kadigamuwa (Postal)

3. Lanka Mudalige Wijerante Tharana uduwela.

Koswatta Junction (Postal)

4. Lanka Mudalige Wickramasinghe Tharana Uduwela

Koswatta Junction (Postal)

5. Wijesinghe Mudalige Jayasinghe Siriwardena, Ehala Kadigamuwa (Postal)

6. Udugampolage Grace Fernando,

239

Kolinjadige (Postal), Wennappuwa.

7. Warnakulasuriya Arachchige Simon Markas Fernando

Potupitiya (Postal)

8. Madumi Susila Fernando Potupitiya (Postal)

Wadduwa North

9. Pacsha Silima Fernando

10. Kolinjadige (Postal)

Wennappuwa.

Before : A.W.A. SALAM,J.

Counsel : Asoka Gunawardana for the Plaintiff-Respondent

and 3A Defendant-

Respondent

G.R.D. Obeysekera for the 4 A

DefendantAppellant

Written Submissions tendered : 4 A DefendantsAppellant

– 23/1/2006

240

sions tendered : both Plaintiff-Respondent and 3A Defendant-

Respondent - 21/3/2006

28.1.2005 and 11/2005

4/7/2007.

The plaintiff respondent (hereinafter referred to as “the plaintiff”) instituted action, to

partition the subject matter of the action, a month the 1st to 3rd defendant – respondents

(hereinafter collectively referred to as “the defendants’) and himself. The defendants did

not file any statements of claim and the trial proceeded exparte against them. The

subject matter of the action, as per preliminary survey plan No. 1 139 dated 28.2.1984

made by W.C.M. Abeysekara licensed surveyor and commissioner of court, was identified

as Lot 1, in extent 12 acres and 02 Roods.

At the trial the preliminary plan was marked as “X” and the report annexed to it as “Y”.

At the conclusion of the trial the learned district Judge held inter alia that the corpus, as

identified in X is in extent 12 Acres and 2 roods. Relying on the evidence of the plaintiff

the leaned District Judge, allotted undivided shares in the following manner.

Plaintiff - 5 Acres 3 Roods

1st defendant - 3 Acres 3 Roods

2nd defendant ` - 1 Acre 0 Roods

3rd defendant - 2 Acres 2 Roods

__________________________________________

241

Total - 12 Acres 2 Roods

Accordingly, interlocutory decree was entered to partition the land

Depicted in plan ‘X’ and commission was issued to R.E.B Navaratne, Licensed Surveyor

to partition the land, In terms of the judgment, the entire land sought to be

partitioned, consisted of 2000 perches in extent as per plan X. The fractional shares

equivalent to the specified undivided extent allotted to the parties should work out as

follows. __________________________________________________________

Party Fraction allotted extent of undivided

shares

__________________________________________________________

Plaintiff 920/2000 5 acres 3 roods

1st defendant 600/2000 3 acres 3 roods

2nd defendant 160/2000 1 acres 0 roods

3rd defendant 320/2000 2 acres 0 roods

____________________________________________________________

Total 2000/2000 12 acres 02 roods

____________________________________________________________ R.E.B.

Navaratne, Licensed surveyor, reported his inability carry out the partition, as the

physical extent of the land sought to be partitioned was 12 Acres and 37 Perches. The

extent given in the preliminary plan No. 1139 was 12 Acres and 02 Roods. Even so, on a

perusal of the case record it appears that R.E.B. Navaratne Licensed surveyor, has

suggested a scheme of partition, proportionate to the undivided extent allotted to the

parties in the interlocutory decree, taking the extent of the corpus as 12 Acres and 37

Perches. The scheme of partition made by R.E.B. Navaratne, Licensed Surveyor I 1198

dated 30th January 1987. According to the scheme of partition the allotments of land to

be

Given to them varied in extent from the actual undivided extent of land, allotted in the

interlocutory decree, as the corpus fell short of 1 rood and 3 perches, than what the

parties intended it to be. The resultant position can be shown comprehensively in

tabular form, with a view to make certain the problem confronted by the trial judge, as

below.

242

Party Extent as per

Interlocutory

decree

Fractional

Share as per

I.D

Extent

given in

Scheme of

Partition

Fractional

Shares as

per Scheme

Difference

in extent

Plaintiff 5A–3R – 0 P 920/2000 5A-2R-

21.6P

920/2000 0 A- 0R –

18.4P

1 Deft. 3A-3R-0P 600/2000 3A-2R-

28P

600/2000 0A-0R-

12.0P

2Deft 1A-0R-0P 160/2000 0A-3R-

36.8 P

160/2000 0A-0R-

3.20P

3Deft 2A-0R-oP 320/2000 1A-3R-

33.6P

320/2000 0A-0R-

06.4P

TOTAL 12a-2r-0p 2000/2000 12a-1R-0P 2000/2000 0A-0R-40

P

It would be seen from the above table that the entirety of the corpus was different in

extent only by 1 rood and 3 perches as a result of the miscalculation of the extent of the

land depicted in the preliminary plan. To avoid the confusion resulting from the

discrepancy the commissioner who was entrusted with the task of dividing the land has

put the matter right by determining the exte3n, 43 perches less than what has b been

inadvertently shown in the preliminary plan. Taking undivided extent of the area allotted

in the interlocutory decree to each party as being corresponding to 920/2000,

600/2000, 160/2000 and 320/2000 fractional shares, the commissioner R.B.M.

Navaratne drew up a scheme of partition, suggesting the plaintiff 18.4 perches, 1st

defendant 12.0 Perches, 2nd defendant 3.20 perches and the 3rd defendant 06.4

perches less than what they otherwise would have entitled to, under the interlocutory

decree.

Nevertheless, the trial judge without taking into consideration the scheme of partition

suggested by R.B. Navaratne licensed surveyor, on 9.9.1986, set-aside the interlocutory

243

decree, following an application made by the plaintiff, on the basis that the division of

the land was unfeasible due to the difference in the extent, which came to light in the

course of the preparation of the plan of partition. In the same application, the plaintiff

further requested for permission to rectify the extent inadvertently inserted in the

preliminary plan as 12 acres and 2 roods to read as 12 acres and 37 perches. Pursuant

to this W.C.M. Abeysekara licensed surveyor who carried out the preliminary survey

submitted plan No. 1139 amending the extent to read as 12 acres and 37 perches. By

this time he interlocutory decree entered in the case on 12.12.1984 had been r

registered in the land Registry and a copy of it has been also forwarded to Court.[1]

Having thus entered the interlocutory decree declaring the entitlements of the undivided

rights of each party to the land sought to be partitioned, the learned district judge

proceeded to set-aside the same, on the basis that it is unfeasible to divide the land due

to the erroneous calculation of the extent, totally disregarding the scheme of partition

suggested by the Commissioner who had been called upon to divide the land, on the

strength of the interlocutory decree.

The present appeal has been preferred by the 4th defendant appellant. (Hereinafter

referred to as the appellant) The petition of appeal has been formulated mainly on two

strong grounds. The first of such ground, relied upon by the appellant relates to the

impropriety of the order made by the learned district judge setting aside the

interlocutory decree at a stage when he was not sufficiently clothed jurisdiction to do so

and the second ground is based on the non-production of an important deed through

which the plaintiff derives title. It is the contention of the appellant that the order setting

aside the interlocutory decree is a nullity and therefore the second trial and all what took

place thereafter should be set aside.

As regards the second ground, it is submitted that the district Judge could not have

possibly allotted any rights to the plaintiff by reason of the non-production of deed no.

3770 dated 6.6.1981 attested by S.M. Dhanapala, Notary Public, an important deed

through which the plaintiff derives the plaintiff derives title.

With reference to the first ground relied upon by the plaintiff, it is appropriate to advert

to section 48 of the Partition Act, which empowers the court to set aside or amend an

244

interlocutory decree under certain specified restricted circumstances. For purpose of

easy reference, section 48 of the Partition Act, in so far as is applicable to the present

case is produced below.

48. (1) save as provided in sub section (5) of this section, the interlocutory decree

entered under section 26 and final decree of partition entered under section 36 shall,

subject to the decision of any appeal which may be preferred there from , and in the

case of an interlocutory decree, subject also to the provision of sub section (4) of this

section, be good and sufficient evidence of the title of any person as to any right share

or interest awarded therein to him and be final and conclusive for all purposes against all

persons whomsoever, whatever right, title or interest they have, or claim to have, to or

in the land to which such decree relates and notwithstanding any omission or defect of

procedure or in the proof of title adduced before the court or the fact that all persons

concerned are not parties to the partition action.; and the right, share or interest

awarded by such decree shall be free from all encumbrances whatsoever other than

those specified in that decree.

The learned counsel of the plaintiff has submitted that the error appearing in the

preliminary plan could not be attributed under any circumstances to the parties, since

the preliminary plan has been prepared at the instance of the court. Counsel submits

that the error can only be classified as an act of court and the parties should not be

made to suffer its consequences. In this regard Counsel relies on the legal Maxim actus

neminem gravabit (an act of court shall prejudice no man). To substantiate this

argument he has cited the judgment in the case of ittapana Vs Hemawawathie reported

in 1981 1 SLR 476, which laid down that he failure to serve summons is a failure which

goes to the root of the jurisdiction and that it is only be service of summons the court

gets jurisdiction over the defendant. It is well settled law that judgments entered without

service of summons is a nullity. However, the decision in the case of Ittapana cannot be

said ton apply to the facts of thi9s case to justify the order of court setting aside the


Learned Counsel of the plaintiff has also cited the case of Salem Vs. Salim 69 NLR 492 to

impress upon the application of the proposition that a court of justice will not permit a

245

suitor to suffer by reason of its OWN wrongful act and that it is under a duty to use its

inherent power to repair the injury done by its own act.

In the case of Sivapathalingam vs. Sivasubramaniam 1990 1 SLR 378 it was held that a

court whose3 act has caused injury to a suitor has an inherent power to make

restitution. This power is exercisable not only by the Appellate Court but by the court

which exercises original jurisdiction as well.

In my judgment the above authorities cited by the learned Counsel for the plaintiff,

undoubtedly strengthen the argument that the trial court was sufficiently clothed with

jurisdiction to correct its own mistake by setting it right its own arithmetical errors. Yet

what is to be born in mind is that the power so conferred on the trial judge to correct a

clerical or arithmetical mistake arising from any accidental slip or omission does not

extend to the degree of setting aside its own judgment or decree. In the case of an

interlocutory decree the prohibition against setting aside of its own decree has been

viewed with a high degree of inflexibility both by the legislature and courts. The

circumstances, in which the Distinct Court is empowered to set aside an interlocutory

decree are spelt out under section 48(4) © (d), & (e) of the Partition Act. As such, the

circumstance that arose in this case did not warrant nor did it empower the court to set

aside the interlocutory decree.

Somawathie Vs. Madawala and others 1983 SLR Vol. 2 pages 15 is a landmark

Judgment in which the Supreme Court referred to the extra ordinary powers of revision

set aside partition decrees when it is found that the proceedings are tainted with what is

known as fundamental vice. The judgment and interlocutory decree in this case are not

tainted with any such patent defects, to take cognizance.

As revealed in this case, it has not given rise to a situation contemplated under section

48, © (d) & (e), to a set aside the interlocutory decree, as was done by the trial judge,

in obvious violation of Section 48 of the Partition Act. In the circumstances, the order of

the learned district judge setting aside the interlocutory decree cannot in law be allowed

to remain.

246

As the second purported interlocutory decree entered by the trial judge should be

deemed as never having been entered, the contention regarding the impropriety of the

second interlocutory decree, arising from the non production of P1 at the abortive trial,

does not arise for consideration.

For the foregoing reasons, the order of the learned district Judge dated 9the of

September 1986, setting aside the interlocutory decree entered on 12th December 1984

is setaside. Consequently, proceedings recorded from 19th July 1993, judgment and

interlocutory decree both dated 24th August 1999 are also set aside. I make no order as

to costs.

Sgd./Judge of the Court of Appeal.

NP/-

I do hereby certify that the foregoing is a true copy of the judgment dated 4th July 2007

filed of record in CA Appeal No. 709/99 (F)


Typed by :

Compared with:

[1] Journal entry No. 16 of 13.3.1985

PREMAYAMENT ORDER- NON COMLIANCE- SCHEME OF PARTITION

247

CA. 1320/96 (F).

C. Matara 15570/P '

Balasooriyage Amaradasa, Medakoratuwa, 3

Defendant-Appellant.

Vs.

Weerabaddane Wijeratne Mendias, Radawela,

Plaintiff-Respondent (deceased)

BEFORE: A W A SALAM, J

COUNSEL: Rohan Sahabandu for the 3rd Defendant

Appellant and B.U.P. Jayawardane for the Plaintiff Respondents.

ARGUED ON: 26.04.2012.

A.W.A. Salam, J.

This is an appeal preferred against the order of the learned District Judge of

Matara confirming the scheme of partition bearing No. 4506 of S.L.

Galappaththy Licensed Surveyor and Commissioner of Court. The facts

briefly are that the learned District Judge having entered interlocutory decree

to partition the land which is the subject matter of the action, scheme of

partition was prepared and forwarded to Court by the Commissioner which

the 3rd Defendant-Appellant opposed. Subsequently, inquiry was fixed with a

view to ascertain the reasonableness of the Commissioner’s plan. When the

inquiry came up on 30.08.1996 the Appellant moved for a postponement and

it was granted subject to the Appellant having to pay a sum of Rs. 750/- by

way of prepayment costs before 10.00 a.m. on the day the matter was re-

fixed for.

Finally, when the matter came up for inquiry on 24.09.1996 the 3rd

DefendantAppellant was absent and his Attorney-at- Law entered

appearance on his behalf. The Court having observed that the prepayment

order had not been honoured by the 3rd Defendant-Appellant proceeded to

confirm the scheme of partition aforementioned.

248

The principal argument advanced on behalf of the Appellant is that even in

the absence of the 3rd Defendant-Appellant, the Court was duty bound to

inquire into the objections of the 3rd Defendant-appellant before

confirmation of the scheme of partition. On a perusal of the order by which

the prepayment order had been imposed on the 3rd Defendant- Appellant, it

is quite clear that the consequences of noncompliance of the prepayment

order has been clearly laid down. The 3rd Defendant-Appellant has agreed

either expressly or by necessary implication as to the said consequences to

take place in case of default of the prepayment order.

In the circumstances the ground urged by the Appellant to avoid the

impugned order cannot be accepted. As such this appeal does not merit any

favourable consideration and therefore is dismissed subject to costs.

Judge of the Court of Appeal |

PARTITION- INVESTIGATION OF TITLE-MISDIRECTION

CA 04/97F DC Colombo 15256/P

2. W.A. Niluka Nilmini,

249

4. W.A.Premaratna, 2nd and 4th Defendant-Appellants Vs Arunawathie Dahanayaka, Plaintiff-

Respondent.

Before: AWA Salam J

Gamini Marapana PC with Navin Marapana, Tharanga Palliaguruge and

Harshula Seneviratna for the 2nd and 4th defendant appellants and Rohan

Sahabandu for the plaintiff-respondent..

Argued on: 23.06.2011

Decided on : 21.03.2012

A W A Salam, J

This is an appeal preferred by the 2nd and 4th defendant-appellants (appellants) from the judgment and interlocutory decree entered by the learned district judge directing the division of the corpus, among the parties whom he declared entitled to undivided shares, in the following mannered.

Plaintiff-1 Rood-7.75 perches and undivided 7/8 share

1st defendant-27.4 perches

2nd defendant-23.2 perches

3rd defendant-1/8 share

The background to the appeal briefly is that the plaintiff-respondent (plaintiff)

filed a partition action in respect of the land set out in the schedule to the plaint.

For purposes of the partition action, the corpus was depicted in the preliminary

plan No 38D dated 12.01.1992 made by the Commissioner H. Devasurendra,

L.S. The extent of the corpus admittedly is 3 roods and 18 perches which is

equivalent to 138 perches. The identity of the corpus was not disputed by the

parties.

The original ownership attributed to Lokuliyanage Publis Cabral did not give

rise to any disagreement either. Other facts admitted include the conveyance

made by the original owner in favour of Simon Cabral transferring the entire

land and the transfer of rights to Selina Violet Cabral (daughter) and Charles

Victor Cabral

(son in law) by Simon Cabral in the proportion of undivided ½ share each.

Undisputedly, the corpus being in extent of 138 perches Selina Violet Cabral

and Charles Victor Cabral became entitled to an undivided 69 perches each.

250

As regards the devolution of title, I propose to deal with the rights of Selina

Violet Cabral’s 69 perches and Charles Victor Cabral’s 69 perches separately.

It is a matter of record that during a certain period of time Selina and Charles

(Husband and wife) purported to convey divided lots of the subject matter,

despite the corpus having continued to be in the common ownership, although

under Registration of Documents Ordinance, the several lots dealt by them

featured at the land registry as defined allotments.

Admittedly, the rights of Selina Violet Cabral on a series of conditional

transfers have gone back and forth and finally on deed No 292 dated 24.01.1977

(P6) reverted to her. Initially therefore, it is convenient to examine the manner

in which her undivided rights extending to an area of 69 perches from and out of

the corpus had passed hands.

Selina Violet Cabral has by deed No 293 dated 24.1.1977 (1D1) conveyed two

divided lots aggregating to 27.4 perches to the 1st defendant and thereafter on

deed No 294 dated 11.2.1977 (2D1) to the 2nd defendant a divided extent of 23.2

perches rendering the total extent she parted with on 1D1 and 2D1 to 50.6

perches leaving her the balance entitlement from and out of the corpus to an

area of 18.4 perches.

Subsequently, Selina Violet Cabral once again gave a conditional transfer to one

Jayasena on deed No 548 dated 29.05.1979 purporting to convey an undivided

½ share from the west and regained title by right of purchase upon deed No 945

dated 17.11.1980. Thereafter the said Selina on the same day, transferred on

deed No 946 an undivided 1/2 share from the West of the corpus to the

plaintiff. Quite rightly the plaintiff concedes[1] that on deed No 946 aforesaid

she became entitled only to an undivided 18.4 perches from and out of the total

entitlement of Selina.

It is undisputed that the plaintiff having become entitled to an undivided 18.4

perches as aforesaid had transferred 1/4th share of 1/2 of the rights dealt in deed

No 946, i.e 1/4x1/2 of 18.4 perches = 2.3 perches to the 3rd defendant. By

reason of the transactions referred to above their undivided ½ share of Salina

would devolve on the parties as follows ...

Plaintiff 16.1 perches

1st defendant 27.4 perches

2nd defendant 23.2 perches

251

3rd defendant 02.3 perches

Total 69.00 perches

The need arises now to examine the manner in which the balance undivided half

share (69 perches) owned by the husband of Salina, namely Charles Victor

Cabral passed hand. In terms of paragraph 15 of the amended plaint Charles

Victor Cabral had died intestate leaving as his heirs Selina Victor Cabral

(widow) and Ranasirinal Cabral (son) who became entitled to an undivided 34.5

perches from and out of the corpus.

Salina and Ranasirinal aforesaid byked deed No 1800 dated 17.01.1984

produced at the trial marked as 2D2 purported to convey a divided lot in extent

of 20 perches to the appellants which in reality should be taken as a conveyance

affecting an undivided 20 perches. Having thus alienated 20 perches Salina and

Ranasirinal were left with 24.5 perches each, from and out of what they

inherited from Charles Victor Cabral.

Thus Salina and Ranasirinal being entitled to 24.5 perches each (49 perches in

aggregate) on deed 1188 dated 03.02.1986 (P10) conveyed an area in extent of 1

Rood and 7.75 perches which works out to 47.75 perches to the plaintiff.

The learned counsel of the plaintiff contended that had Charles Victor Cabral

died prior to the execution of deed 548 (P7) or later and if rei venditae et

traditae had been pleaded in respect of deed 946 (P9) it is possible to argue that

at the time of execution of P7 or P9 as the case may be Selina Violet Cabral had

not only an undivided extent of 18.4 perches coming to her on deed P2, but also

a further 34.5 perches inherited from her husband Charles Victor Cabral. As has

been quite correctly submitted by the learned President’s Counsel, the fact that

2D2 has been executed by both Selina Violet Cabral and her husband, when

Ransirinal Cabral had an entitlement of 34.5 perches, the entire extent of 20

perches conveyed on deed 2-D 2 would go entirely out of the aforesaid

entitlement of 34.5 perches of Ransirinal Cabral and hence 2D2 would in any

event have to be fed.

The appellants submitted that that the northern boundary of the land given to the

plaintiff on deed No 1188 has been mentioned as the allotment belonging to

Premaratna who incidentally is the 4th defendant-appellant. This undoubtedly

gives rise to a clear acknowledgment that an extent of the land in suit had earlier

252

been conveyed to the 4th defendant. It is also contended on behalf of the

appellants that 2D2 in favour of the appellants is dated 17.1.1984 whilst deed

No 1188 (P10) originating from the same source is dated 2.3.1986 nearly two

years later. In the circumstances, there cannot be any doubt as to which deed

should be fed first. Hence, the trial judge has fallen into a palpable error in not

granting the benefit of 2D2 to the appellants, on the premise that the recital of

title in 2D2 is restricted

to “prescriptive possession”.

When the propriety of the judgment concerning 2D2 is scrutinized from a

different perspective, it would appear that the refusal to confer the benefit of

2D2 to the appellants is meaninglessly inconsistent with the law applicable and

the facts established. In my opinion the trial judge was unduly critical of 2D2

resulting in a serious misdirection of law with consequent detriment caused to

the appellants and an undue advantage extended to the plaintiff.

The deprivation of the benefit of 2D2 to the appellants was on the premise that

there had been a failure to recite title in the deed, except the prescriptive title.

This reasoning of the trial judge to reject 2D2, is baseless and untenable in law.

It is quite clear that before the plaintiff’s deed P10 could be fed, the deed of the

appellants ought to have been favourably considered. Accordingly, it is my

considered view that interests in the corpus from both sources which admittedly

belonged to Selina Violet Cabral and Ransirinal Cabral at one point of time

should devolve on the parties in a different manner than the scheme of

distribution of rights suggested in the impugned judgment. In the result, the

devolution to the entirety of the 138 perches should, therefore, be

revised/corrected to read as it appears in the following table…

253

Party to whom shares allotted

On a perusal of the impugned judgment, the finding of the learned district judge

as regards 2D2 appears to be a clear misconception of the law. As has been

mentioned earlier in this judgement the document 2D2 is perfectly in order and

flawlessly confers title on the vendees (appellants). Hence, the finding of the

learned district judge as regards 2D2 is manifestly erroneous, considered

particularly in the light of the sacred duty imposed by the statute to investigate

title. The matter does not rest there. Taking into consideration the manifest

error occasioned in the investigation of title, to send this case back for re-trial

would mean further litigation, unnecessary expenses to both parties, and perhaps

an additional right of appeal. Such a course, if adopted would no doubt prolong

the agony. Therefore, it is unquestionably unfair by the parties and not

conducive to the best interest of the parties.

As such, I feel that justice can be meted out by directing the learned district

judge to amend the judgment and decree to fall in line with the schedule of

distribution of undivided shares, as indicated in the T A B L E above.

Accordingly, the judgment and interlocutory decree of the learned district judge

are affirmed subject to the variation directed to be made with regard to the

schedule of shares. Judgment affirmed subject to variation. There shall be no

costs.

254

Judge of the Court of appeal

Kwk/-

PARTITION-INVESTIGATION OF TITLE-NOTHING CAN BE

ACQUIRED FROM A CO-OWNER WHO HAS EXHAUSTED

HIS RIGHTS

This appeal has been preferred against the judgment dated 11 December 1996 of

the district judge of Kuliyapitiya. By the said judgment the learned district judge

held interalia that the corpus has been depicted in the preliminary plan dated 4

November 1981 made by A B M Veber, licensed surveyor and commissioner of

court. Further it was decreed that the corpus be partitioned in the proportion of

1/2 to the plaintiff and 1/2 to the 2nd defendant.

The 1st defendant claimed 1/2 share of the subject matter but he was not allotted

any such share. Being aggrieved by the said judgment, the 1st defendant

preferred the present appeal.

255

The learned district judge in his judgment has correctly analyzed the evidence

and come to the conclusion that the corpus has been properly identified by the

plaintiff by document marked X, namely the preliminary plan referred to above

and allotted shares to the plaintiff and 2nd defendant.

The position maintained by the 1st defendant was that the original owner of the

land to be partitioned was one Bandiya who according to the plaintiff had died

leaving as his intestate heirs Hapuwa and Hethuwa.

The 1st defendant claimed an undivided 1/2 share of the corpus on deed No

30519 dated 27 March 1978. However, according to the plaintiff Bandiya, the

original owner of the subject matter by deed No 21831 dated 17.08. 1969 has

transferred an undivided 1/2 share to the 2nd defendant. As such the 1st

defendant cannot maintain that he has acquired 1/2 share of Bandiya. This deed

conveys no title by reason of Bandiya having exhausted his rights on an earlier

deed No 21831. In the circumstances, the 1stdefendant has no cause to complain

and as such this appeal deserves no favourable consideration.

Appeal dismissed. No costs.

.

Judge of the Court of Appeal A

W Abdus Salam, J.

END

256

CA 75/97F

DC Kuliyapitiya : 6231/P

Nuwara Paksha Pedige Gunadasa,

1Defendat-Appellant

Vs

Nuwara Paksha Pedige Peruma,


Nuwara Paksha Pedige Laisa,

2nd Defendant-Respondent

Counsel: Bimal Rajapakse with Ravindra Anavaratna for the

plaintiff-ressondent. Argued: 03.03.2011

Decidedon:04.03.2011

Kwk

257

PARTITION- ID OBTAINED BY MEANS FRAUD-COURT TAKEN TO TASK-LIABILITY OF THE

JUDGMENT TO SET ASIDE

OBTAINING INTERLOCUTORY DECREE IN PARTITION CASE MISLEADING COURT,

MANIPULATIVELY IMPRESSING UPON COURT THAT THEY HAD A VALID TITLE TO

THE PROPERTY IN QUESTION AND THAT THE COMMON POSSESSION BETWEEN

THEM WAS IMPRACTICABLE - maxim “Lex non logit ad impossibilia”- protection

given to partition decrees from being attacked on the grounds of fraud, collusion,

omissions, defects, and of the failure to make “persons concerned" parties to the action

should not be construed as a licence to flout the provisions of the partition law and to

deprive others of their property rights to enrich conveniently at the expense of the

victims. LEAVE TO APPEAL TO THE S/C REFUSED

Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 APPLIED.

