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Partition suit—Discovery of n&ic evidence after judgment—Remedy ofrestitutio in integrum—Laches—Partition Ordinance, No. 10 of1863.
In the absence of fraud the remedy of restitutio in integrum, is notavailable in a partition suit on the ground of discovery of freshevidence after judgment. The only remedy available is an actionfor damages as provided for by the Partition Ordinance.
Quaere,—Whether such an action for damages would lie againsta person who in good faith claimed title and did not wilfully suppressany evidence on which the party claiming damages relied ?
HIS was an application for relief by way of restitutio in integrumon the ground of discovery of fresh evidence.
The facts are fully stated in the judgment of Wendt J.
A. Drieberg, for the fifth defendant, appellant.
A. St. V. Jayewardene, for the petitioner, respondent.
Cur. adv. vult.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justiceand Mr. Justice Wendt.
BABUN APPTJ v. SIMON APPU et al.
D. C., Matara, 2,989.
December 24, 1907. Wendt J.—
This is a proceeding to obtain restitutio in integrum, and it arisesout of the following facts. The action in which the present petitionis presented was one instituted in September, 1902, under the Parti-tion Ordinance, and in the land which was the subject of it theplaintiff claimed three-eighths, while the fifth defendant (thepresent appellant) claimed as against him one-fourth out of thosethree-eighths.
The District Judge on March 12, 1903, allotted the whole three-eighths to the plaintiff, but in appeal this Court ordered a new trial,and after that new trial the District Court on December 8, 1903,upheld appellant’s claim to the one-fourth. Plaintiff appealed,but his appeal was dismissed in March, 1904, The land was there-after sold under the decree in. December, 1904. The proceeds weredistributed among the parties declared entitled, and a certificateof sale was in March, 1905, issued to the purchaser, who has sincebeen in possession of the land.
One Doan was the original owner of half of the land, which shareincluded the one-fourth in dispute, the other one-fourth beingadmittedly vested in fourth defendant and others. Plaintiff alleges
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the disputed one-fourth was conveyed by Doan to Jayan, from 1907.whom he nlairna it, while the fifth defendant alleges that Doan died December 24.possessed of it, and claims it by conveyance from his heirs. The Wendt J.alleged conveyance by Doan to Jayan was never produced in theDistrict Court, although attention was pointedly directed to thenecessity for it.
On August 81, 1906, the present petition was presented to theCourt, seeking to re-open the whole question of title on the groundof the discovery of the missing conveyance to Jayan, and this Court,upon the usual ex parte application, remitted the matter .to theDistrict Court for inquiry. The District Judge has now “ dismissedthe fifth defendant’s claim," and decreed that plaintiff “ is entitledas absolute owner to the one-fourth share." He has not consideredthe effect of this decree upon the sale of the land and distribution ofits proceeds.
No fraud is alleged or proved by the petitioner. His sole groundfor relief is the discovery of fresh evidence. It is therefore necessaryvery narrowly to examine the facts of this alleged discovery, for itwould tend seriously to impair, if not destroy, confidence in a solemnadjudication upon title to land in the present case, an adjudicationwhich under the Partition Ordinance binds the whole world, if it wereliable, after an indefinite lapse of time, and after the rights of newparties have accrued by purchase under a judicial sale, to be setaside on the ground that new evidence has come to light. What,then, does the petitioner say on this point ? Nothing more thanis contained in paragraph 6 of his petition (for he called no evidenceon the point at the hearing); that paragraph is as follows:—“ Sincethe said finding (that of December, 1903) the petitioner has discover