CA Appeal No. CA 1186/02

D.C. Gampaha 36831/P

Weragoda Vidanalage Thamara Veragoda,

Petitioner

Vs

1. A Arachchige Premapala,

Plaintiff-Respondent.

2. Polwatta Gallage Sadhdhananda,

Defendant-Respondent

Kamala Seline Meemana Hettiarachchi,

3rd Defendant-Respondent

U.De Z. Gunawardena with C.Horange for the petitioner, Athula Perera for the 1stplaintiff-respondent and

H.Withanachchi for the 2nd and 3rd defendant-respondent.

Decided on : 24.11.2008

258

Abdul Salãm J.

The petitioner has made the present application to revise the interlocutory decree

and final decree entered in partition case No: 36831/P in the District Court of

Gampaha. Admittedly, she was not a party to the partition action. Her allegation is

that the interlocutory and final decrees entered in the partition action have been

obtained by the Plaintiff-Respondent (hereinafter referred to as the “Plaintiff”) and the

Defendant-

Respondent (hereinafter referred to as the “Defendant”) calculatingly misleading the

District Court.

The facts and circumstances that led to the filing of the partition suit, are worthy of

being narrated briefly. According to the plaint, by right of long and prescriptive

possession the original owner of the corpus was Kamala Seline Meemana

Hettiarachchi who had gifted the same to her husband Saddananda on deed No: 841

dated 08.11.1993. Saddananda on deed No: 845 dated 13.11.1993, has transferred

an undivided 10 perches from and out of the entire land to one Balasooriya

Arachchige Premapala. The straightforward devolution of title set out by the plaintiff,

when drawn in the traditional manner of showing by way of a pedigree, would appear

as follows.

The sequence of events that had taken place prior to the institution of the partition

action, need to be set out at this stage.

The alleged original owner has purportedly gifted the property to her husband on

259

8.11.1993 (by A 12) and he in turn transferred an undivided 10 perches on 13.11.93

(by A 13) barely five days after his becoming the owner of subject matter. The

partition suit had been filed on 30.11.1993, just after 17 days of his becoming a co-

owner. Quite strangely, both deeds A12 and A13 have been executed by the same

Notary. It is rather an unusual feature that the notary who attested deed A 12, having

acted for his clients Mrs. Hettiarachchi and her husband Saddananda had

subsequently acted for the transferee Premapala in relation to the execution of deed

A 13 and then when the common possession of the property between them had

become allegedly impracticable, the same notary in his capacity as an attorney at

law had filed the partition action on behalf of Premapala against his former client

Saddananda. From the above it is quite obvious that both the plaintiff and the

defendant in the partition action together with the 3rd respondent were perpetrating a

fraud to obtain a judgment in rem affecting the subject matter by manipulatively

impressing upon court that they had a valid title to the property in question and that

the common possession between them was impracticable.

The primary question that arises for determination in this application is whether the

land in respect of which the petitioner alleges that her rights had got wiped out and

the corpus in respect of which the impugned final decree had been entered are

identical to one another. The position of the petitioner is that the reference made in

the plaint to Kamala Seline Hettiarachchi (3rd respondent) as being the original owner

of the corpus, is demonstrably false and the owner of the subject matter was her

predecessor in title Samarakoon Arachchige Ana Perera, who by her last will had

devised and bequeathed it to her. The plaintiff having described the corpus in his

plaint has referred to a building on it, identified by means of assessment No: 131, at

Gonahena.

As has been quite correctly pointed out by the learned counsel of the petitioner,

house No: 131 is the tell-tale mark that led to the exposure of the deception practised

by the defendant in collusion with the plaintiff. In this context, let us first examine the

electoral registers marked along with the petition as A15. The electoral registers from

the year 1967 to 1981 are admittedly applicable to premises No: 131, Gonahena.

Samarakoon Arachchige Ana Perera has undisputedly lived in this house until her

death. Even in the said Last Will No. 1880 of Ana perera that was duly proved and

admitted to probate, in Testamentary Case No:28584/T, the residence of the testator

260

is given as No: 131, Gonahena. The said house has been specifically referred to in

deed marked A12 and also in the schedule to the plaint. This, doubtlessly

strengthens the claim of the petitioner that Samarakoon Arachchige Ana Perera was

the true owner of the corpus or at least the owner of house bearing No: 131.

It is also important to note the admission made by the defendant and his wife in their

statement of objections. They admit that having come into possession of house No;

131 aforesaid after the death of the said Ana Perera, who had died on 04.05.1981.

The possession of house No 131 by Ana perera as acknowledged by the defendant

and 3rd respondent, the mysterious enthusiasm shown towards the execution of A12

and A13 in quick succession and the indecent haste shown in filing the partition

action, in my view demand the conclusion that the partition suit complained of was a

collusive action aimed at depriving the petitioner of the right of being heard with a

view to obtain a final decree behind her back.

According to the petitioner, Ana perera was the owner of the subject matter at the

relevant time. The defendant and 3rd respondent have admitted that Ana Perera

occupied premises No: 131, until her death. Section 110 of the Evidence Ordinance

provides that when the question is whether any person is the owner of anything of

which he is shown to be in possession, the burden of proving that he is not the owner

is on the person who affirms the negative. Learned counsel of the petitioner has

submitted that Kamala Seline and her husband had remained tight- lipped and had

not sought to deny, at least, for the sake of formality that Samarakoon Arachchige

Ana Perera was the owner and that is misleading silence. Upon consideration of the

attended circumstances, I am inclined to think that the attempts made by the plaintiff,

the defendant and the 3rd respondent even in these proceedings to suppress the

nature of possession of Ana Perera are suggestive of a dangerous ulterior motive.

The petitioner maintains that Samarakoon Arachchige Ana Perera devised all her

properties to her by her last will No; 1880 dated 8th June 1980. The said last will, has

been duly proved in testamentary proceedings in the District Court of Colombo in

Case No: 28584/T and admitted to probate. It is quite pertinent to observe at this

stage that a competing last will purporting to be that of the said Ana perera produced

in the same proceedings by an intervenient petitioner, in which Kamala Seline

Meemana Hettiarachchi (3rd respondent) the so-called original owner of the corpus

261

figured as one of the beneficiaries, was rejected by court on the basis that it was a

forgery.

The long drawn out dispute relating to the last Will of Ana Perera was conclusively

resolved in the Supreme Court in favour of the petitioner, to whom all properties,

movable and immovable of late Ana Perera were bequeathed. The petitioner

maintains that she employed a dealer in real estate by the name Gamini Rajapaksa

to clear the land which is the subject matter of the partition action for purpose of sale

in blocks. The petitioner alleges that at this stage her agent Gamini Rajapaksa

while clearing the land, was obstructed by Saddananda.

The Petitioner's position is that the corpus of partition action No: 36831 is in fact

Talagahawatta alias Warakanatta. The plaint in the partition action No: 36831

described the corpus as Talagahawatta situated at Gonahena. The petitioner also

states that Talagahawatta that has been inadvertently spelt in the forged last Will as

‘Kalagahawatta’ is also known as Warakanatta.

It is of much significance to note the events that took place after the petitioner

employed her agent to sell the land. Setting out the series of incidents that followed,

the petitioner states that the defendant having prevented her agent from clearing the

land filed action No: 36619/L seeking a declaration of title in respect of the same land

which was the subject matter of the partition action, deliberately describing the land

as Warakanatta, thus conveniently omitting to identify the same as Talagahawatta.

Consequently, what remains to be determined is whether the corpus in the partition

action and the subject matter of the rei-vindicatio action are identical. The land in

action No: 36619/L is depicted as lot 01 in plan No: 1062/L. The corpus of the

partition suit is depicted in the final plan No: 937. The extent of the corpus shown in

the final plan of partition is 3 roods 34.3 perches while the extent of lot 01 in plan

1062/L is 3 roods 35.1 perches. The difference in extent is 00.08 perch which

undeniably falls within the negligible margin. As far as the extent of the lands shown

in both plans are concerned, it demands the assumption that the lands depicted for

purpose of both suits are almost identical to one another and one and the same.

In the surveyor's report appended to plan no: 1062/L, marked in these proceedings of

consent, on 23.11.2007, Saddananda has claimed the subject matter of action in

L/36619, by virtue of the final decree in partition Case in question. This I think

262

renders it self-explanatory that the corpus in the partition suit and the subject matter

of the rei vindicatio action are identical.

As regards the original ownership of the subject matter of the partition action the

defendant, plaintiff and 3rd respondent have taken up different positions diametrically

opposed to each other. In L 36619/L the plaintiff (Saddananda) has taken up the

position that he is the original owner of the subject matter of that action. For reason

of his own, he has made no mention of Kamala Seline who figured as the original

owner in the partition action.

As was urged on behalf of the petitioner the conduct of Saddananda and others,

acting in concert and collusion is contemptible not so much of their attempt to rob the

petitioner of the land which has been devised to her by a last will, but because of

their heinous act in showing the cheekiest contempt for the courts of justice - by

attempting to make use of the courts as instruments of fraud.

In Attorney-General vs. Podisinghe 51 NLR 385 it was held inter alia the exceptional

circumstances in which an application in revision should be entertained were spelt

out to include circumstances where there has been a miscarriage of justice or where

a strong case for the interference of the Supreme Court has been made out by the

petition or when the applicant was unaware of the order made by the Court of

Appeal.

The respondents to this application have vehemently opposed the exercise of

revisionary powers of this court in relation to the to the application to set aside the

impugned decrees, based on the grounds of laches and/or delay in invoking the

revisionary jurisdiction of this court, alleging that such delay or laches are attributable

to the petitioner. No doubt there has been a delay in invoking the revisionary

jurisdiction of this Court. In so far as it transpires from the documents produced, the

final decree in the partition action has been entered on 22.08.1996. The revisionary

jurisdiction of this Court has been invoked by the petitioner on 09.07.2002. Hence

the interval between the two events counts a period of 06 years. The question then

arises for consideration is whether owing to the period of interval between the two

events, the application for revision should stand dismissed, notwithstanding the

unimaginable magnitude of fraud and collusion perpetrated by the beneficiaries of

263

the said decrees. A careful scrutiny of the series of incidents and several protracted

litigations that had taken place after the death of Ana Perera, would reveal that the

respondents to this application were determined to circumvent the judgment in the

matter of the testamentary case of Ana Perera, by hook or by crook. In the

achievement of their aspiration, the respondents had not shown the least

consideration or respect to court.

In this respect I consider it as being appropriate to quote Sir James Stephen from his

“History of the Criminal Law of England” (vol. II. p. 121) where he observed as

follows:

" I shall not attempt to construct a definition of ' fraud ' which will meet every case

which might be suggested, but there is little danger in saying that whenever the

words

' fraud ' or ' intent to defraud ' or 'fraudulently' occur in the definition of a crime, two

elements at least are essential to the commission of the crime, namely, first, deceit

or an intention to deceive, or in some cases where secrecy; and secondly, either

actual injury or possible injury, or an intent to expose some person either to actual

injury or to a risk of possible injury by means of that deceit or secrecy . . . . . . . . . . . .

A practically conclusive test as to the fraudulent character of a deception for criminal

purposes is this: ' Did the author of the deceit derive any advantage from it which he

could not have had if the truth had been known? If so, it is hardly possible that that

advantage should not have had an equivalent in loss or risk of loss to someone else,

and if so, there was fraud".

It is my considered view that the statement of Sir James Stephen, can most

appropriately be applied to the respondents to this application and they would not

have derived any advantage through their effort, had the petitioner was made aware

of the partition suit as required by section 4(1) (c) of the Partition Act or the learned

district Judge was enlightened as to the background of the litigation the parties have

had over the matter of the estate of Ana perera. For purpose of completeness, let me

reproduce section 4(1) (c) of the Partition Act, to ascertain the nature of the

responsibility the said Act casts on the plaintiff. It reads as follows.

4(1) In addition to the particulars…. the plaint…. shall contain the following

particulars. 4(1) (c) the names and addresses of all persons who are entitled or

264

claim to be entitled to any right, share, or interest to, of, or in that land or to any

improvements made or effected on to that land and the nature and extent of any

such right, share, interest or improvements, so far as such particulars are known

to the plaintiff or can be ascertained by him. (Emphasis is mine).

It is also useful at this stage to advert to the deed of gift A12 in which a recital has

been made as to the original ownership of the subject matter. Very strangely this

deed bears a “prior registration” reference indicating that the notary had invited the

land registry to register the said deed in continuation of the Folio referred to therein.

What does this really mean? The fact that the notary had given the prior registration

reference in A 12 means that there had been other instruments affecting the same

land and registered in the Land Registry prior to the execution of A 12. The learned

district Judge in the sacred discharge of his duty to investigate the title to the corpus

appears to have ignored the prior registration reference given in A 12. It is

lamentable that the registered attorney at law of the plaintiff, who had been very

much involved in the institution of the partition action, has failed to bring this to the

notice of the learned district Judge.

When instituting a partition action, the law expects the plaintiff to signify the original

owner/owners of the corpus. However, such information need not necessarily be

stated with such accuracy, as it is open for anyone, if necessary, to go back to yet an

earlier owner in point of time, provided that the name of an original owner is set out

with reasonable carefulness. Our courts by and large are accustomed to tolerate

shortcomings arising in regard to such disclosures. In this respect, usual it has been

for courts to adopt a realistic approach than to be cumbersomely legalistic. However

the facts and background peculiar to the partition action in hand, in no way can justify

such a flexible attitude. Hence the plaintiff cannot be excused or tolerated for

fabricating evidence regarding the original ownership to achieve the selfish

objectives of the defendant and his wife.

As regards the alleged delay in filing the application for revision, the petitioner has

placed before court the impossibility of invoking the jurisdiction earlier than what she

in fact had done. She has taken up the position that she did not know of the

institution of the partition action or the entering of the judgment/interlocutory

decree/final decree in the partition case to quickly invoke the revisionary powers of

this Court. For this reason, as far as the petitioner is concerned, the alleged delay

265

cannot said to be an undue delay and therefore should not be held to prejudice the

rights so long as she had no notice of the partition suit or its termination. (Emphasis

is mine)

The maxim “Lex non logit ad impossibilia” in my opinion to a great extent can save

the petitioner of the embarrassment of having to face the allegation of delay she is

blamed. The maxim which favaours a person of the type of predicament the

petitioner was placed, expects nothing impossible from her in the performance of the

law. Maxwell (12th edition) on Interpretation lays down the guide line that the law

must be understood as dispensing with the performance of what is prescribed when

performance of what is prescribed is impossible. In the light of the above maxim it is

not only impossible but utterly irrational to expect from the petitioner to have invoked

the revisionary powers of this Court earlier than she did, when she had no

knowledge of any fraud or collusion resulting in any form of miscarriage of justice.

Learned Counsel on behalf of the petitioner contends that the facts in case No:

36831/P satisfy the criteria, spelt out in 51 NLR 385. He has urged that there is a

patent miscarriage of justice and in any event, it is certain that the respondents are

not the true owners of the corpus of the partition action No: 36831/P because they

had misled the District Court by a fabricated pedigree.

For instance in Harding vs. Price 1948 1RB 695- a trailer of vehicle collided with and

damaged a stationary car. Driver was unaware that the accident had happened and

so did not report it to the police as required by section 22(2) of the Road Traffic Act

1930. The driver's defence was that he was unaware of the accident owing to the

noise of the vehicle. His defence was upheld. The reasoning adopted by Lord

Goddard C.J was that the driver concerned cannot report something of which he had

no knowledge. It was stressed in the judgment in that case that any other view would

lead to calling upon the man to do the impossible.

In Seheeda Umma Vs. Haniffa 1999 - 1 SLR 150 it was held that the Court of Appeal

should act in revision, when there is a grave irregularity or a miscarriage of justice,

even in a case where revisionary powers have not been even invoked by the

Petitioner.

It is trite law that the protection given to partition decrees from being attacked on the

grounds of fraud, collusion, omissions, defects, and of the failure to make “persons

266

concerned" parties to the action should not be construed as a licence to flout the

provisions of the partition law and to deprive others of their property rights to enrich

conveniently at the expense of the victims. In my opinion no court should not ever

hesitate even for a moment to appropriately use its revisionary powers to give relief

where a miscarriage of justice has occurred. The miscarriage of justice that has

resulted in this case is of such magnitude, in respect of which allowances cannot

easily be made. Fraud can no longer be considered not merely as a challenge to the

party affected but above all constitutes an affront to the dignity and authority of the

institutions vested with the due administration of justice.

For the foregoing reasons, I consider it as being most appropriate, in the

circumstances to set aside the proceedings, judgment, interlocutory decree and final

decree entered in the partition action. Accordingly, I allow the revision application.

The partition action of the plaintiff therefore shall stand dismissed.

The petitioner is awarded costs of this application against the plaintiff and defendant.

Sgd.


Kwk/-

********

I do hereby certify that the foregoing is a true copy of the judgment

dated 24.11.2008 filed of record in C.A. Rv. Application No.1186/2002.

Typed by :

Compared with :

Chief Clerk- Court of Appeal

267

PARTITION- FINAL DECREE- WRIT OF POSSESSION -SEC 52 OF THE PARTITION ACT

C.A. Rev. 1125/02

D.C. Colombo Case No: 12146/P

Samson Louigi Augustus Daniel 22/26,

Samagipura Hokandara Rd.

Thalawatugoda.

1A Defendant-Petitioner-Petitioner

Vs.

Mohamed Ismail Naseer,

No: 6, Gamini Place,

Palliadorq Road, Dehiwala.

And

No. 43, !st Cross Street, Colombo

11.

7th Added Defendant- `

Respondent-Respondent

Before : A.W.A. Salam,J.

268

Counsel : Dr. J. de Almaida GunaratneP.C. with Shyamalee

Pradeepika Weliwatte for the Petitioner.

Wijedasa Rjapakse PC. with Rasika Dissanyake and J.K. Jaleel for the

7thAdded Defendant-Respondent.

Written Submissions

Filed on : 24.03.2008

A.W.A. Salam,J.

The application of 1A defendant-petitioner (hereinafter referred to as the

"petitioner") made in these proceedings, is aimed at setting aside and

revising the order of the learned district Judge dated 15-03-02, refusing

an application to issue a writ of possession in terms of section 52 of the

Partition Act. The petitioner was the purchaser at an auction sale held

under and by virtue of the interlocutory decree entered in the relevant

partition action, of the allotments of land marked as C,D,F and G depicted

in plan of partition No 4961 made by S.D.Liyanasuriya, Licensed Surveyor

and Commissioner. Subsequent to the confirmation of the sale, the

petitioner made an application for a writ of possession of premises

bearing No 43, 1st cross street, Colombo 11 which stood on lot G

aforesaid.

As the 7th the defendant who was in possession of premises bearing No.

43 had died, on the application of the petitioner, a son of the said

deceased defendant had been substituted as 7A defendant. The

application of the petitioner for writ of possession was opposed

vehemently by 7 A defendant, based on the purported tenancy in respect

of premises bearing No.43. The learned district Judge after inquiry inter

alia held that for restricted purpose of the inquiry conducted by him,

namely the inquiry into the application for the writ of possession, it had

been adequately established both by parol and documentary evidence the

status of the 7 A defendant as being the tenant of the said premises in

269

question and therefore proceeded to dismiss the application made by the

petitioner under and in terms of section 52 of the Partition Act.

The petitioner in addition to an interlocutory appeal taken against the said

order has also preferred an appeal. According to him the present

application has been filed upon being advised, since the proper course of

action, amidst the exceptional circumstances was to invoke the

revisionary jurisdiction of this court.

When the matter came up for argument, an objection was raised against

the maintainability of the application for revision, inasmuch as there was

no sufficient compliance of the court of appeal (appellate procedure) rule

3(1). In other words the learned counsel of 7 A defendant-respondent

maintained that documents marked as 7 v 1 to 7 v 180 produced at the

relevant enquiry and referred to by the learned district judge in the

impugned order have not been tendered by the petitioner. The learned

President’s counsel of the petitioner took up the position that there was

substantial compliance of rule 3 (1) by his client and that he has raised in

his revision application the question relating to the application of section

52 of the Partition Act and its impact on section 14 of the Rent Act No.7 of

1972.

The rule 3 (1) (a) and (b) of the Court of Appeal appellate procedure rules

1990 of reads as follows

3 (1) (a) every application made to the court of appeal for the exercise of

the powers vested in the court to appeal by the article 140 or 141 of the

Constitution shall be by way of a petition, together with an affidavit in

support of the averments therein, and shall be accompanied by the

originals of documents material to such application (or duly certified

copies thereof) in the form of exhibits. Where a petitioner is unable to

tender any such document, he shall state the reason for such inability and

seek the leave of the court to furnish such document later. Where a

petitioner fails to comply with the provisions of this rule the court may,

ex-mero-motu or at the instance of any party, dismiss such application.

270

3(1) (b) every application by way of revision or risky restitutio in

intergrum under article 138 of the Constitution shall be made in like

manner together with copies of the relevant proceedings including

pleadings and documents produced, in the Court of first instance, tribunal

or other institution to which such application relates.(Emphasis added)

Upon a perusal of the petition, I find that the petitioner has produced the

following documents as being related to his application. (Emphasis is

mine).

1. X1- the interlocutory decree for sale entered in the relevant

partition action.

2. X1A-Plan No 4961.

3. X2-journal entries maintained in partition action No 12146/P.

4. X3-The commission issued for the sale of the corpus.

5. X4A-the petition of the petitioner seeking an order for the issuance

of the writ of possession in terms of section 52 of the Partition Act.

6. X4B – objections of the respondents.

7. X4C - written submissions of the petitioner tendered in the district

court.

8. X4D - written submissions of the respondent tendered in the district

court.

9. X4E to X4I - the proceedings of the inquiry into the application by

the petitioner seeking writ of possession.

10. X4J - the impugned order of the learned district Judge dated 15-

0302 refusing the application of the petitioner and declaring the

defendant as a tenant.

It is quite clear from the petition and the stand taken up by the learned

President's counsel of the petitioner that he does not intend to challenge

the impugned order as to the pronouncement relating to the tenantship of

the defendant. All what the learned President's counsel of the petitioner

seeks to challenge in these proceedings is the extent of the application of

section 52 of the Partition Act and its impact on section 14 of the Rent

Act. To put it differently the learned President's counsel of the petitioner

271

does not challenge the finding that the defendant is a tenant. On the

contrary, he invites the Court to consider to what extent the defendant

can claim the benefit of section 14 Of the Rent Act, when the premises in

respect of which the writ of possession position is sought under section 52

of the partition act does not fall within the definition of a residential

premises.

In the circumstances, it is my view that in order to determine the

application of section 52 of the Partition Act, in the light of the provisions

of section 14 of the Rent Act the petitioner has annexed the relevant

proceedings, and other documents including the impugned order as they

relate to his application for revision.

For the above reasons, I do not consider it as appropriate to dismiss the

revision application of the petitioner inlimine. In the result the preliminary

objection raised by the defendant should necessarily fail.

Preliminary objection ruled out.

Make no order as to costs.

Judge of the Code of Appeal.

272

PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT

PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT length of possession immaterial if entered as licensee

This judgment relates to two distinct petitions of appeal preferred against a decision

entered at the conclusion of a partition action. The plaintiff has filed appeal bearing No

CA 272/94 F and defendant CA 273/94 F.

The land in respect of which the partition suit has been filed is known as

Gorakagahawatta which is depicted as lots 1 and 2 in the preliminary plan No 621

produced at the trial marked as X. The extent of lot 1 is 3 roods and 21 perches and lot 2

is 1 Rood and 24 perches. The Southern boundary of lot 1 and the Northern boundary of

lot 2 is a public Road. Similarly, the Eastern boundary of lot 1 and Western boundary of

lot 2 are also roads running along the said boundaries.

According to the plaintiff, the original owner of an undivided 1/4 share of the corpus was

one Juvanis Appuhamy whose rights he claimed had devolved at a certain point of time

on his children Don Sadiris, Don Lewis, Sepochi Hamine, Kithchchihamine, Liso

Nonnohamine alias Abilinahamine and Podinonohamine. The plaintiff maintained that

the balance 3/4 share of the corpus was possessed by Juvanis Appuhamy and he

prescribed to the same. Consequently, the plaintiff claimed that undivided shares of the

corpus, devolved on the parties in the following manner.

Plaintiff - 2136/126000



3rd defendant- 21182/126000

4th defendant- 712/126000






273


To be Unalotted - 43716/126000

The 11th defendant took up the position that lot 1 in the preliminary plan formed a

separate land called ‘Ambagahawatte’. Nevertheless, for reason of his own, the 3rd

defendant did not suggest any point of contest as to whether Lot 1 formed a different

land called ‘Ambagahawatte’. He relied on his long and undisturbed and exclusive

prescriptive possession of Lot 1, to claim exclusion of it from the subject matter. The

learned District

Judge having carefully analyzed the evidence adduced, came to the finding that the

11thdefendant has prescribed to Lot 1 depicted in the preliminary plan.

The counsel of the plaintiff-respondent and 3rd defendant-respondent/appellant have

submitted that the trial judge could not have possibly held in favour of the 11th defendant

on the question of prescription to Lot 1, as he has failed to raise the such a point of

contest. He further submits that the position of the 11th defendant was that lot 1 formed

part of a different land known as AMBAGAHAWATTA which the learned district judge

has rejected. Arising from the said rejection, counsel submits that lot 1 in the preliminary

plan should be considered as part and parcel of the corpus and therefore the 11th

defendant could not have been declared entitled to Lot 1 by right of prescription. At this

stage it is appropriate to examine the impugned judgment with a view to ascertain the

basis on which the 11th defendant has been declared entitled to Lot 1. According to the

trial judge the improvements in Lot 1 have been claimed only by the 11th defendant.

Even though the plaintiff and certain other defendants were present at the survey, except

the 11th defendant no one else had made any claim to the plantations or improvements

in Lot 1. The learned district judge has observed that the subsequent claim made by the

plaintiff to the Plantations in Lot 1 by an affidavit (P11) was an afterthought to circumvent

the consequences of his failure to prefer a claim the plantations in Lot 1 at the

preliminary survey. This observation in my opinion cannot be strictly considered as

evidence against the plaintiff as has been done by the learned district judge. However,

on a perusal of the evidence led at the trial even without this observation there has been

sufficient evidence led at the trial to establish the prescriptive possession of the 11th

defendant in respect of lot 1.

The plaintiff and the 3rd defendant/appellant have raised the question as to whether Lot

1 can be declared entitled to the 11thdefendant by right of prescription, in the absence of

any issues raised to that effect. It is significant to observe at this stage that the learned

district judge has held in favour of the 11th defendant as regards the question of

274

prescription by answering point of contest No 12. In answering the said point of contest

the learned district judge has stated that the 11th defendant has prescribed to the said

lot

1, as stated in paragraph 13 of the 11th defendant’s statement of claim. For purpose of

completeness, let me first reproduce paragraph 13 of the statement of claim of the 11th

defendant. (vide page 130 of the brief)

by; 11 fjks ú;a;sldrsh iy wef.a mQ¾j whs;slrejka fuu foam< wLKavj ksrjq,aj wjqreÿ 10 lg wêl ld,hla nqla;s

ú| fuu foamf,ys whs;sldrsh úh’

Point of contest 12 reads as follows (vide page 344 of the brief) by; i|yka 621 orK msUqf¾

wxl 1 orK lgsáh 11 ú;a;slref.a ysñlï m%ldYfha i|yka mrsos wehg ysñ ù weoao?

The finding of the learned district judge as regards lot 1 is as follows.. ta wkqj tu lene,a,

wjqreÿ 10 jevs ld,hla m%;súreoaO whs;shla u; 11 fjks ú;a;sldrsh iy wef.a mQ¾j.dñka nqla;sú|Su

fya;=fldgf.k 11 ú;a;sldrshg Bg ld,djfrdaê whs;shla ,enS we;s njg úksYaph lrñka 12 jk úi|sh hq;=

m%Yakhg wef.a ysñlï m%ldYfha 13 jk fPaofha i|yka lr we;s mrsos jQ ld,jfrdaê nqla;sfha whs;shla

wehg ysñ jS we;s njg úksYaph lrus’ ta wkqj wxl 1 lene,a, úIh jia;=fjka bj;a lrñ’

Therefore, it would be seen that the learned district judge has ruled on the question of

prescription strictly guided by the particular point of contest. As he has decided that the

11thdefendant has acquired a valid prescriptive title to the corpus, namely a distinct and

separate portion of Gorakagahawatta the learned district judge should have declared the

11thdefendant to have acquired a prescriptive title to that portion of the subject matter,

without excluding the same from the corpus. Accordingly the 11th defendant would be

entitled to an undivided 3 roods and 21 perches from and out of the corpus which the

learned district judge should have directed to be allotted to the 11th defendant at the final

scheme of partition as far as practicable from and out of lot 1 depicted in the preliminary

plan. The learned district judge will accordingly make the necessary amendments

to the interlocutory decree.

As regards the identity of the corpus and the improvements, there had been serious

contests among the plaintiff, 3rddefendant and the 11th defendant. The 3rd defendant has

claimed the plantations and the improvements in Lot 2 and also attempted to set out a

prescriptive claim for that lot. As has been correctly observed by the learned district

judge the 3rd defendant is a co-owner of the subject matter in terms of the averments

contained in the plaint. Further, according to the deeds produced marked as 3D1 and

275

3D2 (deeds of transfer 3593 and 3578) the 3rd defendant has purchased undivided

rights. Hence, the 3rd defendant is admittedly a co-owner of the subject matter. The

learned district judge has correctly observed that the failure on the part of the

3rddefendant to prove ouster by an overt act stands in the way of the prescriptive claim of

the 3rd defendant to lot 2 and therefore his claim for prescription should necessarily fail. I

am totally in agreement with the finding of the learned district judge on this matter as it is

quite consistent with the evidence led at the trial and the law applicable.

In the circumstances, I am of the view that the grounds of appeal relied upon by both

appellants should necessarily fail. Hence, both appeals stand dismissed. Judgment of

the district court affirmed subject to the variation made at page 10 of this judgment.

There shall be no costs of this appeal.


A W Abdus Salam, J

PARTITION ACTION-BONA FIDE IMPROVER- COMPENSATION

276

CA APPEAL NO: 905/96F

DC Balapitiya: 1423/P

Pituwala Kankamge Gunawathie, Talagawala Wattahena 8th Defendant Appellant Vs Uberis Blok, Talagawala Wattahena Plaintiff-Respondent Lalith Premala Blok Guruge, Talagawala, Wattahena and 6 others Defendant Respondent Before:

A W A Salam J Counsel:

Jacob Joseph for the 8th defendant-appellant and S Karunathilaka for the plaintiff-respondent.

Argued on:

15.12.2010

Written submissions tendered on: 04.03.2011.

Decided on:

14.03.2011

A W Abdus Salam, J

This appeal arises from the interlocutory decree entered in a partition action to partition the

corpus amongst the co-owners. The appellant is not a co-owner of the subject matter but

claimed prescriptive title to a specific portion of the corpus.

The only question that arises for determination piece that the person who has a right of

possession until compensation is paid can prescribe to the land in respect of which

compensation is to be paid.

In the case of De Silava Vs Sangadasa 40 NLR 162 it was held that where in a partition

actioncompensation for improvements due to a bona fide possessor is determined, he has the

277

right to retain possession but it is until the compensation due to him is paid and that it is not

necessary to expressly reserved the jusretentionis in the decree.

Similarly in the case of Sediris Vs Dingirimanika 51 NLR 6 it was he possession under a jus

retentionis is not adverse possession cannot found a title by prescription nor the right to

tender compensation for the improvements be barred by limitation.

In the light of the above authorities, the judgment of the learned district judge and

interlocutory decree entered are affirmed. The appeal is dismissed subject to costs.


CA 1330/96 F DC Galle 7445/P to be named

CA 1330/96 F DC Galle 7445/P

THAWALAMA GAMAGE BABY NONA,

4™ DEFENDANT APPELLANT

VS

MABOTUWANA WITHANAGE JOHN, MABOTWANA PLAINTFF- RESPONDENT

278

AND OTHERS

Before; A W A Salam, J

Counsel : Athula Perera with Priyantha Ananda for 3rd defendant- respondent and N R

M Daluwatta PC with Mala Maitipe for 4th plaintiff-respondent.

Argued On: 12.07.2011

Written Submissions tendered on: 27.10.2011 Decided: 24.04.2012

A W Abdus Salam, J

This is an action to partition the land depicted in preliminary plan No 374 dated

01.09.1983 made by Gamini Nihal Amarasingha, Licensed Surveyor produced

marked as “X” at the trial.

Exclusions were sought by 3rd and 4th defendants in their statements of claim of

Lots C and B respectively, depicted in plan “X” based on the premise that they did

not form part of the corpus.

When the matter was taken up for trial on 30.5.1986, the parties agreed to have the

said lots B and C excluded from the corpus. Thereafter the plaintiff and the 2nd

defendant gave evidence at the trial and concluded their cases. Accordingly,

judgment was delivered on the same day, thus confining the partition action to lots A

and B depicted in plan X. In the judgment, undivided shares were allotted to the

plaintiff and the 1st defendant in the proportion of 79:70. The interlocutory decree

entered was registered at the land registry under Volume H 60/202.

Subsequently, the plaintiff filed a motion on 4.7.1988 and moved that the

proceedings dated 30.5.1988 be expunged, the interlocutory decree entered on the

same day be vacated and the case be set down for trial afresh.

The district judge having considered the motion on 9.1.1989 (nearly 2 1/2 years after

the interlocutory decree) vacated the judgment and interlocutory decree dated

30.5.1986. The 3rd defendant thereafter amended the statement of claim and took

out a commission to show the lots to be excluded by way of a superimposition of the

title plan, on plan X.

Finally, the district judge who succeeded the judge who vacated the judgment and

interlocutory decree embarked upon a fresh investigation of title and entered

279

judgment and interlocutory decree identifying the corpus as lots Al, B and D in the

preliminary plan (as superimposed) and allotted shares to the plaintiff, 1st defendant

and 2nd defendant in the proportion of 16:2:20 shares respectively and kept 2

shares unallotted.

Later, the 4th defendant filed a petition supported by an affidavit moving that the

order vacating the judgment and interlocutory decree entered initially be set aside

and the judgment and interlocutory decree entered for the second time be vacated

on the ground that court had no jurisdiction to vacate its own judgment and in any

event the 4th defendant had no notice of the application made by the plaintiff to have

the proceedings expunged and judgment and interlocutory decree vacated. The

learned district judge by order dated 2.10.1996 refused the application of the 4th

defendant based on premise that the initial judgment and interlocutory decree had

been vacated after notice of motion filed by the plaintiff given to the Attorney-At-Law

of the 4th defendant by registered post. This appeal has been preferred by the 4th

defendantappellant to have the said order of the learned district judge set aside.

As has been rightly contended by the learned president’s counsel bn behalf of the

4th defendant-appellant, two matters arise for consideration. The basic question is

whether the court had jurisdiction to vacate its own judgment, and if not, whether the

vacation of its own judgment is ultra vires.

This being a partition action the elementary question of law that needs to be focused

at the outset is the conclusive effect and finality attached to a judgment and

interlocutory decree entered under section 26 of the Partition Law, No 21 of 1977 as

amended.

In terms of section 48(5) of the Partition Law the interlocutory decree entered, shall

not have the final and conclusive effect conferred on it by section 48 (1) as against a

person who, not having been a party to the partition action, claims any right, title or

interest to or in the land or any portion of the land to which the decree relates as is

not directly or remotely derived from the decree, if, he proves that the decree has

been entered by a court without competent jurisdiction. As such the plaintiff-

appellant does not fall under the category of persons enumerated under subsection 5

of section 48 nor does the court comes under the category of being devoid of

280

competent jurisdiction. In terms of Section 48 (4) of the Partition Law a party to a

partition suit not served with summons, or a minor or a person of unsound mind, not

represented by a guardian ad litem, or a party who has duly filed his statement of

claim and registered his address, fails to appear at the trial, and in consequence

thereof the right, title or interest of such party in the subject-matter of the action has

been extinguished or otherwise prejudiced such party may, on or before the date

fixed for the consideration of the scheme of partition under section 35 or at any time

not later than 30 days after the return of the commission for the sale under section

42 is received by court, apply to the court for special leave to establish the right, title

or interest of such party to or in the said land notwithstanding the interlocutory

decree already entered. The plaintiffappellant without doubt does not fall into any

other category of persons mentioned in section 48 (4) either. I

Quite significantly, no appeal has been preferred under section 48 (l)against the

original judgment and ID. Remarkably, the plaintiff- respondent has not filed his

motion under the provisions of section 48 (4) of the partition law but on the footing

that the terms of settlement to exclude lots B and C had been mistakenly entered

into. Taking into consideration the inordinate delay in filing the motion of the plaintiff-

respondent, it is abundantly clear that the plaintiff-respondent and the 1st defendant-

respondent have j incontestably conceded the finality and conclusiveness of the


In this respect, it is useful to apply the principle Expressio unius est exclusion alterius

(the express mention of one thing excludes others). In other words this principle

means that items not on the list are assumed not to be covered by the Statute. The

same principle is also expressed in a different manner with sound reasoning and

logic by the expression inclusio unius est exclusion alterius which means that

inclusion of one is the exclusion of another.

The principles of law relating to interpretation of Statutes referred to above are demonstrative of

the position that the plaintiff- respondent’s motion falls totally outside the purview of section

48(4) and (5) of the Partition Law. In the circumstances, the relief sought by the plaintiff-

respondent in the motion could not have been granted by the learned district judge. Hence, not

281

only the impugned order has been made without jurisdiction but all such } other steps taken after

the impugned order are of no avail or force in law.

The importance of adhering to the terms of settlement has been emphasized in the

case of Sinna Veloo Vs. M/S Lipton Ltd 1963-66 NLR 214 where Herath J. held that

once the terms of settlement entered upon and recorded by court, a party cannot

resile from the settlement even though the decree has not yet been entered.

The general principle of law does not permit an appellate court to interfere lightly with a

settlement entered into by the parties and I

notified to court. The rationale behind this has been expressed by West J. in the

case of Balprasad vs Dhamidhar Sakhram which is printed as a footnote to the case

of Shirekulidima’s Pa’s Hedga vs Blya 1886 10 Bombay 435. The said foot note is

referred to by Nagalingam,J in Perera vs Perera 50 NLR 81. For easy reference the

said foot note is reproduced below..

“The admission of a power to vary the requirements of a decree once passed would

introduce uncertainty and confusion. No one’s rights would at any stage be so

established that they could be depended on and the court would be overwhelmed

with applications for the modification on equitable principles of orders made on a full

consideration of the cases which they are meant to terminate. It is obvious that such

a state of things would not be far removed from a state of judicial chaos”.

In the case of Gunasekara Vs Leelawathie Sri Kantha Law Report Vol 5 Page 86, it

was held that a compromise decree is but with the command of a judge superseded

it. It can therefore be set aside on any of the grounds, such as fraud, mistake,

misrepresentation etc., on which a contract may be set aside. The plaintiff-

respondent has not sought to prove any such ingredients to avoid the terms of

settlement. The next question that arises for consideration is whether the 4th

defendant-appellant has been notified of the motion filed by the plaintiff-respondent

seeking the vacation of the judgment and interlocutory decree. A perusal of the

motion (2nd page) indicates that there are three attomeys-at-law on record who are

entitled to receive notice of the motion. According to the endorsement made against

the names of the said attorneys that law only one registered articles receipt number

has been mentioned. That is the registered article receipt No 1681. As has been

282

submitted by the learned President’s counsel, it is practically impossible to deliver a

notice enclosed in one envelope to three different attomeys-at-law.

It is a matter of record that the learned district judge on 9.1.1989 (page 116 of the

brief) has not taken the trouble to verify as to whether all those who are

affected/whose rights are prejudiced by the motion have received notice. Had this

been properly done, the 4th defendant-appellant may not have had to invoke the

appellate jurisdiction of this court to espouse his cause.

The 4th defendant-appellant is attacking the impugned order inter alia on the failure

to serve notice of the motion on him as the court had no jurisdiction to act on such a

motion, even if it was entitled to vacate the judgment and ID. It is trite law that where

the want of jurisdiction is patent, objection to jurisdiction may be taken at any time. In

such a case it is in fact the duty of the Court itself ex mero motu to raise the point

even if the parties fail to do-so.

In Farquharson v. Morgan 1[70 Law Time 152 at 153] Halsbury L.C. said, " It has

long since been held that where the objection to the jurisdiction of an inferior court

appears upon the face of the record, it is immaterial how the matter is brought before

the Superior Court, for the Superior Court must interfere to protect the prerogative of

the

Crown by prohibiting the inferior court from exceeding its jurisdiction. In the same

case, Lopes L.J. said, " The reason why, notwithstanding such acquiescence, a

prohibition is granted where the want of jurisdiction is apparent on the face of the

proceedings is explained by Lord Denman (6 N. & M. 176) to be for the sake of the

public, because 'the case might be a precedent if allowed to stand without

impeachment and I would add for myself, because it is a want of jurisdiction which

the court is informed by the proceedings before it, and which the judge should have

observed, and a point which he should himself have taken. " — "

re-quoted from W. Robison Fernando Vs Henrietta Fernando, 74 NLR 57

In Ittapana v. Hemawathie 1981 1 Sri L. R. 476, it was held by the Supreme Court

held that the failure to serve summons is one which goes to the root of the

jurisdiction of the court which means that if the defendant is not served with

summons or otherwise notified of the proceedings against him, the judgment entered

283

in such circumstances is a nullity and the persons affected by the proceedings can

apply to have the proceedings set aside ex debito justitiae. See also Sithy Maleeha

v. Nihal Ignatius Perera and Others 1994 3 SLR 270 (Emphasis is mine)

In the instant case the 4th defendant-appellant has taken up the position that he was

not served with notice of the proceedings which culminated in the judgment and

interlocutory decree having been set aside and a fresh judgment and interlocutory

decree substituted in that place.

In the attendant circumstances, I am of the opinion that it is the duty of this court to

set aside the impugned order and expunge all subsequent proceedings taken by the

learned district judge so as to give effect to the first judgment and the interlocutory

decree that followed.

As the plaintiff-respondent has failed to give notice to the appellant l

of the motion which in actual fact had led to the present appeal, the appellant is

entitled to recover costs of this appeal from the plaintiff-respondent fixed at Rs.

25000/-. Judge of the Court of Appeal Kwk/-

PARTITION- IMPORTANCE OF IDENTIFYING THE CORPUS-PRESCRIPTION

PARTITION- PRESCRIPTIVE TITLE- NECESSITY OF IDENTIFYING THE CORPUS BY THE

DISTRICT JUDGE

284

Abeywansha Leelanatha Wettasinghe

No. 101, Newdawa,

Alubomulla.

PLAINTIFF

C.A. No. 272-273/94(F)

D.C. Panadura Case No. 66/P

Vs.

1. Pushpa de Silva Withanachchi, Newdawa, Aruggoda,

Alubomulla.

2. Rukmani Silva Withanachchi, Newdawa, Aruggoda,

Alubomulla.

3. Habaragamuralalage Sarath Gamini Peiris, Newdawa, Aruggoda,

Alubomulla.

4. D.A.B. Senaratne, No. 15, “Sevana” 2nd Lane, Kudamulla,

Moratuwa.

5. P.D. Senaratne,

No. 15, “Sevana” 2nd

Lane, Kudamulla,

Moratuwa.

6. D.L. Senaratne,

No. 15, “Sevana” 2nd

Lane, Kudamulla,

Moratuwa.

7. Mangala Wettasinghe,

Thalakoladuwa, Newdawa,

285

Aruggoda, Alubomulla.

8. Lal Wettasinghe, Thalakoladuwa, Newdawa,


9. Luxman Wettasinghe,

No. 101, Newdawa,


10. Pulukkuttiralalage Kusumawathie,

Adikarimulla, Dunagaha.

11. Willegoda Wickremage Karlina Illeperuma

Arachchi Alias Karunawathie,

Newdawa, Aruggoda,

Alubomulla.

AND

Abeywansha Leelanatha Wettasinghe

No. 101, Newdawa,

Alubomulla.

PLAINTIF-APPELLANT

Vs.

3. Habaragamuralalage Sarath Gamini Peiris,

Newdawa, Aruggoda,

Alubomulla.

3RD DEFENDANT-APPELLANT

286

1. Pushpa de Silva Withanachchi,

Newdawa, Aruggoda,

Alubomulla.

2. Rukmani Silva Withanachchi,

Newdawa, Aruggoda,

Alubomulla.

4. D.A.B. Senaratne, No. 15, “Sevana”,

2nd Lane, Kudamulla,

Moratuwa.

5. P.D. Senaratne, No. 15, “Sevana”, 2nd

Lane, Kudamulla,

Moratuwa.

6. D.L. Senaratne, No. 15, “Sevana”, 2nd

Lane, Kudamulla,

Moratuwa.

7. Mangala Wettasinghe,

Thalakoladuwa, Newdawa,


8. Lal Wettasinghe, Thalakoladuwa,

Newdawa,


9. Luxman Wettasinghe,

No. 101, Newdawa,


10. Pulukkuttiralalage Kusumawathie,

287

Adikarimulla, Dunagaha.

11. Willegoda Wickremage Karlina

Illeperuma

Arachchi Alias Karunawathie,

Newdawa, Aruggoda, Alubomulla.

DEFENDANT-RESPONDENTS

Before : A.W. A. Salam, J.

Counsel : Rohan Sahabandu for the Plaintiff-Appellant and the

Plaintiff- Respondent. R.C. Gunaratne for the 11thDefendant-Respondent. Ananda

Kasturiarachchi for the 3rd Defendant-Appellant and 3rd Defendant-Respondent.

Argued on : 28/06/2010

Written Submissions tendered on : 11/10/2010

Decided on : 23/02/2011

A W Abdus Salam, J

This judgment relates to two distinct petitions of appeal preferred against a

decision entered at the conclusion of a partition action. The plaintiff has filed

appeal bearing No CA 272/94 F and defendant CA 273/94 F.

The land in respect of which the partition suit has been filed is known as

Gorakagahawatta which is depicted as lots 1 and 2 in the preliminary plan No

621 produced at the trial marked as X. The extent of lot 1 is 3 roods and 21

perches and lot 2 is 1 Rood and 24 perches. The Southern boundary of lot 1

and the Northern boundary of lot 2 is a public Road. Similarly, the Eastern

boundary of lot 1 and Western boundary of lot 2 are also roads running along

the said boundaries.

According to the plaintiff, the original owner of an undivided 1/4 share of the

corpus was one Juvanis Appuhamy whose rights he claimed had devolved at a

certain point of time on his children Don Sadiris, Don Lewis, Sepochi Hamine,

Kithchchihamine, Liso Nonnohamine alias Abilinahamine and Podinonohamine.

The plaintiff maintained that the balance 3/4 share of the corpus was

288

possessed by Juvanis Appuhamy and he prescribed to the same. Consequently,

the plaintiff claimed that undivided shares of the corpus, devolved on the

parties in the following manner.

Plaintiff - 2136/126000



3rd defendant- 21182/126000








To be Unalotted - 43716/126000

The 11th defendant took up the position that lot 1 in the preliminary plan

formed a separate land called ‘Ambagahawatte’. Nevertheless, for reason of his

own, the 3rddefendant did not suggest any point of contest as to whether Lot 1

formed a different land called ‘Ambagahawatte’. He relied on his long and

undisturbed and exclusive prescriptive possession of Lot 1, to claim exclusion of

it from the subject matter. The learned District Judge having carefully analyzed

the evidence adduced, came to the finding that the 11thdefendant has

prescribed to Lot 1 depicted in the preliminary plan.

The counsel of the plaintiff-respondent and 3rd defendant-respondent/appellant

have submitted that the trial judge could not have possibly held in favour of

the 11th defendant on the question of prescription to Lot 1, as he has failed to

raise such a point of contest. He further submits that the position of the 11th

defendant was that lot 1 formed part of a different land known as

AMBAGAHAWATTA which the learned district judge has rejected. Arising from

the said rejection, counsel submits that lot 1 in the preliminary plan should be

considered as part and parcel of the corpus and therefore the 11th defendant

could not have been declared entitled to Lot 1 by right of prescription.

At this stage it is appropriate to examine the impugned judgment with a view to

ascertain the basis on which the 11thdefendant has been declared entitled to Lot

1. According to the trial judge the improvements in Lot 1 have been claimed

289

only by the 11th defendant. Even though the plaintiff and certain other

defendants were present at the survey, except the 11th defendant no one else

had made any claim to the plantations or improvements in Lot 1. The learned

district judge has observed that the subsequent claim made by the plaintiff to

the plantations in Lot 1 by an affidavit (P11) was an afterthought to circumvent

the consequences of his failure to prefer a claim at the preliminary survey to the

plantations in Lot 1. This observation in my opinion cannot be strictly

considered as evidence against the plaintiff as has been done by the learned

district judge. However, on a perusal of the evidence led at the trial even

without this observation there has been sufficient evidence led at the trial to

establish the prescriptive possession of the 11th defendant in respect of lot 1.

The plaintiff and the 3rd defendant/appellant have raised the question as to

whether Lot 1 can be declared entitled to the 11th defendant by right of

prescription, in the absence of any issues raised to that effect. It is significant to

observe at this stage that the learned district judge has held in favour of the

11th defendant as regards the question of prescription by answering point of

contest No 12. In answering the said point of contest the learned district judge

has stated that the 11th defendant has prescribed to the said lot 1, as stated in

paragraph 13 of the 11th defendant’s statement of claim. For purpose of

completeness, let me first reproduce paragraph 13 of the statement of claim of

the 11th defendant. (vide page 130 of the brief)

by; 11 fjks ú;a;sldrsh iy wef.a mQ¾j whs;slrejka fuu foam< wLKavj ksrjq,aj wjqreÿ 10 lg wêl ld,hla nlq a;s ú| fuu

foamf,y s whs;sldrsh úh’

Point of contest 12 reads as follows (vide page 344 of the brief) by; i|yka 621 orK

msUqf¾ wxl 1 orK lgsáh 11 ú;a;slref. a yñs lï m%ldYfha i|yka mrsos wehg yñs ù weoao?

The finding of the learned district judge as regards lot 1 is as follows..

ta wkqj tu lene,a, wjqreÿ 10 jevs ld,hla m%;súreoaO whs;shla u; 11 fjks ú;a;sldrsh iy wef.a m¾Q j.dñka

nqla;sú|Su fya;=fldgf.k 11 ú;a;sldrshg Bg ld,djfrdaê whs;shla ,enS we;s njg úksYaph lrñka 12 jk úi|sh hq;=

m%Yakhg wef.a yñs lï m%ldYfha 13 jk fPaofha i|yka lr we;s mrsos jQ ld,jfrdaê nqla;sfha whs;shla wehg ysñ jS

we;s njg úksYaph lrus’ ta wkqj wxl 1 lene,a, úIh jia;=fjka bj;a lrñ’

290

Therefore, it would be seen that the learned district judge has ruled on the

question of prescription strictly guided by the particular point of contest. As he

has decided that the 11th defendant has acquired a valid prescriptive title to the

corpus, namely a distinct and separate portion of Gorakagahawatta the learned

district judge should have declared the 11th defendant to have acquired a

prescriptive title to that portion of the subject matter, without excluding the

same from the corpus. Accordingly the 11th defendant would be entitled to an

undivided 3 roods and 21 perches from and out of the corpus which the learned

district judge should have directed to be allotted to the 11th defendant at the

final scheme of partition as far as practicable from and out of lot 1 depicted in

the preliminary plan. The learned district judge will accordingly make the

necessary amendments to the interlocutory decree.

As regards the identity of the corpus and the improvements, there had been

serious contests among the plaintiff, 3rd defendant and the 11th defendant. The

3rd defendant has claimed the plantations and the improvements in Lot 2 and

also attempted to set out a prescriptive claim for that lot. As has been correctly

observed by the learned district judge the 3rd defendant is a co-owner of the

subject matter in terms of the averments contained in the plaint. Further,

according to the deeds produced marked as 3D1 and 3D2 (deeds of transfer

3593 and 3578) the 3rd defendant has purchased undivided rights. Hence, the

3rd defendant is admittedly a co-owner of the subject matter. The learned

district judge has correctly observed that the failure on the part of the 3rd

defendant to prove ouster by an overt act stands in the way of the prescriptive

claim of the 3rddefendant to lot 2 and therefore his claim for prescription should

necessarily fail. I am totally in agreement with the finding of the learned district

judge on this matter as it is quite consistent with the evidence led at the trial

and the law applicable.

In the circumstances, I am of the view that the grounds of appeal relied upon by

both appellants should necessarily fail. Hence, both appeals stand dismissed.

Judgment of the district court affirmed subject to the variation made at page 10

of this judgment. There shall be no costs of this appeal.


NT/-

PARTITION-PRESCRIPTION-LAW APPLICABLE

291

CA 349/98(F)

D.C.Galle 9305/P

Bentotage Magilin, Meegoda,

Wanchawala

4th defendant-appellant

Vs.

Vidanagamage Peter, Meegoda

Wanchawela

Plaintiff-respondent

1. Kalutotage Keerthisena Wijesekara,

2. Hemalatha Weeraratne,

3. Vidanagamage Pathmasoma

All of Meegoda, Wanchawala

1 to 3 Defendant-Respondents

CA 349/98(F) D.C.Galle 9305/P Judgment A W A

Salam | 25-Oct-10

Before: A.W.A. Salam, J. Counsel: Athula Perera for the 4th defendant-appellant and Lasith Chaminda for the substituted –plaintiff-respondent. Written Submissions filed on:

14.07.200 Argued on: 6.09.2010


Abdul Salậm J.

292

This Partition action was filed by the deceased plaintiff to partition the corpus among the plaintiff and 1st to 4th

defendants in the following proportion. Plaintiff - 2/12

1 st defendant - 1/12


3rd defendant – 4/12

4th defendant – 1/12

It is common ground that the corpus had been left unallotted in Partition action 32842 as per final decree entered in that case. According to the plaintiff the corpus was subsequently prescribed by Kalutotage Janis de Silva, the late father of Wilson, Samson

and Keerthisena (1st defendant). The 4th defendant whilst maintaining that the corpus was originally

left unallotted, raised a contest regarding the prescriptive possession

of Kalutotage Janis de Silva. According to the 4th defendant it was not

alutotage Janis de Silva but his son Kalutotage Wilson who prescribed

to the corpus by long and undisturbed possession. The crux of the

matter therefore was to determine as to who in fact prescribed to the

corpus after it being unallotted in the earlier partition action. If

Kalutotage Janis de Silva had prescribed to the corpus, it should

undoubtedly evolved on his three children Wilson, Samson and

Keerthisena (1st defendant).On the other hand, if Wilson had prescribed

to the corpus the devolution of title to it would materially defer from

the pedigree appended to the plaint and relied upon by the plaintiff.

On this contest, the learned district judge came to the conclusion that

the corpus had been originally possessed after the earlier partition

action, by Kalutotage Janis de Silva and therefore Wilson inherited

only 1/3rd share of the corpus. In coming to this conclusion the

learned district judge has quite correctly relied upon 2D1 and 4D1. The

document marked as 2D1 is a deed of transfer from Kalutotage Wilson

Wijesekera to the 2nd defendant, to wit: deed No.2784 dated

12.9.1984 attested by M.H.Liyanage N.P. In terms of 2D1 Wilson has

transferred an undivided 1/3rd share of the soil of the subject matter

along with a 1/3rd share of the plantation raised by Kalutotage Janis

de Silva. By 4D1, namely Deed No.2127 dated 3rd April 1981, Wilson

has ransferred an undivided 30 perches to the 4th defendant being

property held and possessed by him by right of inheritance from his

deceased father Kalutotage Janis de Silva.

On the above material alone, it is quite evident that the 4th defendant

had no right to maintain the position that her predecessor in title

namely Kalutotage Wilson was the original owner of the subject matter.

As regards the cart road shown in the preliminary plan as lot C there

was no serious opposition offered by the 4th defendant.

The plaintiffs uncontroverted testimony shows that it has been used as

a means of access for a considerable length of time and the learned

district judge has rightly held that it be reserved as a roadway. For the

293

foregoing reasons, I am of the opinion that the appeal preferred by the

4th defendant/appellant merits no serious consideration. Hence, the

judgment of the learned district judge is affirmed and appeal dismissed

subject to costs.


NT/-

294

PARTITION- AMICABLE PARTITION- CONDITIONAL TRANSFER- FINANCE ACT-

MAINTAINABILITY

Case No. CA 744/2001 F

D.C.(Maravila) 252 P

Mahaguruge Joseph Ivan Fernando,

4th defendant – Appellant

Vs

Warnakulasuriya Nicholas Rodrigo,

Plaintiff-respondent

Before : A.W.A. Salam,J.

Counsel: Bimal Rajapakshe for 4th defendant appellant and Manohara

de Silva PC with Pubudinie Wickramaratne for the plaintiffrespondent

Written submissions filed on: 16.02.2006 Decided

on: 02.04.2008.

A.W.A. Abdus Salam, J.

This appeal arises from the judgment and interlocutory decree entered in the

above partition action. By the said interlocutory decree the corpus was to

be partitioned among the parties whom the learned district Judge declared

as co-owners.

Aggrieved by the said interlocutory decree the 4th defendant-appellant

(hereinafter referred to as the “appellant”) has filed the present appeal

seeking to set aside the same and to have the plaintiff’s action dismissed

and/or for an order directing the partition of the corpus reserving the right

in the appellant to move for the redemption of the land that was transferred

to one Sarath Fernando, the immediate predecessor in title of the plaintiff

who became entitled upon a conditional transfer. The said redemption was

sought by the appellant and under by virtue of the provisions of the Finance

Act.

295

There was no dispute touching upon the devolution of title to the corpus.

The identity of the corpus which comprised of lots depicted as 1 and 2 in the

preliminary plan No. 3436 was admitted by the parties at the trial. They

further accepted that one Mrs. W.M. Dabarera was the sole owner of the

corpus at a certain point of time and that she transferred her rights in the

property to her two children the 1st and the 4th defendant respondents, in

equal shares.

In terms of the plaint the 1st defendant respondent (hereinafter sometimes

referred to as the 1st defendant) and the appellant had attempted to

partition the corpus by deed No. 1181 dated 21 November 1976 attested by

W.L. Dondeenu, Notary Public. Even though the parties to P1 were to

partition the land into two lots allotting each party an extent of land

equivalent to an area which is sufficient to grow about 30 coconut plants,

the said partition had not been given effect to or acted upon by the parties.

However the appellant maintained energetically that the amicable partition

was in fact acted upon and the two allotments of land were possessed by the

parties in terms of the amicable partition. The appellant also emphasized

that he dealt with his defined and divided allotment of land as a separate

entity and in fact caused all his transactions posted in distinct folios with

the required cross-references under the Registration of Documents

Ordinance.

Subsequent to the execution of P1, the appellant transferred his rights at

various times and ensured that he re-purchased it except on one occasion.

In the instant case one of the points of contest that calls for attention is the

conditional transfer bearing No. 6065, by which the appellant transferred

his rights to one Sarath Fernando. By this deed the appellant transferred a

divided allotment of land equivalent to an area which is sufficient to grow

about 30 coconut plants subject to the right reserved in him to call for a

retransfer within a period of one year. The plaintiff explicitly takes up the

position that the appellant failed to call for a re-transfer within the

stipulated period and that he purchased the rights of the appellant from

Sarath Fernando on 25.11.1986 upon deed No. 7598. In the result plaintiff

did not show any rights from the corpus to the appellant. The undivided

rights shown to the parties by the plaintiff are as follows.

Plaintiff undivided ½

1st defendant undivided ½ - 1 rood

2nd defendant undivided ½ - 1 rood

3rd defendant undivided ½ - 1 rood

The appellant has raised several contests in this appeal to assail the

interlocutory decree. The contests are these.

296

1. Can the plaintiff have and maintain a partition action by reason of the

execution of P1, subsequent to which the co-ownership in respect of the

corpus had come to an end?

2. Didn’t the appellant intend to transfer the beneficial interest of the

land that was conveyed on the conditional transfer 7598?

3. In any event, should the rights of the plaintiff be allotted subject to the

right reserved in the appellant to exercise the right of redemption under and

by virtue of the provisions of the Finance Act?

Let me first deal with the extent to which the action is maintainable, in the

light of the deed of amicable partition (P1) and the evidence of the appellant

that he dealt with his share of the land as a distinct and separate entity.

It is well settled law that to maintain a partition action, the subject matter of

it should belong in common to two or more persons If the undivided interest

of a co-owner of a land has been converted into divided interest either by

prescription or amicable partition, then the law does not permit the co-

owner to resort to the provisions of the Partition Act. The underlying

principle behind this is that the land has already ceased to be in the

common ownership of the co-owners. Therefore it would be correct to say

that the question that loomed large at the trial was whether the common

ownership of the subject matter came to an end with Pl or whether such

ownership continued unchanged as P1 was a document that was entered

into for convenience of possession.

No doubt the parties had made an attempt to put an end to the common

ownership by entering into the purported amicable deed of partition. But

the question remains to be addressed is whether P1 is capable of converting

the undivided interests of each party into a divided and defined allotment, so

as to shut the plaintiff out from having recourse to a partition action.

It is pertinent at this stage to consider the contents of the purported

amicable deed of partition and its impact on the present action. Quite

surprisingly the deed of partition does not refer to a plan of partition. The

common boundary

of the two lots as described in the deed of partition deserves to be noted. The

two divided lots are set out in schedules 1 and 2 of the deed of amicable

partition whilst the larger land is set out under schedule 3. In P1 the larger

297

land has been described as an area within which 60 coconut plants can be

grown. In schedules 1 and 2, the purported extent of the divided and

defined allotments of lands are described as an area in which about1 30

coconut plants can be grown. The use of the word “about” (“fmd,a.ia 30 la

muK bojsh yels jsYd, bvfus”& to describe the extent of the block of land

allotted to each co-owner is demonstrative of the imprecise nature of the

alleged amicable partition that could lead to confusion. In the absence of

reference being made to a survey plan to identify the exact divided extent

with its meets and bounds allotted to each co-owner, make it remarkably

difficult to ascertain with firmness as to whether the parties to P1 had in

fact intended to put an end to the continuity of co-ownership. Admittedly,

there was no physical boundary separating the two allotments of land set

out in schedules 1 and 2 of deed of amicable partition P1.

The appellant has admitted that there is no separate road for his block and

there is not even a fence along the common boundary. The appellant sought

to justify the absence of a common physical boundary by stating that no

such boundary is necessary as the partition took place between two

brothers I am not inclined to accept the explanation of the appellant as

being the actual reason for the absence of a common boundary.

1 Emphasis is mine

The evidence of appellant that he dealt with his block of land as a separate

entity both in the deeds and at the land registry is of no use in the light of

the facts that negate the intention of the parties to put an end to the

common ownership. As pointed out in the case of Abeysingha versus

Abeysingha 47 and in 509 “the mere fact of execution by co-owners of

deeds dealing with specific divided portion does not per se establish that

there was an arrangement arrived at by the co-owners to divide the land in

such a manner that title laws to be affected”.

The evidence led at the trial does not show that the block of land claimed by

the appellant in the least degree has acquired the character of a separate

land no longer forming part of what was once a large land within which 60

coconut plants can be grown.

The document marked as P1, mode of possession of the corpus, want of

adverse possession, absence of a survey plan and free access to the corpus

have significantly contributed to the finding that the deed of amicable

partition has been entered into merely for purpose of convenience. In the

circumstances the objection raised with regard to the maintainability of the

partition action should necessarily fail.

298

The next question that arises for consideration is whether the appellant has

retained the beneficial interest of the undivided shares owned by him from

and out of the subject matter when he transferred rights to Sarath Fernando

on deed No. 6065. Suffice it would be to say that the ruling of the leaned

district Jduge on this question is based on the correct proposition of law

that a conditional transfer cannot give rise to a constructive trust, as has

been held in many cases.

The issue that needs to be addressed next is the right of redemption of the

land conveyed to Sarath Fernando by the appellant on P92. The said

document marked on 4 April 1985. According to the said deed the property

transferred had to be repurchased within the period of one year, i.e. on or

before April 3, 1986. Admittedly the appellant has not repurchased property

as stipulated in P9. Sarath Fernando has therefore transferred his rights to

the plaintiff in this case is on 25th November 1986 upon deed No. 7598

marked as P10.

According to the evidence led through Sivasambu Kulendran, Deputy

General Manger of the Peoples Bank the appellant has applied on

13.12.1992 for the redemption of the property which was the subject matter

of the conditional transfer. The said application has been registered by the

bank under reference

KA /M/KD/DR2796. By letter dated 29/1/1993

2 Deed No. 6065

the bank acknowledged the receipt of the application of the appellant made

under section 71 (1) (D) of Act No. 11 of 1963 and informed the appellant

that action would be taken on the said application upon the conclusion of

the partition proceedings, if steps are taken to have the rights affected by

the conditional transfer allotted subject to the rights under the Finance Act.

The point of contest raised with regard to the redemption rights of the

appellant has not been considered by the learned district Judge in his

judgment. Although the learned district Judge has come to the conclusion

that the appellant made an application under section 71 D of the Finance

Act, he has failed to consider the consequences thereof. In other words the

learned district Judge has failed to consider as to whether the rights of the

plaintiff should be awarded subject to the rights of the appellant, under the

Finance Act, on the application.

299

At this stage it is pertinent to refer to the stage at which the appellant

sought the relief that the rights of the plaintiff should be allotted subject to

the relief the appellant may obtain under the Finance Act, Let me at this

stage briefly referred to the important events that took place with regard to

the condition of transfer.

1. The conditional transfer was executed on 04.04.85.

2. The appellant was obliged into call for a re-transfer on or before 03-

04-86 that was further extended to 03-10-86.

3. The plaintiff has obtained a transfer in his favour of the property

conveyed upon the conditional transfer on 25thof November

1986.

4. The partition action has been instituted on 12-02-90.

5. The appellant filed his statement of claim seeking a declaration that

the property transferred on conditional transfer is subject to a

constructive trust, on 05-07-91.

6. The application 4D10, for the redemption of the property that was

subject to the conditional transfer was made to the People’s

Bank under the Finance Act, by the appellant on 13-12-92.

7. Receipt of 4D10 has been acknowledged by the People’s Bank by letter

dated 29-01-93. (Vide 4D9).

8. The appellant filed an amended statement reiterating for the relief of

constructive trust and the additional relief that the rights

conveyed on the conditional transfer should be awarded to the

plaintiff subject to the rights of the appellant to move for the

redemption of the same under the Finance Act, on 20-04-93.

From the sequence of events enumerated from 1 to 8 above, it would be seen

that the appellant has made the application for the exercise his right of

redemption under the Finance Act long after the institution of the partition

action. In the first statement of claim dated 05.07.1991, the appellant did

not seek any relief relating to his purported statutory redemption rights.

This is because he has not made an application under the Finance act at the

time he filed his first statement of claim.

In the second statement of claim filed by the appellant on 20-04-93, in

paragraph 16 he took up the position that an application has been made

by him on 19-12-92 to the People’s Bank in terms of section 71 (1) (d) of the

Finance Act. Accordingly in the amended statement of claim the appellant

inter alia sought the relief that the rights to the plaintiff to the subject

matter (if any) be declared to be entitled to, subject to the rights of the

appellant to seek redemption of the rights conveyed under the conditional

transfer.

300

There is no doubt that such a relief is not prohibited in law. In the case of

Mahindasoma Vs. Gunawardena and others 1986 volume 1 SLR page 207,

it was held that in partition action filed by the bona fide purchaser, the

rights awarded him will be subject to the rights of the original transfer is

conditional transfer may get from the People’s Bank on the application made

to it which preceded the institution of the partition action.

As far as the application of the appellant made to the People’s Bank for

redemption of the property conveyed to Sarath Fernando on a conditional

transfer is concerned, it is entirely within the exercise of the power vested in

the bank to consider as to whether the land owned by the appellant and the

relevant time should be acquired.

In the instant case it should be emphasized that the application for

redemption of the property concerned has been made long after the

institution of the partition action. The said application had been dispatched

to the bank even after the appellant filed his first statement of claim. In

reality the application made to the People’s Bank by the appellant is an

afterthought. It has been made nearly after 6 years and 2 months of the

lapse of the conditional transfer, two years after the institution of the

partition action and 1 year and 5 months after the filing of the statement of

claim of the appellant. Therefore the said application has not preceded the

partition action. (Emphasis is mine).

In the case of Mahindasoma Vs. Gunawardena (supra) it was clearly held

that to invite a court to consider declaring the rights of a particular person

subject to section 71 of the Finance Act, the application for redemption of

the property should necessarily precede the institution of the partition

action.

The appellant in this case has for a period of 6 years and 2 months slept

over his rights. The aim of the Finance Act inter alia is to extend a helping

hand to those who have lost their lands as a result of having to raise loans

against such properties. However the title of a bona fide purchaser should

not be declared to be subject to the Finance Act the application to the

People’s Bank is made prior to the institution of the partition action.

301

In the circumstances, in my opinion the learned district Judge was right in

refusing to grant the appellant the relief sought by him in the amended

statement of claim.

For the foregoing reasons the appeal should necessarily fail.

Appeal dismissed subject to costs.

Sgd/Judge of the Court of Appeal.

744 2001 Maravila

I do hereby certify that the foregoing is a true copy of the judgment dated

24.2008 filed of record in CA Appeal 744/2001 (F).


PARTITION-FAILURE TO APPRECIATE THE BURDEN

OF PROOF OF CERTAIN FACTS-

WHERE THE PLAINTIFF HAS IN A CIVIL CASE LED THE EVIDENCE SUFFICIENT IN LAW TO PROVE A FACTUM

PROBANDUM, THE FAILURE OF THE DEFENDANT TO ADDUCE EVIDENCE WHICH CONTRADICTS IT ADDS A NEW

FACTOR IN FAVOUR OF THE PLAINTIFF.

C. A.1218/98 (F)

D. C.Kandy Case No.13384/P

Rosemary Seneviratne,

No.332/2, Peradeniya Road,

Kandy.

Now residing at 88, Kelvin Street,

302

Maylands, WA 6051, Australia.

Plaintiff

Vs.

1. Kingsly de Zoyza

No.75, Victory Road,

Airport West,

Victoriya 3042,

Australia.

2. Yvonme Therese Labrooy,

38, Crocker Way, Innaloo,

WA 6018, Australia.

3. Milroy Anthony de Soyza,

Bournemouth Crescent,

Wembley Downs, Perth,

West Australia 6019.

4. Anesly Aloysius de Soyza,

7, Chaplin Place, Issacs,

Canberra Ant 2607. Now residing at 23, Dutugamunu

Mawatha, Lewella, Kandy.

5. Cinthia Vanden Driesen,

11, Loftus Street, Nedlands,

W A 6009, Australia.

6. Maureen Rita Goldstien,

12404, High Drive, Leawood,

Kansas, U.S.A.

7. Gamini Thalawatta


Kandy.

8. Jamaldeen Mohamed Farook, (deceased)

9. No.334, Peradeniya Road,

Kandy.

10. Jareen Farook widow of

Jamaldeen Mohamed Farook,

11. Ramsenara Farook now jaufer.

12. Mohamed Nazeem Farook,

303

13. Mohamed Hasari Farook

All of No.334, Peradeniya Road, Kandy.

Defendants

Jareen Farook widow of Jamaldeen

Mohamed Farook ,

1. Ramsenara Farook now jaufer.

2. Mohamed Nazeem Farook,

3. Mohamed Hasari Farook,

All of No.334, Peradeniya Road, Kandy

9th ,10th 11th and 12th Defendants-Appellants

Vs.

Rosemary Seneviratne


Kandy.

Now residing at 88, Kelvin Street, Maylands, WA 6051, Australia.


1. Kingsly de Zoyza

No.75, Victory Road,

Airport West,

Victoriya 3042,

Australia.

2. Yvonme Therese Labrooy,

38, Crocker Way, Innaloo,

WA 6018, Australia.

3. Milroy Anthony de Soyza,

Bournemouth Crescent,

Wembley Downs, Perth,

West Australia 6019.

4. Anesly Aloysius de Soyza,

7, Chaplin Place, Issacs,

Canberra Ant 2607.

Now residing at 23, Dutugamunu Mawatha, Lewella, Kandy.

304

5. Cinthia Vanden Driesen,

11, Loftus Street, Nedlands,

W A 6009, Australia.

6. Maureen Rita Goldstien,

12404, High Drive, Leawood,

Kansas, U.S.A.

7. Gamini Thalawatta


Kandy.

8. Jamaldeen Mohamed Farook,

(deceased) No.334, Peradeniya Road,Kandy.

Defendant respondents

N R M Daluwatta PC with Murshid Mahroof for the defendant appellants

Harsha Soza PC with Shihan Samaranayaka for the 3,4,6 defendant appellant

LC Seneviratne with Ms UHK amunugama and Ms N Karunathilaka for the Plaintiff Respondent.

Written submission tendered : 29.03.2006 and 16.05 2006

Decided : 07.06. 2007

Abdul Salam J

The plaintiff respondent instituted this case, for the partition of the subject

matter of the action, owned in common allegedly by the plaintiff and 1 to 7

defendant respondents.

The 8th defendant, who occupied a building on the subject matter, was made a

party to the case, presumably to give him notice of proceedings. On the day

fixed for the return of the preliminary commission, certain parties, claiming to

be the sole legal heirs of the 8th defendant, filed their proxy and were brought

into the case as 9, 10, 11 and 12 defendants.

In this judgment whenever it requires to refer to the plaintiff respondent, 1 to

7 defendants and 9 to 12 defendants, for purpose of convenience, I propose

305

to refer to them as “the plaintiff”, “the defendants” “the contesting

defendants” respectively.

Admittedly, at a certain point of time material to this action, the land which is

the subject matter of partition, was owned by three brothers in proportion of

undivided 1/3rd share each. They are

(1) Kenneth William Denzil Soyza (2)

Lucas William de Soyza and

(3) Elmo Spencer de Soyza.

There is no disagreement that the rights of the first two brothers Kenneth and

Lucas devolved on the plaintiff and defendants. The contest between the

plaintiff and defendants on one side and the contesting defendants on the

other side was the succession to the rights of Elmo Spencer de Soyza[1].

Regarding the devolution of the rights of “Elmo”, the plaintiff took up the

position that he died without marriage and issues and his rights in the land

devolved on the two surviving brothers, Kenneth William Denzil Soyza and

Lucas William de Soyza. In opposition, the contesting defendant’s position was

that Elmo died, leaving as his intestate heirs widow Somawathie de soysa nee

de Silva and children Punchi Banda alias Percy de Soysa and Mearlyn de Soysa.

The contesting defendants claim that the rights of the said legal heirs of Elmo

passed on to the 8th defendant.

Regarding the marital status of Elmo, the Learned district Judge held that at the time of his death, he was married to Somawathie and an undivided share of 1/6 (1/3 of 1/2= 1/6), should devolve on the widow Somawathie. The plaintiff and

the defendants, against whom the finding operates, did not prefer an appeal

against the same. For this reason, the question regarding the marital status of

Elmo remains resolved, once and for all to bind the world at large.

The dispute remains to be resolved, is whether the balance share of 1/6 of

Elmo should devolve on the two brothers as asserted by the plaintiff or it

should pass on to his two children as claimed by the contesting defendants.

The learned district Judge has refused to accept Punchy Banda alias Percy de

Soysa and Mearlyn de Soysa as the children of Elmo, primarily due to the

failure of the contesting defendants, to lead the evidence of Somawathie or at

least one of the children or any other person competent to testify on such

306

heirship. The neglect to produce the certificates of birth of the said children

has greatly influenced the district Judge to conclude that Elmo left no children

to succeed to his rights.

As regards the non-production of the birth certificates the learned President's

counsel of the defendants, has submitted that in order to prove the paternity

of the two children, the contesting defendant should have produced them and

their failure should necessarily result in the decision, the learned trial judge

arrived at.

On this matter, the evidence of the plaintiff was that Elmo was not married and

that his rights are said to have devolved on the two brothers. (Emphasis is

mine) The relevant testimony of the plaintiff in the proceedings reads in its

original form as “Tyqf. a whs;sh .shd lshkafka ifydaorhskag This evidence of the plaintiff

confirms her poor knowledge of the mode of devolution of Elmo’s rights.

The learned district judge disbelieved the plaintiff’s version that Elmo died as a

bachelor. Elmo referred to here is the youngest brother of the plaintiff’s

father. Let us be reminded, that no appeal was preferred by the plaintiff

against the finding that Elmo died leaving his widow. It is surprising to observe

that the learned district judge who disbelieved the plaintiffs testimony as to

the civil status of late Elmo, to decide the question on a balance of probability,

has relied on the same evidence of the plaintiff that Elmo died issueless,

without giving due weight to the evidence of the 11th defendant who

positively claimed that Elmo not only died having contracted a valid marriage,

but leaving two children.

In fact, under cross examination the plaintiff has failed to reveal a satisfactory

account of Elmo’s affairs, which by itself is adequate to warrant the inference

that she was unaware of those details. When she was questioned as to his

employment, the plaintiff at the outset disclaimed any knowledge. Later when

she was questioned, by suggesting the answer, she stated that Elmo worked

for Ceylon army. When questioned as to the period during which he served the

army, the plaintiff was not able to give a satisfactory reply. When called upon

to divulge as to whether Elmo lived at Diyathalawa, the plaintiff stated that she

has no knowledge, on that matter either. When the plaintiff was specifically

asked as to whether she does not admit the marriage, as she is uninformed of

those matters, her prompt answer was in the affirmative. This clearly shows

the poor knowledge of the plaintiff, as to the details of Elmo.

307

The 11th defendant Mohamed Naseer Farouk denied in his evidence the civil

status attributed to Elmo by the plaintiff. He also denied in a like manner that

Elmo died issueless. In his evidence he referred to the names of the two

children, Elmo left behind. He further stated that his father Farouq purchased

the undivided shares of Elmo from his legal heirs, namely Somawathie, Punchi

Banda alias Percy de Soysa and Mearlyn. The deed upon which his father

purchased the rights of Elmo has been produced marked as 11D1.

The learned district judge’s finding on this matter was that the contesting

defendants had failed to establish that Elmo is the father of the two children

concerned. In order to rationalize his finding, amongst other reasons, he

attributed the failure on the part of the contesting defendants to produce

documentary evidence to demonstrate that the said children were born during

the lawful wedlock of their parents.

Dealing with this question, the trial judge proceeded on the assumption that it

is obligatory to produce the birth certificates to prove paternity. He made a

special reference to the neglect on the part of the contesting defendants, to

produce them. He considered the birth certificates as best evidence to prove

that they were born to Elmo Spencer and Somawathie during their lawful

wedlock. For purpose of easy reference, the relevant passage from the

judgement of the learned district judge, in its original form is reproduced

below.

m¾is iy u¾,ska fuu jsjdyfhka Wmk a orejka nj ikd: lsrSu i|yd f,aLK.; idlaIs lsisjla bosrsm;a lr ke;’ ta i|yd fyd|u idlaIsh jkafka Tjqkaf.a Wmamekka iy;sl fõ’ kuq;a tu iy;sl kvqj i|yd bosrsm;a lr ke;’ tjeks jeo.;a f,aLK.; idCIhs la fï iïnkaOfhk a bosrsm;a fkdlsrSu ms<sn|j m%udKj;a fya;=jla js;a;sfhka olajd o ke;’ iafmkia ¾o fidhsidf.a iy fidauj;S o is,ajdf.a jsjdy iy;slh fidhd .ekSug js;a;shg yelshdj ;snqks kï” Tjqkaf.a orejk a hhs lshk u¾,ska hk whf.a Wmamekak iy;sl fidhd .ekSug fkdyels jSug fya;=jla ke;’

The learned district judge held that the non-production of the birth certificates

of the children gave rise to a suspicion as to whether two of the signatories to

deed 11 D1 are in fact the children of the said Elmo Spencer.

The learned President's counsel of the contesting defendants has strenuously

argued that there is an error pertaining to the burden of proof in a civil case,

when the learned district judge brought in the element of suspicion. It is

elementary principle of law relating to standard of proof that no burden is cast

308

on a party in a civil case, to remove all suspicions or to prove a fact in issue or a

relevant fact beyond suspicion or doubt, be it reasonable doubt or otherwise.

What the learned district judge has stated on that matter, perhaps be relevant

and applicable, in a criminal prosecution, when it comes to the question of

standard of proof to be discharged by the prosecutor. This being a civil case,

the district judge should have addressed his mind to the balance of

probabilities, in the ascertainment of the truth, in so far as it relates to the civil

dispute.

The learned President's counsel has submitted that the learned district judge

has misdirected himself with regard to the burden of proof generally and in

particular when he stated that there was an obligation on the part of the

contesting defendants to have produced the certificates of birth to prove their

case. As regards the basis of this finding, I am totally in agreement with the

learned President's counsel, that the learned district judge has misdirected

himself with regard to the standard of proof, when he came to the conclusion

that the contesting defendants have failed to prove, thatPunchi Banda alias

Percy de Soysa and Mearlyn de Soysa are the children of Elmo.

In this respect it has to be mentioned that the learned district judge, has failed

to appreciate the principle enunciated in the case of L.Edrick de Silva Vs

Chandradasa de Silva 70NLR 169 at 174. The passage from the judgment which

deals with the said principle is reproduced below.

“But where the plaintiff has in a civil case led the evidence sufficient in law to prove a factum probandum, the failure

of the defendant to adduce evidence which contradicts it adds a new factor in favour of the plaintiff”.

It is the version of the contesting defendants that Elmo died leaving his widow

Somawathie and two children. In order to prove the contract of marriage

which they relied upon, they produced the marriage certificate. Evidence was

also given by the 11th defendant to the effect that the heirs of Elmo are the

aforesaid Somawathie, Punchi Banda alias Percy de Soysa and Mearlyn de

Soysa. To substantiate it further, the contesting defendants produced 11D1,

which was jointly executed by the heirs of Elmo, who parted with their rights to

the 8th defendant.

The plaintiff has closed her case in the district court on 14th October 1997.

According to the proceedings she has produced documents marked as P1 to

P9, X and X1. Yet, the learned district judge in his judgment refers to document

309

marked as P11, P13 and P13A. On a perusal of the documents produced by the

plaintiff dated and initialed by the Judge who presided, it appears that the

documents produced are marked from P1 to 13A.

P10 is a certified copy of the amended plaint filed in the previous partition

action, for the partition of the same land, by Percy de soysa, Somawathie Soysa

and Dotty Mearlyn de soysa, as the 1st 2nd and 3rd plaintiffs, way back in the

year 1970, against Lucas William Soysa and certain others. In that case the

plaintiffs have claimed 1/3 share of the land by right of inheritance from Elmo.

P 12 is the Journal entry dated 9th October 1978 (JE 50), which confirms that

the plaintiffs in that case have withdrawn the partition action subject to the

liberty reserved in them, to file a fresh action, if necessary. The document

marked as P11 is the preliminary survey report in the partition action.

According to the preliminary survey report P11A, at that survey, 1st and 2nd

plaintiffs and Farouk (the 8th defendant in this case) in his capacity as the

representative of the 1st defendant had been present. This clearly shows that

both Percy de soysa and Somawathie were present at the survey. The learned

district judge refers to the preliminary survey report P11 to reason out his

finding that Farouk, the 8th defendant, was only a tenant of the 1st

defendant[2] and that his character as a tenant has not got altered.

At this stage, it is convenient to refer to the omissions on the part of the

learned district judge to consider important items of evidence, which he was

under a duty to consider, to determine the question as to whether Punchi

Banda alias Percy de Soysa and Mearlyn de Soysa are the children of Elmo. The

evidence which the learned district Judge has thus failed to consider can be

itemized as follows.

1. The fact that the legal heirs of Elmo filed the earlier partition Case and their

status to file the same not having been objected to by the predecessors in title of

the plaintiff.

2. The contents of the survey report, in the earlier partition action where the

surveyor has noted the attendance of the 1st and 2nd plaintiffs, Percy de Soysa and

Somawathie.

3. The marriage certificate of Elmo and Somawathie, insofar as is relevant to

determine the consistency that the two children named by the contesting

defendants can be the children of Elmo.

310

4. The fact that 8th defendant, purchased rights from the legal heirs of Elmo on

1st December 1978, namely seven weeks after the dismissal of the partition action.

5. The fact that the 8th defendant had met two of the heirs of Elmo at the

preliminary survey.

In addition, the learned district judge has also failed to take into account, the

absence of any positive evidence, from the plaintiff’s side that the persons who

executed deed 11 D 1, were outsiders and that they preferred a false claim.

When the learned district judge rejected the claim of the plaintiff, that Elmo

died without marriage and issueless, it is quite significant to note that the only

evidence, which remained uncontradicted, was the version of the contesting

defendants that Elmo was married and he left behind the widow and 2

children. In this respect, it has to be observed that the learned district judge

has erred in evaluating the evidence, on the question of paternity of the two

children, in the light of the legal principle set out in the judgment reported in

70 NLR 174. In my judgment, once the trial judge rejected the evidence of the

plaintiff, what remained was the uncontradicted testimony of the 11th

defendant. As such he had no alternative than to hold, that the two children

named by the 11th defendant and the contesting defendants are none other

than the legal heirs of Elmo.

The next question that arises for consideration is whether it was correct on the

part of the trial judge to have rejected 11D1, on the basis that the contesting

defendants have failed to prove the same.

The document 11D1 was produced subject to proof. However when the

contesting defendants closed their case reading in evidence 10D1 to 11D 1, no

objection was taken up by the Plaintiff. The learned President's counsel of the

contesting defendants has contended that 11D1 should be taken as proved. In

order to meet this argument the learned President's counsel of the defendants

submitted that the failure of the party who insisted on the proof of a deed to

have it recorded at the close of the case of the party who produced it, cannot

be taken as being proved, in the absence of any evidence adduced in terms of

section 68 of the evidence ordinance. He further contends that a deed

affecting a land is required by law to be notarially attested and that when such

a deed is sought to be produced as evidence in a case subject to proof, its

execution can only be proved in the manner prescribed by section 68 of the

311

evidence ordinance. In the circumstances, his contention is that the finding of

the learned district judge that 11D1 was not proved, should be upheld.

The document marked as 11D1, came to be produced through the plaintiff,

under cross-examination, by the counsel for the 11th defendant. The deed

being a crucial document to the main dispute, the plaintiff appears to have

insisted that it be proved. Subsequently, the trial judge allowed the document

to be marked, subject to proof. When a document is allowed to be marked,

subject to proof, it meant that the judge put the 11th defendant on the alert

that the contents of 11D1 would not be considered as evidence, unless it is

proved. Proof in this context means proof of due execution. What constitutes

proof of due execution is found in section 68 of the evidence ordinance. The

evidence ordinance provides that if a document is required by law to be

attested, it shall not be used as evidence until one attesting witness at least

has been called for the purpose of proving its execution, if there be an

attesting witness alive, and subject to the process of court and capable of

giving evidence.

On the contrary, section 68 of the partition law provides that it shall not be

necessary in any proceedings under this law to adduce formal proof of the

execution of any deed which on the face of it purports to have been duly

executed, unless the genuineness of that deed is impeached by a party

claiming adversely to the party producing that deed or unless court requires

such proof. Incidentally, section 68 of the partition law can be argued, as an

exception to the rule embodied in section 68 of the Evidence Ordinance.

The plaintiff or the defendants in this case never took the trouble to impeach

the genuineness of 11D1, on any of the grounds known to the law. As a matter

of fact, the plaintiff, insisted on formal proof of the execution of 11 D1,

although the Partition Law required no such proof, in the absence of the

plaintiff, (as it has occurred in this case), impeaching the genuineness of the

deed. As it can be seen from the proceedings, neither the court insisted on

formal proof of 11D1, under section 68 of the partition law.

Undoubtedly, the partition law No. 21 of 1977 being a later and special piece

of legislation should prevail over section 68 of the evidence ordinance, and

formal proof of a deed, can only be insisted if the genuineness such a deed has

been impeached.

312

11D1 on the face of it purports to have been duly executed. Even the

consideration on the deed 11D1 has passed before the notary. In the

circumstances, whether the plaintiff can be heard to say that the deed in

question has not been proved is extremely doubtful.

Above all, what is more significant as regards 11D1 is the failure on the part of

the plaintiff to object to the deed at the close of the contesting defendant’s

case. The learned district judge has failed to follow the principle laid down in

Sri Lanka Ports Authority Vs Jogalinija - Boat East (1981) SLR 18 Sri Lanka Ports

Authority Vs Jogalinija - Boat East (1981) SLR, when it came to the conclusion

that 11D1 was not proved.

Admittedly, the 8th defendant was a tenant of premises bearing No 334. He

has purchased interest in the subject matter together with rights of the

building bearing assessment No 334 from the legal heirs of Elmo. Thus, he

became entitled to an undivided 1/3 of the land and a like share of the house.

11D1 has been executed on the 1st of December 1978, i.e at least 15 1/2 years

prior to the institution of the present action. He has obtained registration of

his name, in the rate registers maintained by the municipal Council.

When the learned district judge came to the finding that the owners have

prescribed to their shares of the subject matter that includes the shares of

Elmo as well. In the circumstances, to come to the conclusion that the 8

defendant have not prescribed to their share of the land and premises would

be inconsistent with the answer already given to issue No 4, as it is interwoven

with the contesting defendants issue No 12.

Consequently, 8th defendant would become the owner of an undivided 1/3 of

the house bearing assessment No 334 and probably a non-owner occupant of

the balance 2/3 share of the house.

In passing I would like to have it placed on record that the question as to

whether Somawathie signed her name or placed the mark and left thumb

impression can have no bearing as to the authenticity of the deed in question.

The duty of the notary when anybody signs with a mark is to require such

person to affixed to the deed the impression of his left thumb and shall write

over such impression the word “this is the left thumb impression of ……[3]”

313

Besides, it is very unlikely that a person who wants to forge the signature of

some other person, who has been able to write previously, would fraudulently

place the thumb impression, to show that such impression is that of the person

whom he impersonates. A person who thus attempts to do this runs two

enormous risks. The initial risk is that the perpetrator of such a crime leaves

unchallengeable evidence of his thumb impression on the document to prove

his participation in the crime. Secondly, he leaves concrete proof to ascertain

as to whether the thumb impression, he fraudulently affixed, in fact is that of

the person whom he attempts to impersonate.

Nevertheless, in the absence of any positive allegation made by the plaintiff,

the learned district judge should not have embarked on an unnecessary

investigation to ascertain, as to the reason that compelled somawathie, to sign

the deed with a mark, instead of writing her name, which she could do 35 year

ago.

Originally, this case has been instituted against Jaladeen Mohamed Farouk who

is 8 defendants. Thereafter, 9, 10, 11 and 12 defendants have been

substituted, in his place. Since the original action has been instituted against

the 8th defendant, I consider it safer, to allot undivided shares to the

substituted defendants, strictly as the legal heirs appointed for the limited

purpose of prosecuting the 8th defendants cause. This course of action will

ensure that the rights of the other legal heirs of the 8th defendant (if any) who

may have been left out in this case, are not affected by this judgment.

In the circumstances, the point of contests, improperly answered by the

learned district judge, should be answered, in the following manner.

1) No

2) No

3) No

7) Yes

8) Yes

9) Yes

12) Yes

13) It is a matter left to the Commissioner, on which the court will have to

take a final decision, in approving the scheme of partition.

14) Does not arise at this stage.

15) Not proved 16) As 13 above.

314

In the result the rights of Kenneth William Denzil Soyza and Lucas William de

Soyza ( undivided 1/3+1/3= 02/3) would devolve on the plaintiff and 1 to 7

defendants. The rights of Elmo Spencer de Soyza (undivided 1/3) would pass on

to the 8th defendant, subject to any will made by him or the law of inheritance

applicable.

Subject to the variations, the judgement and interlocutory decree, entered by

the learned district judge are affirmed, with costs payable by the plaintiff to

the contesting defendants.

Enter amended interlocutory decree.

Sgd.Judge of the court of appeal

KLP/-

I do hereby certify that the foregoing is a true copy of judgment dated

07.06.2007 filed of record in C.A.Appeal No. 1218/98.

Typed by.

Compared with Chief Clerk.

Court of Appeal

[1] Referred to in the rest of this judgment as “Elmo”

[2] In the previous action

[3] Section 31 (15) of the notaries ord.

315

PARTITION-PRESCRIPTION-LACK OF EVIDENCE ON

OUSTER.

Prescriptive claim by the 3rd defendant-investigation of title on the basis that the 3rd defendant was

a co-owner.. Failure of the 3rd defendant to give evidence and failure to prove ouster by any overt

act. No evidence led on behalf of the 3rd defendant as to any manner of possession. In the

circumstances, the investigation carried out by the learned district judge in the light of the respective

cases presented by the parties appears to be quite satisfactory and warrants no intervention of this

court. As has been submitted on behalf of the plaintiff the judgment of the learned district judge and

the reasons adopted by him are not at all perverse to be overturned as cogent reasons have been

adduced for his conclusion.

--------------------------------------------------------------------------------------------------------

A W Abdus Salam, J.

This is an appeal by the 3rd defendant allowing the Partition of the land

consisting of Lots C1 and D of “Polkotuwewatta Pawula Owita”. The two

plaintiffs are sisters. They claimed that the action is for the partition of the

corpus shown in plan No 1608 dated 19 February 1970 made by H

Wijesundera, Licensed Surveyor, filed of record in DC Kalutara P 3228. It

is common ground that the corpus in the present action was excluded in

that action. For purpose of this action the corpus consisting of lots C1 and

D of Polkotuwewatta Pawula Owita is depicted in the preliminary plan No

288 dated 23 August 1993 made by K D L Wijenayaka, Licensed Surveyor

and Court Commissioner as C1 and D.

According to the plaintiffs the original owner of the corpus was one

Mariyanu Fernando who died leaving behind four children, each child

inheriting ¼ share. The last child named Andiris Fernando having inherited

316

¼ share from his mother had by deed No 10038 dated 2 February 1910

transferred his rights to Gardenia Fernando who died leaving the 2nd and

3rd defendants who thus became entitled to an undivided 1/8 share each.

The undivided rights of the other three children of Marianu Fernando

devolved on the plaintiffs and the 1st defendant. Accordingly, in terms of

the plaint the devolution of title of the original owner was set out to be as

follows…






It was only the 3rd defendant who filed a statement of claim in opposition to

the plaint. However in her statement of claim the 3rd defendant did not

contest the identity of the corpus set out in the plaint and depicted in the

preliminary plan. She specifically pleaded in her statement of claim that the

devolution of title shown by the plaintiff does not relate to the land in

question and that she alone was in exclusive possession of the corpus and

had acquired a valid prescriptive title. The 3rd defendant therefore sought a

dismissal of the partition action on that ground. At the trial the plaintiff gave

evidence and closed his case reading in evidence documents marked X, XI

and PI to P8. None of the defendants gave evidence at the trial nor did they

call any witnesses to testify on their behalf. They did not produce any

documents either.

317

The learned district judge after considering both oral and documentary

evidence adduced at the trial came to the conclusion that the allotments of

land sought to be partitioned by the plaintiffs are lots C1 and D of

“Polkotuwewatta Pawula Owita” as depicted in plan No 288 made by K D L

Wijenayaka, Licensed Surveyor and Court Commissioner. He rejected the

contention of the 3rd defendant that she had acquired a prescriptive title to

the corpus. Accordingly, the learned district judge entered interlocutory

decree and allotted undivided shares to the parties as set out in the plaint

and directed that the land be partitioned among them accordingly.

As far as this appeal is concerned, one area of contention was the alleged

improper identity of the corpus. The learned counsel of the 3rd defendant

contended that the corpus had no fences or other physical boundaries on

the ground to identify its limits. He has further submitted that part of the

permanent buildings marked d2 and a2 on the corpus where the rest of the

said buildings are found in the adjoining land to the West and claimed by

the 3rd defendant are suggestive of the corpus being part of a larger land

possessed by the appellant. In other words the learned counsel has made

the persistent attempt to show that there has been no proper investigation

by the learned district judge as to the proper identity of the subject matter

which he says is only a part of a larger land. In this context he has

highlighted the discrepancies with regard to certain boundaries arising as

between the schedule to the plaint and some of the deeds produced by the

plaintiffs. His position is that the North, South and West of the land and the

boundaries given in the schedule to the plaint are different from some of the

documents produced at the trial.

Arising on this contention it must be observed that from the very inception

the 3rd defendant has represented matters that the corpus identified by the

plaintiff in the plaint and also in reference to the preliminary plan is

318

faultless. She does not dispute the assertion of the plaintiff that the corpus

in this case had been excluded in the earlier partition action. Furthermore,

she claims that it was at her instance the exclusion was made in the earlier

partition action. She has not elected to point out to the surveyor at the

preliminary survey that the subject matter is a part of a larger land or not an

independent entity or different from what has been described in the

schedule to the plaint. Above all she had categorically admitted that the

land sought to be partitioned has been correctly depicted in the preliminary

plan. She did not raise any points of contest touching upon the identity of

the corpus either. No commission has been taken out by the 3rd defendant

to substantiate a different position with regard to the identity of the corpus

proposed by the plaintiffs. She neither called witnesses to establish a

different position as regards the identity of the corpus nor did she elect to

testify herself on that matter. In the circumstances, it is hardly possible to

accept her contention that the land sought to be partitioned is in fact is not

the same as what the plaintiffs represented it to be in the plaint and the

document marked as X. In this respect, I think what has been pointed out

by the plaintiff in relation to the investigation of title which need to be limited

to pleadings, admissions, points of contest, and evidence both oral and

documentary should be equally made applicable to the question of

identification of the corpus as well, unless very strong grounds are urged to

step outside the case presented by both parties. As has been pointed out

by the plaintiff the court cannot go on a voyage of discovery tracing the title

and find the shares in the corpus for the parties. In the same manner it is

practically impossible for the court to engage on a wild goose chase in the

ascertainment of the identity of the subject matter, when the parties have

provided nothing to the contrary. Quite surprisingly the pleadings, evidence

and the preliminary plan point to the accuracy of the subject matter in

319

respect of which 3rd defendant has sought a declaration of title in her

favour based on long and uninterrupted prescriptive possession. For the

foregoing reasons, I am not inclined to endorse the view voiced on behalf of

the 3rd defendant regarding the alleged lack of proof of the subject matter.

As stated above, it was only the 1st plaintiff who gave evidence at the trial.

The case of the plaintiff was closed reading in evidence documents marked

X, X 1 and P1 to P8. There was no other evidence available to adjudicate

on the matter as none of the defendant chose to adduce any proof to the

contrary. The learned district judge was therefore left with the evidence of

the 1st plaintiff and her documents. In the circumstances, I cannot find any

basis to interfere with the judgment of the learned district judge with regard

to the devolution of title.

One of the important matters that loomed large in the presentation of the

case for the 3rd defendant was the claim of prescriptive title. The relevant

point of contest reads as " by reason of the long and prescriptive

possession whether the 3rd defendant had acquired a prescriptive title to

lots C1 and D depicted in plan No 288?". In terms of the document marked

as P5 (the interlocutory decree entered in partition action No P 3228) the

subject matter of this action has been excluded on 31 March 1977. This

partition action has been filed on 27 April 1993. The deed of transfer 10038

dated 2nd December 1910 by which Gardian Fernando has derived title

refers to an undivided 1/4 share of the corpus. The 2nd and 3rd

defendants are children of the said Gardian Fernando and thus by paternal

inheritance became entitled to 1/8 share each.

The uncontroverted testimony of the 1st plaintiff which has been accepted

by the learned district judge points to the subject matter as being co-owned

320

by the plaintiffs and the three defendants. The surveyor's report shows that

the improvements other than buildings A2, B, C and D2 have been claimed

and counter claimed by the plaintiffs and the defendants. No points of

contests have been suggested with regard to the improvements. The

learned district judge has ruled that the improvements should be shared by

the parties as per surveyor’s report. The fact that the subject matter has

been excluded in the partition action by itself does not give rise to any

inference that the party sought the exclusion has acquired a prescriptive

title to it.

As a matter of fact the 3rd defendant in the earlier partition action has

sought the exclusion of the subject matter of the present action on the basis

that the original owner of it was Marianu Fernando. Further the 3rd

defendant in that action has clearly set out the manner of devolution of the

said original owner. Undoubtedly an order for exclusion of a portion of a

land from a partition action does not operate as Res Judicata and such

exclusions are always made on the application of a party or ex mero motu

but it does not create a title in favour of anybody. It is nothing but a mere

exclusion from the proposed corpus, even though title is pleaded for

purpose of seeking exclusion.

As regards the question of prescription claim by the 3rd defendant, the

learned district judge has investigated that claim on the basis that the 3rd

defendant was a co-owner. Very strangely the 3rd defendant did not give

evidence or produce any documents. As has been correctly pointed out by

the learned district judge the 3rd defendant had failed to prove ouster by

any overt act. In short there has been no evidence led on behalf of the 3rd

defendant as to any manner of possession. In the circumstances, the

investigation carried out by the learned district judge in the light of the

321

respective cases presented by the parties appears to be quite satisfactory

and warrants no intervention of this court. As has been submitted on behalf

of the plaintiff the judgment of the learned district judge and the reasons

adopted by him are not at all perverse to be overturned as cogent reasons

have been adduced for his conclusion.

As such, I see no merits in this appeal. Appeal dismissed subject to costs.

Sgd.


C.A : 819/96 F

D.C Kalutara: 6217P

Mahabaduge Clera Fernando,


Vs

1. Weerawarnakula sooriya Boosa Baduge Daisy Matilda Fernando,

2. Weerawarnakula sooriya Boosa Baduge Reeni Prasida Fernando. Plaintiff-

Resplendents

1. Jusecoora Mohotti Fernanado

2. Mahabaduge Francis Fernando, Defendant Respondents

Collin A Amarasingha for substituted 3rd defendant-appellant and Rohan Sahabandu

for plaintiff respondent.


322

NECESSITY TO IDENTIFY THE CORPUS

IN TERMS OF THE IMPUGNED JUDGMENT, THE PLAINTIFF HAS FAILED

MISERABLY TO IDENTIFY THE SUBJECT MATTER OF THE ACTION WITH

CERTAINTY. THEREFORE THE LEARNED DISTRICT JUDGE HAS HAD NO

ALTERNATIVE, BUT TO DISMISS THE PLAINTIFF’S ACTION. THE

JUDGMENT OF THE LEARNED DISTRICT JUDGE, IN MY VIEW CANNOT BE

FAULTED. THE CONFUSION THAT HAD ARISEN WITH REGARD TO THE

IDENTITY OF

THE SUBJECT MATTER WAS SUCH WHICH WARRANTED NOTHING BUT A

DISMISSAL OF THE PLAINTIFF'S ACTION AND THE LEARNED DISTRICT

JUDGE IS THEREFORE JUSTIFIED IN HIS CONCLUSION.

In the Court of Appeal of the Democratic

Socialist Republic of Sri Lanka

CA Appeal No: 815/96 F

DC Matugama : 1233/L

S A Seaman Mahipal Pelanda

Plaintiff-Appellant

vs

K K Adosingho

K K Jinadasa

K K Somadasa of

Pelanda


323


Parties absent and unrepresented


A.W.Abdus Salam,J.

his appeal has been preferred against the judgment of the learned district judge of

Matugama dated 31.7.1996. By the impugned judgment the plaintiff-appellant's

action was dismissed interalia on the ground of failure to identify the subject matter.

The facts that led to the filing of this appeal briefly are that the plaintiff-appellant

(plaintiff) filed action seeking a declaration of title to the subject matter and

damages. The subject matter as set out in the schedule to the plaint is a land

called "Gorakgodayaowita" alias "Puhuwaleowita" in extent of 4 acres. The

appellant neither referred to in the plaint nor produced at the trial a survey

plan relating to the subject matter. He did not even take out a commission to

have it demarcated by means of a survey plan. The appellant barely relied

on a deed of gift bearing No 58 dated 19 November 1982 to prove his title. The

defendant-respondents (respondents) filed answer denying the sole ownership of the

appellant and maintained that they have a valid prescriptive title to the

subject matter of the action and the appellant in any event is only a

coowner of the subject matter and therefore is not entitled to maintain

the action.

The matter in dispute proceeded to trial on nine issues of which four were

suggested by the appellant and the rest by the respondents. At the

conclusion of the trial the learned district judge inter alia arrived at the

finding that the appellant has failed to establish the title to the subject

matter and the land in respect of which the declaration of title is only a

portion to a larger land and therefore the action of the appellant cannot

be maintained.

According to learned district judge the appellant has filed action for a

declaration of title to the land called "Gorakgodayaowita" alias "Puhuwaleowita"

in extent of 4 acres. As has been observed by the learned district judge, the position

maintained by the appellant in his evidence was that the land in question was an

amalgamation of five lands, the extent of which is about 7 acres. According to P1 and

D1 also the original land was in extent of seven acres 3 roods 22 perches.

In the course of the trial the appellant produced the preliminary plan in

partition actionNo.456 as P3. According to P3 the land sought to be

partitioned in P456 was Alukanda Owita alias Bamparaya Owita in extent

1Acre 3 roods and 22 perches. The appellant has filed the instant action

for a declaration of title to Gorok Owita alias Puhuwale Owita. The learned

T

324

district judge has carefully analyzed the evidence given by the plaintiff

and others before he came to the conclusion that the land in respect of

which a declaration of title was sought, has not been properly identified.

According to the learned district judge in terms of the preliminary plan

prepared for the partition case No 456 the extent of the land is one acre 3

roods and 22 perches. According to P8 the plaintiff has instituted action

for a declaration of title to Gorokkowita alias Puhuwaleowita that has been

set out in the schedule to the plaint.

In terms of the impugned judgment, the plaintiff has failed miserably to

identify the subject matter of the action with certainty. Therefore the

learned district judge has had no alternative, but to dismiss the plaintiff’s

action. The judgment of the learned district judge, in my view cannot be

faulted. The confusion that had arisen with regard to the identity of the

subject matter was such which warranted nothing but a dismissal of the

plaintiff's action and the learned district judge is therefore justified in his

conclusion.

For the reason stated above, I am not inclined to endorse the grounds

urged by the appellant in the petition of appeal to avoid the impugned

judgment. Hence, the appeal stands dismissed subject to costs.


325

C. A. 1320/96 (F).

C. Matara 15570/P '

Balasooriyage Amaradasa, Medakoratuwa,

Pallawela,

R^dawela.

4 Defendant-Appellant.

Vs.

Weerabaddane Wijeratne Mendias, Radawela,

Dewalagama, Welkade.

Plaintiff-Respondent (deceased)

Weerabaddane Wijeratne Premasiri, Radawela,

Dewalagama, Welkade. 1st Defendant-

Respondent & others.

BEFORE: A W A SALAM, J

COUNSEL: Rohan Sahabandu for the 3rd Defendant Appellant and B.U.P. Jayawardane for the Plaintiff Respondents. ARGUED ON: 26.04.2012. DECIDED ON 18.05.2012

A.W.A. Salam, J.

This is an appeal preferred against the order of the learned District

Judge of Matara confirming the scheme of partition bearing No. 4506

of S.L. Galappaththy Licensed Surveyor and Commissioner of Court.

The facts briefly are that the learned District Judge having entered

interlocutory decree to partition the land which is the subject matter of

the action, scheme of partition was prepared and forwarded to Court by

the Commissioner which the 3rd Defendant-Appellant opposed.

Subsequently, inquiry was fixed with a view to ascertain the

reasonableness of the Commissioner’s plan. When the inquiry came up

326

on 30.08.1996 the Appellant moved for a postponement and it was

granted subject to the Appellant having to pay a sum of Rs. 750/- by

way of prepayment costs before 10.00 a.m.

On the day the matter was re-fixed for finally, when the matter came up

for inquiry on 24.09.1996 the 3rd Defendant-Appellant was absent and

his Attorney-at- Law entered appearance on his behalf. The Court

having observed that the prepayment order had not been honoured by

the 3rd Defendant-Appellant proceeded to confirm the scheme of

partition aforementioned.

The principal argument advanced on behalf of the Appellant is that

even in the absence of the 3rd Defendant-Appellant, the Court was duty

bound to inquire into the objections of the 3rd Defendant-appellant

before confirmation of the scheme of partition. On a perusal of the

order by which the prepayment order had been imposed on the 3rd

Defendant- Appellant, it is quite clear that the consequences of

noncompliance of the prepayment order has been clearly laid down.

The 3rd Defendant-

Appellant has agreed either expressly or by necessary implication as to | the said

consequences to take place in case of default of the prepayment order.

In the circumstances the ground urged by the Appellant to avoid the

impugned order cannot be accepted. As such this appeal does not merit

any favourable consideration and therefore is dismissed subject to

costs. Judge of the Court of Appeal

327

IT IS TRITE LAW THAT PROOF OF ORIGINAL OWNERSHIP OF A LAND IS NOT ALWAYS PLACED

AT A VERY HIGH DEGREE AND AS SUCH THE PLAINTIFF SHOULD HAVE BEEN SHOWN SOME

LENIENCY RELATING TO THE PROOF OF ORIGINAL OWNERSHIP.

proof of original ownership of a land is not always

placed at a very high degree and as such the

plaintiff should have been shown some leniency

relating to the proof of original ownership- identity

of the corpus-- discrepancy arising on the

preliminary survey

CA 1782/2002 Revision

DC Kuliyapitiya 7466/P

Keppitiwalana Ralalage Kamala Gunasinghe, Ganangamuwa, Nakkawatta.

15B/16A defendant-petitioner

Vs

Ranaweera Arachchige Podiamma, Ganangamuwa, Nakkawatta.

1A/2 plaintiff-respondent

Ranaweera Arachchige Wijesingha, Balagolla,Kobaigane 1A

defendant-respondent and 16 others.

Before: A.W.A.Salậm,J.

Dr J D Almaida Gunaratne PC with Ayendra Wickramasekara and Lasitha Chaminda for

the petitioner and M C Jayaratne with N Senaratne for 1stand 2nd respondents.

Written Submissions tendered on : 25.08.2008

Decided on : 10.02.2009

328

A.W.Abdus Salậm, J

This is an application made in revision to have the judgment and

interlocutory decree dated 2nd May 2002 set aside and/or revised or to

have the plaintiffs action dismissed and/or for an order directing a retrial

of the case.

The plaintiffs instituted the partition action in respect of a land called

Mahawatta alias Innawatta alias Erumaliyadda which was depicted for the

purpose of the partition action by preliminary plan No 620 prepared by R

A Navratne, Licensed Surveyor.

Admittedly, the subject matter is depicted as lots 1 and 2 in plan No 620

aforesaid. The learned district Judge having examined the deeds produced

by the party and the admission made by them as regards the identity of

the corpus, arrived at the conclusion that the subject matter of the

partition action comprises of lots 1 and 2 depicted in plan No 620.

Quite contrary to the admission recorded at the instance of the parties,

the petitioners now seek to resile from the agreement and argue that the

learned district Judge has failed to take into consideration the fact that

what was sought to be partitioned was a part of a larger land. Hence, the

petitioners contend that the district judge ought to have proceeded to

take steps to have the correct subject matter depicted in reference to a

different survey plan and not entered an interlocutory decree to partition

the land. The petitioner have urged that the discrepancy in the extent of

the subject matter as given in the plaint and the preliminary plan is about

¾ of an acre and therefore cannot be treated as marginal or negligible

inconsistency. It is further submitted on behalf of the petitioners that the

registration of the lis pendens being in respect of an extent of 3 ½ acres,

the action could not have proceeded without any amendment of the plaint

and a fresh lis pendens. The learned President’s Counsel of the

petitioners relies on the judgments of Brampy Appuhamy vs Menis

Appuhamy 60 NLR 337, W.Uberis vs Jayawardena 62 NLR 217 and K M

G D Dias vs Kariawasam Majuwana Gamage CA 897/92 drive home his

point that the learned district judge should not have entered interlocutory

decree to partition the subject matter.

329

In the case of Brampy Appuhamy vs Menis Appuhamy 60 NLR 337 the

corpus sought to be partitioned was described in the plaint as a land

about 6 acres in extent and the communication issued to the surveyor

was to Survey a land of that the extent. However the surveyor could

survey a land of only 2 acres and 3 roods. Interlocutory decree was

entered in respect of the land of 2 acres and 3 roods, without any

question being raised by the parties as to the extensive inconsistency

between the extent given in the plaint and that was shown in the plan

made by the surveyor. It was held that the court had acted wrongly in

proceeding to trial in respect of what appeared to be a portion only of the

land described in the plaint. In the case of W.Uberis vs Jayawardena

(supra) the plaint in the partition action was amended so as to substitute

a new corpus for the one described in the first plaint and it was held that

a fresh lis pendens would be necessary to maintain the action.

In the case of K M G D Dias vs Kariawasam Majuwana Gamage CA 897/92

the plaintiff sought to partition a land in extent 4 acres 3 roods 12.1

perches being in extent after excluding 5 acres 4.9 perches which in was

acquired by the State from and out of a larger land in extent 9 acres 3

roods 17 perches. The lis pendensregistered was in respect of a larger

land in extent 9 acres 3 roods 17 perches, which was inclusive of the

extent of 5 acres 4.9 perches that formed the portion said to have been

acquired by the State. The description of the land even in the plaint was

that of the larger land that existed prior to the acquisition. It was held

that the district judge had committed a cardinal error in ordering a

partition in respect of the land which is a portion of the larger land.

The facts however in this case are quite different. The plaintiff in his

plaint sought to partition a land in extent of about 3 ½ acres the

boundaries of which are described to be on the North, East and West by

the lands belonging to Mudalihamy Mahathmaya and others and on the

South by lands owned by Sundara Bandara and others. At this stage it is

of paramount importance to note the boundaries described in the

preliminary plan No 620. A perusal of the said plan clearly shows that the

boundaries of the subject matter as described in the said plan are

identical to that of the boundaries set out in the deeds produced by the

plaintiff and the land set out in the schedule to the plaint.

330

Even the document marked P1 sets out the boundaries of the subject

matter as the lands belonging to Mudalihamy Mahathmaya and others and

on the North, East and West and by lands owned by Sundara Bandara and

others on the South. Quite consistent with the boundaries given in P1, the

document marked as P2, P3, P4, P5 and P6 describe the boundaries of the

subject matter in the same manner as has been described in P1 and also

in the plaint. The lis pendens also contain the identical boundaries given

in the plaint.

In the circumstances, the subject matter of the partition action cannot be

said to be a portion of a larger land as has been contended by the

petitioners. The indefinite or undefined eastern boundary on the

preliminary plan would not necessarily mean that the land surveyed for

purpose of the action is only a portion of a larger land, as the petitioner

had attempted to make out. Consequently, the discrepancy cannot be

considered as being so material, particularly in view of the unequivocal

admission made by the petitioners and other parties as to the identity of

the corpus.

The learned trial Judge in his judgment has carefully considered the

contents of the deeds produced on behalf of the petitioners prior to his

concluding that the land dealt in the deeds produced by them are not

applicable to the subject matter. Even as regards the original owner

referred to by the petitioners the learned district Judge has given cogent

reasons, before he rejected the version of the petitioner. According to the

learned district Judge the land referred to in the deeds produced by the

petitioners is a different from the land sought to be partitioned by the

plaintiff. Further the surname of Punchirala referred to by the petitioners

is totally different from the surname of Punchirala referred to in the plaint

as the original owner.

It is trite law that proof of original ownership of a land is not always

placed at a very high degree and as such the plaintiff should have been

shown some leniency relating to the proof of original ownership. In any

event 14th to 17thdefendants have failed to establish the devolution of title

to the corpus and also failed to prove prescription accompanied by an

element of ouster by an overt act.

331

For the foregoing reasons it is my view that the revision application of the

petitioner should fail. Hence I make order accordingly.



ISSUES RAISED BY THE TRIAL JUDGE IN THE COURSE OF

WRITING JUDGMENT- PERMISSIBILITY

IN THE COURT OF APPEAL OF THE DEMOCRATIC

SOCIALIST REPUBLIC OF SRI LANKA

332

C.A. No. 624/2001(F)

D.C. Colombo Case No. 17515/L

Janeetha Martel Loren Perera nee

Coorey of No. 8, Block M.

Government Flats,

Bambalapitiya, Colombo 4.

Plaintiff-Appellant Vs.

1(a) Weerasinghe Arachchige Amarawathie

2(a) Karunawathie Ranasinghe

3(a) M.W. Dharmawathie

4(a) Princy Priyadarshanie Perera

5. Henry Lenard Perera

All of No. 1600, Cotta

Road,

Colombo 8.


Before : W.L.R. Silva, J. and

A.W.A. Salam, J.

Gamini Marapana P.C. with Navin Marapana and Keerthi Gunawardane for the Plaintiff-Appellant.

N.R.M. Daluwatte P.C. with Daya Guruge for the Defendant-Respondents.

Argued on : 06.12.2010, 02.12.2010 and 05.10.2010

Written submissions tendered on : 15.03.2011

Decided on : 03.10.2011


333

he question that arises in this appeal for consideration pertains mainly

to the propriety of the two issues read out and answered by the learned

district judge for the first time while delivering the judgment. The said

issues have been thus raised after the conclusion of the trial followed by

the receipt of written submissions. The judgment which is impugned in

this appeal culminated in the dismissal of the plaintiff’s action purely by

reason of the district judge electing to raise those issues at the eleventh

hour. The background to the dispute, as it transpired on the pleadings,

needs to be put it in a nutshell for the proper comprehension of the crucial

point arising for determination in this appeal. The plaintiff’s action against

the five defendants was to seek inter alia a declaration of title to the subject

matter, possession of the same and their ejectment. It is common ground

that the husband of the plaintiff was the owner of the subject matter at one

point of time and upon his demise it devolved on the plaintiff by virtue of his

last will that was duly proved and admitted to probate.

The 1st, 2nd, 3rd and 5th defendants in their answer denied the alleged

accrual of the cause of action to sue them and maintained that the husband

of the plaintiff instituted a rent and ejectment action against the mother of

the defendants and during its pendency, he caused the action to be laid-by

on the pretext that the premises are to be acquired by the Urban

Development Authority. As the plaintiff in this action, never claimed to be

the owner of the premises in suit nor demanded rent from them thereafter,

the defendants urged that there is no legal basis for the institution of the

present action.

In the plaint, the plaintiff set out the alleged cause of action against the

defendants in paragraph 7 which when translated would convey the

following expression….

7. The aforesaid defendants without any manner of title or rights

whatsoever to the said premises morefully described in the schedule

wrongfully and unlawfully occupying the same causing loss and damages to

the plaintiff in her estimation at Rs 10000/- per mensum.

Traversing paragraph 7 of the plaint the defendants vehemently denied the

contents therein and stated nothing more or less.

Admittedly, the husband of the plaintiff was the owner of the premises in

suit. The plaintiff has adduced cogent and overwhelming evidence to

establish her position that she had become the owner of the subject matter

by virtue of the last will of her husband. As has been commented by the

learned district judge in her judgment, despite the fact that the plaintiff was

able to establish her title to the property, since she has failed to conform to

section 40 (d) of the Civil Procedure Code the plaintiff’s action should fail.

(Page 7 of the impugned judgment)

A careful reading of the plaint reveals that the plaintiff has failed to plead

the exact date or the probable period at or during which the cause of action

is alleged to have accrued to her to sue the defendants for relief. This is a

T

334

clear violation or non-observance of the provisions of section 41(d) of the

Civil Procedure Code which requires that a plaint in addition to other

requirements should contain a plain and concise statement of the

circumstances of each cause of action and where and when it arose.

In terms of section 75(d) of the Civil Procedure Code the answer of the

defendant requires him to admit or deny the several averments of the plaint,

and set out in detail plainly and concisely the matters of fact and law, and

the circumstances of the case upon which he means to rely for his defence.

Even though it was open to the defendants to have attacked the plaint for

nonobservance of section 40(d) of the Civil Procedure Code, they chose not

to avail of any such defence but relied amongst other matters on

proceedings No. RE 4245 and moved for a dismissal of the plaintiff’s action.

It is trite law that where a plaint which is not defective exfacie is presented

and accepted, and summons is duly served on the defendants, as has

occurred in this matter, the Court loses its control over the document, and it

is usually left to the defendants to raise any questions as to its legal

sufficiency to support the intended action. It is therefore permissible to

object to the plaint for non-compliance of the requirements of the law in the

answer of the defendant or on certain occasions by way of a simple motion.

However, in this matter summonses having been served on defendants, they

have chosen not to admit the plaintiffs claim, but to deliver to the court a

written answer as was done by them.

Be that as it may, whatever be the position taken by both parties in their

pleadings the question of fact or of law to be decided between them are

stated in the form of an issue and the court thereupon proceeds to

determine the same. (Vide section 146 (1) of the Civil Procedure Code). It is

to be observed that the question of raising issues under 146 (2) by court did

not arise at the commencement of the trial.

The issues thus raised by the parties when translated would be as follows…

1. As stated in the various averments of the plaint did the plaintiff become the

owner of the subject matter of the action?

2. Did the defendants from 16.06.1996 continue to remain on the subject

matter challenging the title of the plaintiff?

3. If the above two issues are answered in the affirmative, is the plaintiff

entitled to relief as prayed for in the plaint?

4. (a) Did the husband of the plaintiff previously institute action against the

mother of the defendant in proceedings No. RE 4245?

(b) Subsequently, were the defendants added as parties to that action?

5. Has the husband of the plaintiff in that action stated that the mother of the

defendants occupied the premises in question as a tenant?

6. Was the cause of action pleaded in that case for reasonable requirement of

the plaintiff’s husband?

335

7. In that action, at the request of the husband of the plaintiff were the

proceedings laid by on the basis that the premises were to be acquired by

the state for the Urban Development Authority?

8. If so, can the plaintiff maintain the present action for the reliefs sought in

the plaint?

It may be useful to take a common sense approach to ascertain the rationale

behind the requirement of having to plead as to when and where the cause

of action arose. Such a requisite in a plaint will undoubtedly give the

plaintiff or the defendant as the case may be to admit or deny the

jurisdiction (patent or latent) and also an opportunity to plead the defence

as to whether the action is barred by a positive rule of law. It may also

facilitate the defendant or the plaintiff as the case may be, when there is a

counter claim in the answer, to raise a plea of alibi or such other defence

which may finally useful to decide the fate of the action.

As far as the present case is concerned there is no such defence raised by

the defendants. They neither pleaded that the action is time-barred nor their

inability to plead to it as the date of the cause of action is not mentioned in

the plaint. The plea of prescription being the special plea must be

specifically pleaded. In the circumstances, on a perusal of the answer it is

quite obvious that the defendants in their defence have not been prejudiced

by the absence of the particulars required to be stated under 40 (d) of the

Civil Procedure Code. In other words the main purpose of pleadings in

writing under the CPC is to avoid prejudice through catching the rival party

unprepared with an element of surprise. Nevertheless, the case under

consideration when the plaintiff had raised the issue relating to the cause of

action and when it arose the defendants have not objected to it and taken

part at the trial, cross examined the witnesses, produced documents and

the 3rd defendant has given evidence as well.

Moreover, the plaintiff joined issues with the defendant at the commencement

of the trial and one of the issues was whether the defendants from

16.06.1996 continue to remain on the subject matter challenging the title of

the plaintiff.

In the case of Hanaffi Vs Nallamma SLR-1998 Vol 1 at Page 73 the Landlord

sued the tenant (1ST defendant) for ejectment. On the summons returnable

day, another person (2nd defendant) appeared claiming to be the tenant and

moved that he be added as a party. In the meantime, the 1st defendant died

and the plaintiff was permitted to proceed against the 2nd defendant.

Judgment was then entered against the 2nd defendant. It was urged on

behalf of the 2nd defendant that the plaint did not disclose a cause of action

against the 2nd defendant and that the judgment against him was bad in

the absence of an amended plaint. Delivering the judgment of the Supreme

Court His Lordship G P S De Silva, CJ, held inter alia that “there was no

336

reference to the 1st defendant in the issues and there was no issue as to

whether the plaint disclosed a cause of action. Once issues are framed the

case which the court has to hear and determine becomes crystallized in the

issues and the pleadings recede to the background. On the basis of the

issues raised by the parties the crucial issue was whether the 2nd defendant

a tenant under the plaintiff, and that in the light of the issues framed and

the evidence on record the District Court rightly entered judgment for the

plaintiff against the 2nd defendant”.

In the case of Pure Beverages Ltd., Vs Shanil Fernando 1997 SLR volume

3 page 202 the facts were that the plaintiff filed action for damages that he

had suffered damages in consequence of the consumption of the contents of

a Coco-Cola bottle that allegedly contained parts of a decomposed worm on

12.6.84. However one of the issues raised by the plaintiff without objection

was that consumption was on 12.6.94. The District Court rejected the

application of the defendant to try issue as to whether the alleged cause of

action ex facie prescribed in law. Upon an interlocutory appeal being

preferred against the said order, it was held by this court that as to whether

the incident arose on 12.6.1984 or 12.6.1994 is a proposition of fact upon

which the parties are at variance on the issues that have been settled and

accepted byCourt. It was further held that the plaintiff respondent byraising

issue (3) on the footing that the relevant date was 12.6.1994 and not

12.6.1984 (date set out in the plaint) must clearly be taken to have

abandoned the date given in the plaint and the defendant not objecting to

such a departure or abandonment must be deemed to have clearly

acquiesced on the plaintiff raising the issue giving a new date. Incidentally,

the impugned order in that case was delivered by me in my capacity as the

district judge ofColombo.

Even in this matter, when the plaintiff suggested the issue relating to the

accrual of the cause of action the defendants’ maintained absolute silence

which meant, if not their consent, at least their acquiescence.

The learned President’s counsel of the plaintiff-appellant has contended that

the rules in the Civil Procedure Code make it perfectly clear that the case

has been decided on the basis of pleadings and on the basis of issues on

which the trial proceeded and there is no provision for any questions of fact

or of law to be raised after the parties have closed their respective cases. He

has further contended that the judge is required at the commencement of

the trial to put in issue the disputed questions and deal with them and

answer them in the judgment subject however to the reservation that

depending on the evidence placed before court during the course of the trial,

further issues may be raised with liberty to lead further evidence on the

matter. In principle, the contention of the learned President’s counsel

appears to me as quite consistent with the requirement of the law and the

audi alram partem or audiatur et altera parswhich literally means "hear the

other side" or "hear the alternative party". It is most often used to refer to

the principle that no person should be judged without a fair hearing in

337

which each party is given the opportunity to respond to the evidence against

them. As has been submitted on behalf of the appellant, the trial had been

concluded and the defendants in their written submissions had suggested 4

new issues assigning them the number as 9 to 12. The issues thus

suggested in the written submissions of the defendants pertain to the

question of tenancy. The learned additional district judge having carefully

considered them, quite correctly refused to entertain them as issues NOT

arising from the dispute involved. The basis on which she has refused the

application is that no evidence had been adduced on those suggested issues.

However, to the utmost surprise of both parties, the learned district judge on

her own volition raised two issues giving them the numbers as 9 and 10.

Issue No 9 which is the substantial issue raised by the learned additional

district judge was whether the plaintiff had failed to plead as to when the

cause of action arose and if so whether the action is maintainable. The two

issues raised by the learned district judge at page 9 of her judgment are

reproduced below with the answers given to them.

9. Has the plaint been presented in compliance ofsection 40 (d) of the

Civil Procedure Code? No

10. If the above issue is answered in the negative should the plaint be

dismissed? Yes

On behalf of the appellant the learned President’s counsel complains that

the parties could never been asked whether it was correct to raise such

issues, after they have closed their cases nor were they consulted on the

question whether it was possible for the court to dismiss an action on

technical grounds such as the one raised by the learned judge.

I am in total agreement with the submission that the facts and the

application of the law to this case must be distinguished from certain cases

where a special duty is cast on court, such as in a partition action to

investigate into the title as required by section 25 of the Partition Act.

o

o

In the case of Thilagaratnam Vs Athpunathan And Others 1996 SLR Vol 2

page 66, (CLICK ON THE AUTHORITY) it was positively laid down by this

court although there is a duty cast on court to investigate title in a Partition

action, the court can do so only within the limits of pleadings, admissions,

points of contest, evidence both documentary and oral.

Anandacoomaraswamy, J. in the course of his judgement stated that "Court

cannot go on a voyage of discovery tracing the title finding the shares in the

corpus for them; otherwise parties will tender their pleadings and expect the

court to do their work and their Attorneys-at Law’s work for them to get title

to those shares in the corpus."

The discretionary power of the district judge to raise issues after the closure

of the case of all the parties and before judgment was the subject of

http://www.lawnet.lk/docs/case_law/slr/HTML/1996SLR2V66.htm







338

discussion in the case of Hameed Vs Cassim reported in 1996 SLR -

Volume 2 Page 30.(CLICK ON THE AUTHORITY)

Commenting on the discretionary power and as to how and when it should

be exercised, Dr Ranaraja, J, stated that the provisions of S.149 of the Civil

Procedure Code do not preclude a District Judge from framing a new issue

after the parties have closed their respective cases and before the judgement

is read out in open Court. His Lordship further laid down that “It is not

necessary that the new issue should arise on the pleadings. A new issue

could be framed on the evidence led by the parties orally or in the form of

documents. The only restriction is that the Judge in framing a new issue

should act in the interests of justice, which is primarily to ensure the correct

decision is given in the case."

Notwithstanding the fact that the learned district judge was quite conscious

of this decision and that of Cynthia De Alwis Vs Marjorie D'alwis And Two

Others 1997 SLR- 3-113 (CLICK) as she has distinctly referred to them in

her judgment, quite unfortunately she had not been correctly guided by the

principles enunciated in those judgments.

The learned district judge was completely blind to theratio decidendi in the

case of Cynthia De Alwis which was a decision of this court in respect of an

appeal against a judgment in a partition case. In that case the District Court

held that the Commissioner of National Housing, though failed to file a

statement of claim and in the circumstances there was no justification and

provision in the Partition Act to permit an issue to be raised as to title and

interests vested in the Commissioner. Taking into consideration the nature

of a partition action being an action in rem and that a final decree in such a

case being one against the whole world this court held that the duty to

investigate title by raising the necessary “points of contest” is a sacred duty

of the district judge although it may appear to have arisen outside the

pleadings. It seems that the principle behind this rule applicable to

partition actions stems from the fact that a district judge in exercise of this

sacred duty to investigate title cannot be found fault with for being too

careful in such an exercise as those proceedings are considered actions

inrem and final decree as one binding the whole world notwithstanding

certain type of specified irregularities.

Therefore, as regards a partition action the right of the judge to step out of

the pleadings and documents to frame the correct points of contest cannot

be disputed. However, the opinion expressed in the same case in relation to

a reivindicatio action is only obiter.

It is of much relevance to refer to the judgement in Wickramathilaka Vs

Marikkar 2 NLR page 9 where Bonser CJ held that the district judge should

not give effect to technical objections. This was once again emphasized by

the often quoted dictum of Abraham CJ in Velupillai Vs The Chairman,

District Urban Council, 39 NLR 464 where His Lordship echoed the same

principle in a different way with the words of wisdom that “This is a Court of

Justice and not an Academy of Law”. The judges of the present day and the

Bar at large should recall this concept every moment of discharging the

sacred duty jointly cast on them, if they are committed to achieve












339

expeditious disposal of cases by throwing away technicalities that may stand

in their way.

Had learned district judge properly exercised the discretion and in fact

refrained from raising the two unwarranted issues, the approach to the

resolution of the present dispute could have been totally different. No doubt,

the right to raise the proper issues is primarily a matter that should be left

to the discretion of the trial judge but in this particular case the discretion

has not been exercised with a touch of proper judicial mind or

understanding of the correct principles involved.

I am quite conscious that an appellate court should be slow to interfere with

the discretion of the district judge in this type of matters but being mindful

of the manifest injustice caused to the appellant and the miscarriage of

justice that had occurred, it is with great reluctance I am compelled to

disapprove the capricious manner of raising the two controversial issues

against all known norms of the law to the detriment of the plaintiff.

As the learned district judge has categorically stated that the plaintiff has

established her ownership of the property, the burden of proving the right to

continue in occupation of the plaintiff’s land and premises lies entirely on

the defendants. The resulting position in such a situation has been lucidly

explained by His Lordship Sharvanada CJ in Theivendran Ramanathan

Chettiar 1986 2 SLR 219 in the following manner..

“An owner of a land has the right to possession of it and hence is entitled to

sue for the ejectment of a trespasser. In a vindicatory action the claimant

needs merely to prove two facts; namely, that he is the owner of the thing

and that the thing to which he is entitled to possession by virtue of his

ownership is in the possession of the defendant. Basing his claim on his

ownership, which entitles him to possession, he may sue for the ejectment

of any person in possession of it without his consent. Hence, when the legal

title to the premises is admitted or proved to be in the plaintiff, the burden

of proof is on the defendant to show that he is in lawful possession”.

As I have remarked earlier the learned district judge in no uncertain

language has disclosed her finding that the plaintiff has successfully

accomplished her task of proving her ownership to the subject matter and

the defendants are in unlawful occupation of the same as disclosed in her

evidence from 16.06.1996. As has been decided by our courts an owner of

immovable property is entitled to enjoy it without disturbance and without

fear of unjustifiable interference from outsiders and if his enjoyment is

disturbed the remedy of rei vindicatio action is always available.

For purpose of ready reference the relevant passage of the impugned

judgment is given below… whs;sh m%ldY lrjd .ekSfï kvqjloS kvqjg wod, foam,g whs;sh ;udg we;s nj ikd: lsrSfï ld¾hNdrh uQ,ls jYfhkau iy

m%Odk jYfhka /|S we;af;a meñKs,ls re i;=j nj;a tfia ikd: lsrSug wfmdfydi;a jqjfyd;a kvqlrh id¾:l fkdjk nj b;d

meyeos,s lreKls’ flfia fj;;a” kvqfõ úIh jia;=j ù we;s foamf,ys whs;sh ;ud i;= nj ikd: lsrSug meñK,s sldr md¾Yjhg

yelshdj ;snqko ú;a;slreg úreoaOj bosrsm;a lr we;s meñK,s a, isú, a kvq úOdk ix.%yfha 40^we& jk j.ka;shg wkql+,j

bosrsm;a lr ;snsh hq;=h’

^pages 6 and 7 of the impugned judgment)

340

On the own showing of the learned district judge the defendants do not seem

to have established their right to occupy the subject matter. They have

admittedly not recognized the plaintiff as the landlord or paid any rent from

341

18.06.1985. In terms of D2 the rent and ejectment action has been laid-by

on that day. By way of a simple reckoning no difficulty would arise to

conclude that the defendants have not paid any rent or recognized the

plaintiff as the landlord or taken any steps to have them placed as tenants

in the shoes of their mother at least from 18.06.1985. This is an unusual

length of time (26 years as a today) to keep an owner of a property in

suspense.

If the two controversial issues are expunged from the judgment the learned

district judge would have had no alternative but to answer the issues

suggested by the plaintiff and the defendants in the affirmative.

Hence the findings, judgment and the decree which ended up in the

dismissal of the plaintiff's action are liable to be set aside. The learned

district judge who heard the case is ceased to be a judge of the original court

and may not be able to rehear the case. Taking into consideration all these

circumstances, to send this case back to the district court for a re-trial

would mean further litigation, unnecessary expenses for both parties, and a

further meaningless appeal. Such a course, if adopted would mean

prolonging the agony which would certainly be unfair and not at all

beneficial or conducive to the best interest of the parties.

As such I feel that justice in this matter be meted out by answering the

issues afresh in the following manner.

1. As stated in the various averments of the plaint did the plaintiff become the

owner of the subject matter of the action? Yes

2. Did the defendants from 16.06.1996 continue to remain on the subject

matter challenging the title of the plaintiff? Yes

3. If the above two issues are answered in the affirmative, is the plaintiff

entitled to relief as prayed for in the plaint? Yes

4. (a) Did the husband of the plaintiff previously institute action against the

mother of the defendant in proceedings No. RE 4245? Yes

(b) Subsequently, were the defendants added as parties to that action? Yes

5. Has the husband of the plaintiff in that action stated that the mother of

the defendants occupied the premises in question as a tenant? Yes

6. Was the cause of action pleaded in that case for reasonable requirement of

the plaintiff’s husband? Yes

7. In that action, at the request of the husband of the plaintiff were the

proceedings laid by on the basis that the premises were to be acquired by the

State for the Urban Development Authority? Yes

8. If so, can the plaintiff maintain have and maintain the present action on the

reliefs prayed for in the plaint? Yes

For the foregoing reasons, I am compelled to set aside the judgment of the

learned district judge as it had manifestly ended up in a travesty of Justice

and direct that judgment and decree be entered in favour of the plaintiff in

terms of the reconsidered answerers given to the issues.

Subject to the above this appeal stands allowed. Parties shall bear their own

costs.

342


I agree.

W L R Silva, J


NT/-

Irregular procedure adopted by court compelling

the 4th defendant-petitioner to participate at the

trial in person has ended up in a miscarriage of

justice, in that the 4th defendant-petitioner had to

forego the right conferred under 48(4)(iv) of the

Partition Act.

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

343

REPUBLIC OF SRI LANKA.

In the mater of an Application in Revision under and in terms of Article 138 of the

Constitution of the Democratic Socialist Republic of Sri Lanka read with Section 753 of the

Civil Procedure Code.

CA Appeal No. 1754/2004

D.C. Horana: 5387 P

Sooriyarachchige Dharmadasa of

“Lal Sevena”, Pathahawatta Road,

Raigama, Bandaragama.

Plaintiff

Vs.

1. Withanage Piyadasa of Rendawatta,


2. Withanage Thelenis of Pathahawatta Road,


3 Withanage Ranjith Perera of Pathahawatta

Road, Raigama, Bandaragama.

4 Withanage Robias Perera of Pathahawatta


5. Raigam Liyanage Yubatrathna Alwis of Pathahawatta Road, Raigama,

Bandaragama.

6. Ashoka Pushpa Kumara Wattage of No.23, of Pathahawatta Road, Raigama,

Bandaragama.

7. Thotagamuwa Liyana Arachchige

Prematilaka of Ihala Karannagoda, Naboda.

Defendants

AND BETWEEN

1. Withanage Ranjith Perera of Pathahawatta


344

2. Withanage Robias Perera of Pathahawatta Road, Raigama, Bandaragama. 3rd

and 4th Defendant-Petitioners

Vs.

1. Sooriyarachchige Dharmadasa of “Lal Sevena”, Pathahawatta Road,



2. Withanage Piyadasa of Rendawatta,


3. Withanage Thelenis of Pathahawatta Road,


4. Raigam Liyanage Yubatrathna Alwis of Pathahawatta Road, Raigama,

Bandaragama.

5. Ashoka Pushpa Kumara Wattage of No.23, of PathahawattaRoad, Raigama,

Bandaragama.

6. Thotagamuwa Liyana Arachchige

Prematilaka of Ihala Karannagoda, Naboda.

1st, 2nd,5th 6th and 7th Defendant-Respondents

Before: A.W.A.Salam J

Chandana Premathilaka for the 3rd and 4th Defendant-Petitioners and

Rohan Sahabandu With Piyumi Gunathilaka for plaintiff –respondent

Written submissions filed on: 08.01.2008

Decided on: 19.03. 2008

A W Abdus Salam J.

The petitioners who were the 3rd and 4th defendants in the above partition action, have presently applied to revise the judgement dated 1 July 2004 and interlocutory decree entered thereon. They allege that they were unrepresented at the trial and hence denied of a fair trial. Their position is that the learned trial judge erred when he proceeded to decide the action interpartes against the 4th defendant. It is averred in the petition that the learned trial judge should not have put the 4th defendant-petitioner into

345

the witness box without legal assistance, when he had a registered attorney on record. As a matter of law, the petitioners contend that the district judge

concluded the case on the same day it was taken up for hearing

and thereby effectively shut out evidence of the 3rd and 4th

defendants regarding their title and had compromised his sacred

duty to investigate the title.

When unnecessary details are filtered out the factual background

relevant to the revision application would appear to be

uncomplicated. It involves a fundamental question of law and

how pertinently it had been applied in the circumstances

peculiar to the revision application.

The petitioners have jointly nominated a registered attorney to be

on record. They filed a joint statement of claim disputing the

averments in the plaint. On the date the matter was set down

for trial the registered attorney of the petitioners was absent.

Accordingly both petitioners were unrepresented. Yet, the 4th

defendant-petitioner was present at the trial.

The learned district judge in the course of the trial had allowed

the 4th defendant to cross examine the plaintiff and also present

his case in person. Thereafter he had delivered judgment to

partition the land allotting certain undivided rights to the plaintiff

and leaving the balance rights unalloted.

Thus, the learned district judge had obtained the assistance of

the 4th defendant to resolve the dispute by effectually making him

to participate throughout the trial. The record does not indicate

as to whether the 4th defendant-petitioner sought permission of

court to conduct his own case. There is no indication pointing to

4th defendant-petitioner having sought permission of court to

cross examine the plaintiff or to present his case in person either.

In the absence of any specific mention being made in proceedings

to the contrary, I consider it as reasonable to assume that the

learned district judge on his own had involved the 4th defendant

in the trial proceedings.

The main question that arises for determination in this matter is

the applicability of section 27 (2) of the Civil Procedure Code. In

terms of section 27 (2) aforesaid when an appointment of a

registered attorney is made in terms of section 27 (1) of the Civil

346

Procedure Code, such appointment shall be in force until revoked

with the leave of court and after notice to the registered attorney

by a writing signed by the client and filed in court.

The effect of an appointment of a registered attorney under

section 27 (1) has been considered by this court on many an

occasion. Suffice it would be to cite the judgment in Seelawathie

and another Vs Jayasinghe (1985) 2 SLR 266 and Hameed vs

Deen and others 1988-2 SLR page 01 where in the former case it

was authoritatively held that as long as a party to a case has an

attorney-at-law on record, it is the attorney-at-law on record

alone, who must take steps, and also whom the Court permits to

take steps. It is a recognized principle in Court proceedings that

when there is an attorney-at-law appointed by a party, such

party must take all steps in the case through such attorney-at-

law. Further, the established principle is that a party, who is

represented by an attorney-at-law, is not permitted to address

Court in person. All the submissions on his behalf should be

made through the Attorney-at-law who represents him.

The learned counsel of the petitioners has also cited the

judgment in the case of Hameed vs. Deen and others 1988-2 SLR

page 01 in which it was held that when there is an attorney-at-

law appointed by a party, every step in the case must be taken

through such attorney at law. The appointment of the attorney at

law under Section 24 of the Civil Procedure Code remains valid in

terms of section 27(2) until all proceedings in the action are

ended or until the death or incapacity of the attorney. The

registered attorney or counsel instructed by him alone could act

for such party except where the law expressly provides that any

party in person should do any particular act.

The 4th defendant-petitioner has been suddenly called upon to

cross examine the plaintiff and later to present his own case by

the learned district judge, immediately after the closure of the

plaintiff’s case, disregarding the fact that there was a registered

attorney on record. When the 4th defendant attended Court

without being represented by his registered attorney or a Counsel

as contemplated under section 27 (3) of the Civil Procedure Code,

the learned district judge should have considered him as a party

347

having failed to appear at the trial, as the court had rightly

chosen to do in the case of the 3rd defendant-petitioner.

It is quite significant to advert to the adverse consequences that

flow from the learned judge’s approach to identify the

proceedings as interpartes. As far as the 4th defendant-petitioner

is concerned, by improperly extending the right of audience to

the 4th defendantpetitioner at the trial, the learned district judge

has proceeded on the basis that the judgment and interlocutory

decree were entered interpartes. This procedure wrongly adopted

by court has deprived the 4th defendant petitioner of the right to

invoke section 48 (4) (IV) of the Partition Act, No 21 of 1977. Had

the learned district judge followed the provisions of the Civil

Procedure Code and considered the 4th defendant- petitioner as

a party who had failed to appear at the trial or as a party in

default of appearance, the 4th defendant-petitioner could have

legitimately exercised his rights under 48(4)(iv) of the Partition

Act to obtain special leave of court to invoke the jurisdiction of

the original court to amend or modify the interlocutory decree to

such extent and in such manner as the court could have

accommodated the entitlement, if any, of the 4th defendant-

petitioner.

On the contrary, the irregular procedure adopted by court

compelling the 4th defendant-petitioner to participate at the trial

in person has ended up in a miscarriage of justice, in that the

4th defendant-petitioner had to forego the right conferred under

48(4)(iv) of the Partition Act.

It is of much importance to observe that the learned trial judge

recorded at the commencement of the trial on 1 July 2004 that

the parties have resolved the disputes and the court proceeds to

hear evidence without points of contest. Before it was so recorded

the learned district judge owed a duty to explain the 4th

defendantpetitioner the manner in which the disputes have been

resolved and to make a contemporaneous reference to that fact in

the proceedings. As there is no such reference found in the

proceedings, I am not disposed to take it for granted that the

learned district judge has either consulted the 4th

defendantpetitioner regarding the settlement or enlightened him

as to its consequences. Had the learned district judge taken the

precaution to ensure that the 4th defendant-petitioner also would

348

be bound by such a settlement, he would have specifically

referred to the 4th defendant as a party to the settlement.

On the other hand, if the 4th defendant-petitioner was a party to

the compromise, the need for cross examination of the plaintiff by

the 4th defendant-petitioner would not have arisen. Above all,

when the 4th defendant-petitioner had purportedly cross

examined the plaintiff posing only one question suggesting that

Johanis was entitled to only 1/6th share and not 1/2 as claimed

by the plaintiff, the learned trial judge ought to have realized that

the 4th defendant-petitioner was trying to resile from the

compromise. Without clarifying this from the 4th

defendantpetitioner as to whether he was trying to pull himself

out from the compromise the learned trial judge appears to have

simply raised two points of contest and answered the same on

the same day. This clearly shows that the 4th defendant-

petitioner was not a party to the compromise reached at the

commencement of the trial and the learned district judge in fact

should have raised points of contest at the commencement of the

trial itself.

The learned district judge does not appear to have taken into

account the miserable plight of the 4th defendant- petitioner who

should not have been held responsible for the dereliction of duty

of the registered attorney. The 4th defendant-petitioner was in his

eightieth year when he was suddenly called upon to cross

examine a witness in a contested partition case and to present

his case too. Even a lawyer with experience cannot be expected to

discharge his functions satisfactorily if he is confronted with the

difficulty which the 4thdefendant-petitioner had to face.

The learned district judge possibly in his enthusiasm to dispose

of the case without delay has lost sight of the importance of the

law of civil procedure. As has been stated by Dr.Amarasinghe J.

in Fernando vs. Fernando 1997 3 SLR 1 “civil procedural laws

represent the orderly, regular and public functioning of the legal

machinery and the operation of the due process of law. In this

sense the protective character of procedural law has the effect of

safeguarding every person in his life, liberty, reputation,

livelihood and property and ensuring that he does not suffer any

deprivation except in accordance with the accepted rules of

procedure”. Although recklessness on the part of the 4th

defendant-petitioner and dereliction of duty by the registered

349

attorney cannot be denied, yet the irregular procedure adopted

by the learned judge is totally unwarranted and unjustifiable.

In SIRIYA, Appellant, and AMALEE et al; Respondents 60 NLR

269 it was held that an omission to give a party to a suit an

opportunity of being heard is not merely an omission of

procedure but is a far more fundamental matter in that it is

contrary to the rule of natural justice embodied in the maxim

audi alteram partem.

In the result the manner in which title has been investigated by

court does not appear to be consistent with the law that is

required to be followed in the investigation of such title.

In the circumstances it is my view the irregular procedure

followed by the learned district judge has ended up in a

miscarriage of justice which transcends the bounds of procedural

error. It is appropriate to quote the relevant passage from the

judgment of Soertsz J in Punchibanda v Punchibanda 42 NLR

382 that has been cited with approval by his Lordship S.N.Silva.J

(as he then was) in W.G.Rosalin Vs H.B.Maryhamy 1994 SLR -

Vol.3, Page - 262, which reads as follows..

“This Court has often pointed out that when settlements, adjustments, admissions, &c., are reached or made, their nature should be explained clearly to the parties, and their signatures or thumb impressions should be obtained. The consequence of this obvious precaution not being taken is that this Court has its work unduly increased by wasteful appeals and by applications being made for revision or restitutio in integrum. One almost receives the impression that once a settlement is adumbrated, those concerned, in their eagerness to accomplish it, refrain from probing the matter thoroughly lest the settlement fall through. This is a very unsatisfactory state of things and it is to be hoped that a greater degree of responsibility will be shown on these matters by both judges and lawyers”. For the foregoing reasons it is my view that the application of 4th defendant-petitioner should be allowed. The 3rd defendantpetitioner has no ground to challenge the propriety of the impugned judgment by way of revision as he is entitled to invoke section 48(4)(iv) of the Partition Act. Hence the application of the 3rddefendant-petitioner is refused.

The judgment and interlocutory decree are accordingly set-aside

and the learned district judge is directed to investigate the title

350

afresh, affording both the 3rd and 4th defendant petitioners an

opportunity to participate at the trial.


Sgd.


Kwk/-


judgment dated 19.03.2008 filed of record in C.A. No. 1754/04.

Typed by :

Compared with :


351

INSPECTION OF THE SUBJECT MATTER OF CONSENT OF

PARTIES- CAN THE DECISION MADE AFTER THE

INSPECTION BE CHALLENGED

UPON Parties agreed to abide by the decision of the judge after an inspection of the

land and signified their consent by signing the record, AN inspection was carried out

and thereafter order was made declaring the plaintiff entitled to a cartaway. On an

appeal being preferred against the order made, it was held that where parties agree

to abide by the court’s decision after an inspection there is implied in it, a waiver of

all defences taken in the answer and a total acceptance of the outcome of the court’s

decision. It was further held that no right of appeal lies against such an order.

Walliamma vs. Selliah 73 NLR 509 –

HELD IN Birikett L.J. in Buckingham vs Daily News Ltd. 1956 2 QB 534, 1956 2 All

E

R 904, 1956 3 WLR 375 THAT “When a judge goes to see machinery, and sees it in

operation when the parties are present and everything is done regularly and in order,

it is just the same as though the machine were brought into court, and demonstration

made in the well of the court, so that the judge or judges may see it.”

Goold Vs Evans & Co 1951 TLR 1189 “It is fundamental principle of our law that the

judge must act on the evidence before him and not on outside information; and,

further, the evidence on which he acts must be given in the presence of both parties,

or, at any rate, each party must be given an opportunity of being present. Speaking

for myself, I think that a view is a part of the evidence just as much as an exhibit. It

is real evidence. The tribunal sees the real thing instead of having a drawing or a

photograph of it. But, even if a view is not evidence, the same principles apply. The

judge must make his view in the presence of both parties, or at any rate, each party

must be given an opportunity of being present. The only exception is when a judge

goes by himself to see some public place, such as the site of a road accident,

without either party present.” - His Lordship Denning LJ

CA 993/97

DC Galle : 10506/P

Angulugaha Gamage Nandawathie,

352

Plaitiff-Appellant

Vs

Ahangama Liyanage Sumanadasa,


N R M Daluwatta PC with Mrs M Maitipe for the 2nd and 3rd Defendant-Respondents, AMJ

Hemantha for the 1st and 4th defendant-respondents and Maduranga Ratnayaka with Shantha

Jayawardena for the plaintiff-Appellant .

Decided on: 25.01. 2011

A.W.Abdus Salam, J.

The subject matter of this partition action is depicted in the preliminary plan No.3641

dated 19.6.1989 made by W. A. Garvin de Silva, Commissioner of Court. After trial

the learned district judge entered interlocutory decree directing that the corpus be

partitioned among the co-owners in the proportion of ½ share to the plaintiff and ¼

share each to the 1st and 2nd defendants.

A scheme of partition was accordingly suggested by M.N.J.A. Perera, Commissioner

of Court, by plan No.175 dated 18.5.1995. On the initiation of the plaintiff and

alternative scheme of partition (plan No.2/96 dated 31.12.1996) was tendered

through H.K. Alles, Licenced Surveyor.

When the matter of the inquiry into the scheme of partition commenced parties

agreed to abide by an order delivered by court on the controversy after carrying out

a site inspection by the Judge. Having carried out the inspection in terms of the

agreement, the learned additional district judge made the impugned order confirming

the scheme of partition of the commissioner i.e. that of M.N.J.A. Perera, as

contemplated by Partition Law.

The present appeal has been preferred by the plaintiff against the order confirming

the said scheme of partition.

The 2nd and 3rd Defendant-Respondents have raised a preliminary objection against

the maintainability of the appeal. The learned President’s Counsel relies on the

judgment in the case of Suriyapperuma vs. Senanayake (1989) 1 SLR page 325, to

drive home his argument as to the non-availability of a statutory appeal against the

impugned order.

In the case of Suriyapperuma vs. Senanayake (supra) parties agreed to abide by the

decision of the judge after an inspection of the land in dispute and also signified their

consent by signing the record. The inspection was carried out and thereafter order

353

was made declaring the plaintiff entitled to a cartaway. On an appeal being

preferred against the order made, it was held that where parties agree to abide by

the court’s decision after an inspection there is implied in it, a waiver of all defences

taken in the answer and a total acceptance of the outcome of the court’s decision. It

was further held that no right of appeal lies against such an order.

In the case of Walliamma vs. Selliah 73 NLR 509 cited with approval in

Suriyapperuma’s case Tennakoon J. (as he then was) expressed the view based on

an English case that the judge inn a civil case is given the power to inspect any

place or thing with respect to which any question arises in the course of matter.

The value to be attached to an inspection carried out by a judge in order to decide an

issue before him has been impeccably described by Birikett L.J. in Buckingham vs

Daily News Ltd. 1956 2 QB 534, 1956 2 All E R 904, 1956 3 WLR 375 in the

following manner.

“When a judge goes to see machinery, and sees it in operation when the parties are

present and everything is done regularly and in order, it is just the same as though

the machine were brought into court, and demonstration made in the well of the

court, so that the judge or judges may see it.”

The value to be given to an inspection by a trial judge was observed by His Lordship

Denning LJ in the case of Goold Vs Evans & Co 1951 TLR 1189 as follows.

“It is fundamental principle of our law that the judge must act on the evidence before

him and not on outside information; and, further, the evidence on which he acts must

be given in the presence of both parties, or, at any rate, each party must be given an

opportunity of being present. Speaking for myself, I think that a view is a part of the

evidence just as much as an exhibit. It is real evidence. The tribunal sees the real

thing instead of having a drawing or a photograph of it. But, even if a view is not

evidence, the same principles apply. The judge must make his view in the presence

of both parties, or at any rate, each party must be given an opportunity of being

present. The only exception is when a judge goes by himself to see some public

place, such as the site of a road accident, without either party present.”

The learned counsel of the appellant has submitted that the Partition Law does not

allow the district judge to conduct a site inspection to decide on the partition scheme

and therefore the parties in any event could not have agreed to abide by the order

based on such a site inspection. In the result, he urges that the plaintiff could not

have in any event waived his right of appeal. In short, it has been submitted on

behalf of the appellant that the Civil Procedure Code has no application to decide on

the scheme of partition under the partition law, after a site inspection.

354

In this respect it must be remembered that in terms of section 79 of the Partition Law,

No. 21 of 1977 in any matter or question of procedure not provided for in the

Partition

Law, the procedure laid down in the Civil Procedure Code in a like matter or question

shall be followed, as long as such procedure is not inconsistent with the Partition

Law. An inspection of the subject matter by the judge in order to decide the question

as to the feasibility of the division of the subject matter among the co-owners in

terms of the interlocutory decree, on the invitation of the parties and with their

express consent to abide by the decision to be eventually made after such

inspection, in my opinion is perfectly in order and not inconsistent with the Partition

Law. Therefore, in such an event the Provisions of the Civil Procedure Code can

conveniently be applied to fill the omission in a partition case.

For the above reasons, the preliminary objection raised on behalf of the contesting

defendants is upheld and appeal dismissed.


Sgd.


Kwk/=

I do hereby certify that the foregoing is a true copy of the judgment

dated

25.01.2011 filed of record in C.A. No. 993/97(F).

Typed by :

Compared with :


355

Section 36A of the partition act.

any party who is aggrieved by an order made under

section 36 is required to make an application for leave to

appeal within the period of 14 days. Without explaining

the circumstances which prevented the petitioner from

resorting to section 36A of the Partition Act, she is

unable to have and maintain the present application for

revision as presently constituted

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA

In the matter of an application for Revision.

C. A.Application No.1720/02

D. C.Mt.Lavinia 965/P

Uluwaduge Kanthi Fernando,

76/6, 37th Lane, Colombo 6.

Plaintiff

Vs.

1. Uluwaduge Thoman Fernando

17, Srimal Mawatha, Dehiwela.

1A. Uluwaduge Indra Fernando

77,37th Lane, Colombo 6.

2. Uluwaduge Wilbert Fernando 75/2,

37th Lane, Colombo 6.

3 Lokuge Tudor Fernando Jayaratne, 75/1,


4. Wannipurage Irangani Fernando 36/2, Perera Lane,

Colombo 6.

5. Daya Mallika Fernando


Defendants

356

AND

Uluwaduge Indra Fernando,

77, 37th Lane, Colombo 6.

1A Defendant-Petitioner

Vs.

1. Uluwaduge Kanthi Fernando, 76/6,



2. Uluwaduge Wilbert Fernando

75/2, 37th Lane, Colombo 6.

3. Lokuge Tudor Fernando,

37th Lane, Colombo 6 4.

Wannipurage Irangani Fernando

36/2, Perera Lane, Colombo 6.

5. Daya Mallika Fernando


Defendants-Respondents

C.A.No:1720/02 - D.C.Mt.Lavinia No.965/P Before

: A.W.A.Salam, J.

Counsel : Maura Gunawansha for the Plaintiff-Respondent.

Ranjan Suwadaratne with Ranjith Perera for the 2nd


Decided on: 26.08.2008.

A.W.A.Salam, J.

The facts that led to the present application for revision made by 1A

defendant-petitioner (hereinafter referred to as the "petitioner") briefly

are as follows. The plaintiff-respondent (hereinafter referred to as the

"plaintiff") instituted action to partition the land described in the schedule

to the plaint. As there was no contest among the parties regarding the

identity of the corpus and the devolution of title set out in the plaint, the

learned district judge having investigated into the title of the corpus

without any points of contests being raised delivered his judgment on 07-

0390. The undivided extent of land in the proportion of 11/96 which was

allotted in the judgement was later allotted to the 3rd

defendantrespondent.

357

Subsequently interlocutory the decree was entered and commission was

issued in partition the land. Accordingly M.J.Setunga, licensed surveyor

and commissioner of court prepared the scheme of partition bearing No

3507 dated 19-10-95. As the said plan was not satisfactory a fresh

service was carried out and that land No 3801 was prepared by the same

surveyor. The petitioner not being satisfied with the steam of partition

took out of the preparation of another commission for the preparation of

an alternative scheme of partition. After inquiry the learned district judge

on 27-11-01 made order rejecting the alternative scheme of partition

suggested by the petitioner and confirmed the commission as plan No

3801 dated 12-03-01. Aggrieved by the said order of the learned district

judge dated 12-03-01, petitioner has filed the present application to have

the said order set-aside in revision by his application dated 01-10-02.

Admittedly the petitioner has filed her application in revision nearly 20

months after the pronouncement of the impugned order. Quite

surprisingly the petitioner has not accounted for her delay in filing the

application for revision. She is not even referred to the fact that the

application revision has been filed after a considerable length of time. In

my opinion the long and unaccounted delay in filing the application to

revise the impugned order is fatal and therefore be rejected inlimine.

The petitioner has also failed to disclose the relevant facts relating to the

most relevant inquiry held by the learned district judge in relation to the

proposed final scheme 3507 at the end of which the petitioner has been

directed to make certain amendments to the said proposed scheme of

partition. The direction of the learned district judge to amend the steam

of partition No 3507 has been made as far back as in June 1999. The

petitioner has failed to challenge order of the learned district judge either

by the of an appeal with the leave of this Court first hand and obtained or

by way of revision. As has been suggested by the learned counsel of the

3rd defendant-respondent, I am totally agreement that the petitioner has

made the present application to overcome the difficulties she is

confronted with by not preferring an appeal in time against the order

dated 30-06-99. In terms of section 36A of the partition act any party

who is aggrieved by an order made under section 36 is required to make

an application for leave to appeal within the period of 14 days. Without

358

explaining the circumstances which prevented the petitioner from

resorting to section 36A of the Partition Act, she is unable to have and

maintain the present application for revision as presently constituted.

There are no exceptional grounds urged by the petitioner in an application

warranting the invocation of the revisionary powers of this Court. The

order in respect of which the revisionary jurisdiction has been invoked

does not seem to be tainted with any illegalites either.

For the foregoing reasons, it is my view that the petitioner is not entitled

to maintain the present application for revision. Consequently, the

application for revision is dismissed subject to costs.


KLP/-

identtity of the subject matter- partition action

IN THE COURT OF APPEAL OF THE DEMOCRATIC

SOCIALIST REPUBLIC OF SRI LANKA

Villorage Piyadasa,

359

Dola Para,

Epitamulla, Atulugama.

Substituted-Plaintiff-Appellant

C.A. No:1262/99(F)

D.C. Horana Case No: 246/P

-Vs.-

1. Mohamadu Sulaiman Masrikkar

Abdul Barrie,

Atulugama, Bandaragama.

(deceased) 2. Noona Lebbe Sulai Umma,

Atulugama,

Bandaragama.

2A. Rasamarikkar Mohamadu Sariff,

Marawa,

Atulugama,

Bandaragama.

3. Noona Lebbe Visuma Umma, Atulugama,

Bandaragama.

4. Mohamadu Lebbe Bebee

Nabeesa Umma,

Atulugama,

Bandaragama.

5. Lavana Marikkar Poththi Umma,

Marawa,


6. Pakeer Mohamed Hussain,

Marawa,


360

7. Pakeer Mohamed Mohamed Ali,

Marawa,



And Others.

BEFORE : A.W.A. SALAM, J.

COUNSEL : Harsha Soza, P.C., with Shiran

Samaranayake for the Substituted-Plaintiff-Appellant.

J. Wijayagunawardane with Ruwan de Silva for the 1st


S.A.D.S. Suraweera for the 6th and 7th

DefendantRespondents.

WRITTEN SUBMISSIONS

TENDERED ON : 12.02.2008

DECIDED ON : 14.05.2009

A. W. Abdus Salâm J

The substituted plaintiff-appellant has preferred the

instant appeal to challenge the legality and the propriety

of the judgment and interlocutory decree of the learned

district Judge dated 3rd December 1999. By the said

impugned judgment and interlocutory decree the learned

district Judge dismissed the partition action filed by the

plaintiff, mainly based on the ground that the land

depicted in the preliminary plan consisting of lots

A,B,C,D,E,F and G formed a land known as Pelawatta

alias a portion of Keulawatta and not the eastern portion

of Keulawatta.

The facts relevant to the partition action are as follows.

By plaint dated 25 June 1975, the plaintiff Villowarage

361

Davith Signo, sought to partition the land known as "

Keulawatte Negenahira Keballa" -the eastern portion of

Keulawatta- registered in the land Registry under G

79/378 and bounded on the north by Galgewatta Agala,

east by Liyanage Kumbura south by Keulawatte

Kabellaka Agala and on the west by Managewatte Agala

containing an extent of 2 acres and 2 roods. The plaintiff

further pleaded in his plaint that the said land sought to

be partitioned has also been referred to in certain deeds

registered under G 72/73 as Keulawatta bounded on the

north by portion of Keulawatta east by Liyanage

Kumbura south by portion of the same land and the land

of Madhuru Aatha and on the west by Olaboduwagewatta

alias Delgahawatta &

Surigewatta containing an extent of 2 acres and 2 roods.

According to the plaintiff the original owners of the land

sought to be partitioned were Ismail Lebbe Kulanthai

Marikkar who was entitled to 15/16 shares and Sinna

Lebbe Pithchai Lebbe to 1/16 share. The oldest deed

produced by the plaintiff was P1 dated 26 May 1901

bearing No 34670 by which Ismail Lebbe Kulanthai

Marikkar who is said to have become entitled to the

rights in the subject matter under and by virtue of deed

No 251 dated 25th December 1858, has transferred his

rights to the wife Pitchai Kandu Lebbe Pathuma Nachiya.

It is significant to note that the land dealt in P1 is the

eastern portion of Keulawatta and the boundaries are

consistent with those that are referred to in the plaint. P7

and P8 contain a different description of the land that has

been referred to in the second description of the land

referred to in the schedule to the plaint. The land

referred to in P7 and P8 is Keulawatta bounded on the

north by a portion of the same land on the east by

Liyanagekumbura on the south by portion of the same

land and the land owned by Madhuru Aatha on the west

362

by Balaboduwagewatta alias Delgahawatta and

Suriyawatta in extent about 2 1/2 acres.

The 6th and 7th defendant-respondents (hereinafter

referred to as the “contesting defendants”) who

vehemently opposed the plaintiff's case have submitted

that the land depicted as lots A to G in the preliminary

plan is not the land described in the schedule to the

plaint but a separate land called Pelawatta alias a portion

of Keulawatta. In order to buttress this position they

produced three survey plans marked as 7D3, 7D4 and P.

The contesting defendants have attempted to identify the

subject matter in relation to the land depicted in the said

plans 7D3, 7D4 and P which have been prepared for

several partition cases affecting the plans to the north,

north East and West of the alleged corpus. Plan No

124975 (7D 3) it has been prepared in relation to

partition action No 17458. The position of these

defendants was that the land sought to be partitioned in

the action to wit: Pelawatta alias a portion of Keulawatta,

described in the schedule to the statement of claim of

the contesting defendants in extent of 1 acre 1 rood and

30.7 perches. In order to narrate briefly the background

to a long drawnout dispute, one can conveniently begin

with partition action No 23332 DC Kalutara for the

partition of the land called Keulawatta. At the preliminary

survey the plaintiff in that action pointed out a particular

land as being the subject matter Keulawatta. However,

Davith Singho and another person appeared at the

survey as claimants and insisted that a larger land should

be surveyed as the corpus. At their request the

commissioner surveyed a larger land alleged to be part

and parcel of Keulawatta. The land pointed out by the

plaintiff in that case has been shown as Lot A and the

additional area of land surveyed at the request of Davith

Singho is shown as lots B and C in plan No 1124. The

363

lands shown by the plaintiff in that case, namely lot A is

in extent of 1 acre 2 roods and 27½ perches whereas the

land shown by Davith Singho and another namely lots B

and C is in extent of 1 acre 1 rood and 34½ perches.

The above named Davith Singho was the 9th defendant

in that case and the plaintiff-appellant in this case. It is

very significant to note that Davith Singho who pointed

out lots B and C as part of Keulawatta and should form

the corpus in partition action 23332 later on withdrew his

claim and consented to the exclusion from the corpus of

lots B and C in plan 1124. As readily conceded by the by

the 9th defendant who is the plaintiff in this case it was

only lot A in plan No 1124 that was partitioned in action

No 23332 and consequently lots B and C were excluded

from the corpus. It would be seen that when lots B and C

in plan No 1124 are excluded the Western boundary of

Keulawatta in action No 23332 would be Pelawatta and

Olaboduwagewatta alias Delgahawatta. Noticeably in the

final decree entered in action No 23332 for the partition

of Keulawatta the Western boundary of the corpus has

been described as Cart Road and Pelawatta.

Thus it would be seen that the position of Davith Singho

in the earlier action was that the subject matter of this

case was Keulawatta which he later withdrew and

according to the final decree entered in 23332 the

subject matter of this action should be considered as

Pelawatta and/or Olaboduwagewatta alias Delgahawatta.

As has been mentioned earlier the position of the

contesting defendant is that the subject matter of this

action accordingly is not what the plaintiff identifies as

the eastern portion of Keulawatta but Pelawatta alias

Keulawatte Kattiyak. They maintain that the land in

question was never known as Keulawatta Negahira

Kebella (the eastern portion of Keulawatta ).

364

The explanation offered by the contesting defendants in

their written submissions against this confusion it is

worthy of being commented. According to them although

P2 refers to the eastern portion of Keulawatta, P7 refers

only to Keulawatta and perhaps advisedly Davith Singho

(the plaintiff-appellant in this appeal and 9th defendant

in that case)had agreed to the exclusion of lots B and C

in plan No 1124.

The learned President’s Counsel of the contesting

defendants had submitted that the corpus in this case

was never known as Pelawatta and on the basis of plans

referred to by the plaintiff-appellant the subject matter is

clearly a part of Keulawatta and obviously it has been

referred to as the eastern portion of Keulawatta by virtue

of traditional usage. The learned President’s Counsel has

quite rightly conceded at page 5 of his written

submissions that perhaps the name of the corpus cannot

be justified by reference to its geographical situation as

part of the land called Keulawatta. It is quite significant

to note that even by reference to its geographical

situation, if the subject matter in the partition action

23332 is Keulawatta as has been admitted by the

parties, then the subject matter of this action

undoubtedly should be known by traditional usage not as

the eastern portion of Keulawatta but definitely as the

western portion of Keulawatta since the subject matter in

this action is allegedly situated to the west of

Keulawatta.

The statement of claim of Davith Singho in partition

action 23332 was produced before the learned district

Judge in the course of the trial. According to the

statement of claim filed by Davith Singho on 22 February

1944 she had categorically stated that the corpus in this

partition action is a portion of the land known as

“Keulawatta” and claimed rights inter alia on deed No’s

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3476 and 10949. The said two deeds 3476 and 10949

are produced in this case as well by the plaintiff to prove

his purported title. Quite interestingly in the earlier

partition action Davith Singho had claimed 3/4th share

for himself and his wife Alpinona on the aforesaid deed

No’s 10949 and 3476. However in terms of the final

decree entered in the earlier partition action Davith

Singho or his wife did not get any rights, perhaps due to

the implied admission made by him that the deeds

produced by him are not applicable to the land sought to

be partitioned. It is useful to note that in P2 (deed No

34673) the land sought to be conveyed was that the

eastern portion of Keulawatta. In the circumstances it is

difficult to understand as to whether the same deed

could convey title to the plaintiff in the respect of the

land that has been excluded from the corpus at the

request or initiation taken by Davith Singho himself. It is

also interesting to note that P6, P8, P9 and 4D1 have

been executed after entering the final decree in the

partition case, 23332.

The appellant has heavily relied on the failure of the

contesting defendants to object to the land being

surveyed when pointed out at the preliminary survey.

Apparently, are the learned district Judge has not

considered this matter, as a ground that favours the

appellant’s case. Having considered the overwhelming

evidence adduced at the trial with regard to the mistaken

identity of the corpus by the appellant, I do not think

that the basis on which the trail judge has arrived at the

findings deserve to be disturbed.

Having analyzed the evidence adduced by both parties

the learned district that has come to the conclusion that

the appellant was attempting to assert rights to that part

of the land which had been excluded in the earlier

partition action and the deeds produced by him are

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identical to what he produced in that case. Therefore, the

learned district Judges conclusion was that the said

deeds produced by him in the earlier partition action do

not relate or apply to the land in question depicted in the

preliminary plan.

Even though it is alleged that the learned district Judge

has failed to consider the devolution of title set out by

the contesting defendants, on a perusal of the judgment

it appears that in fact given her mind to the devolution of

title set out by the contesting defendants.

Having considered the statement of claim filed by the

appellant in the earlier partition action and the fact that

he withdrew all his claims in respect of lots B and C, the

learned trial judge was compelled to hold that the land

referred to in the plaint is not what has been surveyed

for the purpose of the partition action. As has been

observed by the learned district Judge the appellant had

identified the land in question by a different and it was

unsupported by the deeds, plans or oral testimony

acceptable to the learned trial judge.

In the circumstances, it is my view that the findings and

the judgment of the learned district Judge cannot be

disturbed. Hence, the appeal preferred by the

plaintiffappellant is dismissed with costs.


AHM/-

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Section 24(3) of the Partition Act and Section 773 of the CPC

ID ENTERED FOR THE PARTITION OF THE LANDALLOTTING

SHARES TO THE PARTIES, AS SPECIFIED IN PARAGRAPH 12 OF THE

PLAINT. NONE OF THE DEFENDANTS SET OUT BY WAY OF A

WRITTEN STATEMENT, AS REQUIRED BY LAW, THE NATURE AND

EXTENT OF THEIR RIGHT, SHARE OR INTERESTED TO, OF OR IN THE

LAND NOR DID THEY DISPUTE ANY OF THE AVERMENTS

RELATING TO THE DEVOLUTION. TRIAL COMMENCED, AFTER A

PERIOD OF FIVE YEARS, FROM THE DATE OF INSTITUTION OF

THE ACTION. PLAINTIFF AND 8,9 AND 10 DEFENDANTS WERE

PRESENT AT THE TRIAL. DEFENDANTS DID NOT SEEK THE LEAVE

OF COURT

TO FILE STATEMENT OF CLAIM OR TO RAISE ANY DISPUTES,

DESPITE THE FACT THAT SUCH A MOVE IS PERMISSIBLE, UNLIKE

IN AN ORDINARY CIVIL ACTION. THE DEFENDANTS WHO WERE

PRESENT AT THE TRIAL, MADE NO EFFORT TO BENEFIT BY THE

MAGNANIMITY OF THE LAWGIVER, TO HAVE THEM PARDONED OF

THE DEFAULT, IF THEY WERE KEEN IN PRESENTING A CASE,

DISPUTING THE STAND TAKEN UP IN THE PLAINT.

IN THE COUR TOF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LNA Case No. CA523/1999(F) D.C. (Homagama) 2530/P

8. T.A. Kamalawathee Perera 9. K. Liyanage Lakshman

10.K. Liyanage Ajithkumara 8,9 and 10 Defendant-Appellants

Vs. Gamage Wijesena

No. 94, Siyambalagoda Polgasowita Substituted

Plaintiff Respondent

Before : A.W.A. Salam, J

Counsel : Ranjan Suwadaratne with Miss Asha

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Ratnayaka and Neomal Senathilaka

for 8,9 and 10 defendant appellats

S. Wijesignhe for the Substituted

Written Submissions

Plaintiff Respondents

Tendered on: 23.02.2006

Decided on : 04.06.2007. In this case, the learned district judge entered an interlocutory decree for the partition of the land, which is the

subject matter of the action, allotting shares to the parties, as specified in paragraph 12 of the plaint. None of

the defendants set out by way of a written statement, as required by law, the nature and extent of their right,

share or interested to, of or in the land to which the action relates, nor did they dispute any of the averments in

the plaint, relating to the devolution of title. The parties did not make any counter claims to the improvements

either. The trial commenced, after a period of well over five years, from the date of institution of the action.

Plaintiff and 8,9 and 10 defendants were present at the trial. At the commencement of the trial and thereafter,

the defendants did not seek the leave of court to file statement of claim or to raise any disputes, despite the

fact that such a move is permissible, unlike in an ordinary civil action. Apparently, the rationale behind this

idea, is t facilitate a thorough examination and authoritative investigation of title, to bind the whole world. However, the defendants who were present at the trial, made no effort to benefit by the magnanimity of the

lawgiver, to have them pardoned of the default, if they were keen in presenting a case, disputing the stand taken

up in the plaint. On the trial date, although the 8,9 and 10 defendants were present, their participation simply confined to the

marking of their attendance and appearance of their lawyer. Thereafter, the Plaintiff’s evidence in chief was

recorded and her case was closed reading in evidence documents marked X,X1 and P1. Thereafter, as the next

step in the case, judgment was delivered on 01.07.1999, ordering a partition of the land, in proportion to the

undivided shares indicated in paragraph 12 of the plaint. The present appeal has been preferred against the

said judgment. The main grounds of appeal as stated in the petition of appeal are as

follows. (1) The judgment of the learned trial Judge is contrary to law and against the available in relation to the

actual title of the corpus of the partition action. (2) The learned district Judge has failed to take into consideration, that the plaintiff could not have

inherited any rights from and out of the subject matter of the action. (3) The learned district Judge was in error, when he failed to consider the contents of the letter attached

to the preliminary survey report. As regards the first ground urged by the appellants, that the judgment is contrary to law and against the material

available in relation to the actual title of the corpus of the partition action, I need only to state that arising from

the averments of the plaint, (which were never controverted by any of the defendants) coupled with the

uncontradicted testimony of the plaintiff ( that remained unchallenged, through out the case) it would have

been impracticable to arrive at any other findings, than what the learned district judge in fact did arrive. As regards the second ground urged by the appellants, regarding the failure of the trial judge to consider, the

inability of the plaintiff to have inherited rights in the subject matter, suffice it would be, to restate what has

been already said in the preceding paragraph, relating to the uncontroverted averments of the plaint and the

uncontradicted testimony of the plaintiff, against which the defendants voiced no opposition. If it was within

the knowledge of he appellants, that the plaintiff could not have inherited rights in the subject matter, appellants

could have filed a statement of claim disputing the averments therein. For reasons best known to them, they

did not do so. Nevertheless, they could have invited court to invoke section 25(3) of the partition law. The

369

attitude of the appellants, in compromising with the plaintiff’s case at the trial, without filing a statement of

claim, renders it impossible, event t imagine reasonable diligence on their part, at any stage of the trial or

thereafter during the pendency of the appeal. The third ground urged by the appellants is the total disregard of the letter attached to the report of the

preliminary survey. This is a letter written by the appellants to the commissioner, stating inter alia that the

plaintiff has no rights to the land sought to be partition and that the appellants have acquired a prescriptive

title to it. This letter cannot be considered as an item of evidence, which the trial judge was bound to take

into account, in the investigation of title. For the above reasons, the appeal in any event, cannot succeed on

merits. Although the grounds assigned hereinbefore, would suffice to reason out the basis of my decision, yet for

purpose of comprehensiveness, I consider it as vital, to tough as briefly as possible, on the question of admission

of fresh evidence at the hearing of he appeal. It is trite law, that reception and/or admission of new evidence,

additional to , or supplementary of the evidence already taken in a court of first instance, touching the matters

that is in issue, can only be permitted subject to certain rules that have been formulated by courts, in

construing section 773 of the Civil Procedure Code. In Laad vs Marshall 1954 3 All Eng. Report 745 at page 748 Denning L J enumerated the conditions

applicable to the reception of fresh evidence, as being such which could not have been obtained with

reasonable diligence for use at the trial, it would probably have an important influence on the result of the case,

although it need not be decisive and that it is presumable to be believed or in other words it must be apparently

credible although it need not be incontrovertible. The principles laid down in the case of Laad vs. Marshall (supra) has been unreservedly followed in many

cases, of our courts. Some of the cases, in which the principles have been applied are Ratwatte Vs Bandara 70

NLR 231, Beatrice Dep vs Lanani Meemaduma (1997 (3) SLR 379). The appellants have not placed any material to satisfy that they were unable to obtain the deed, in question,

upon exercise of reasonable diligence. They have filed a comprehensive statement of objection setting out their

title to the property, when served with an enjoining order and a notice of interim injunction, calling upon them

to show cause as to why an interim injunction should not be issued, to restrain them from felling treed on the

land. This statement of objection against the notice of interim injunction has been filed, almost 5 years prior to

the date of trial, Viz on 17.06.1999. On a perusal of the Journal entries of the original court, it is quite clear that the appellants have been served

with summons twice over, originally with the notice of interim injunction and subsequently, upon the filing of

the declaration under the hand of the attorney at law it terms of section 12. The type of steady persistence

adhered to by the appellants, in breathless anticipation, to defeat the application for injunction, has not been

shown, in pursuing their cause, (if any) in the main action. As stated before, they have not only, failed to ask

for leave to file a statement of claim, but neglected to raise any points of contest, before the matter was finally

disposed of. To grant leave in this matter, to the appellants, to adduce fresh evidence, may result in serious prejudice and

injustice being caused to the plaintiff. It may also not be in agreement with god sense and other acceptable

norms, to grant such permission. I am not unmindful of the adverse consequence of and cure of default in filing a statement of claim in a

partition suit, unless the court otherwise makes allowances for. Section 24(2) grants the discretion to court to

proceed exparte against a party in default, Unfortunately, it is not clear from the proceedings as to whether the

learned judge did exercise his discretion against the appellants. However, taking in to consideration the

strange circumstances, in which the appellants have sought to invoke section 773, it may be argued that in

reality it is an attempt made in an indirect way to persuade an appellate court to exercise the discretion of the

original court under 24 (3), having missed the boat. Undoubtedly, section 773 is not meant to be applied to

rescue a party in default and therefore cannot be made applicable in this matter.

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The lackadaisical attitude of the appellants, in prosecuting their case in the district court, in my view, cannot

be considered as being favourable to relax the rule, which is inflexible to some degree, as referred to in Laad

Vs. Marshall, by Denning L J (supra). In short, one cannot dodge the consequences of a unexplained default,

laps, negligence, or laches, in prosecuting his own case, by resorting to section 773. The appellants’ have not

established that the evidence, they seek to bring in or introduce at the stage of appeal, could not have been

obtained with reasonable diligence for use at the trial. Even if the appeal is taken as perfect and flawless, yet to permit them to produce the deed in question, in the

circumstances peculiar to this case, purportedly under section 773 would result in travesty of justice. The application to adduce fresh evidence is refused. Accordingly, the appeal is dismissed, with costs. Sgd… Judge of the Court of Appeal.

******* I do hereby certify that the foregoing is a true copy of the judgment dated 04.06.2007 filed of record in C.A.

No. 523/1999(F). Typed by:………

Comp’d with:…….. Chief Clerk of the Court of Appea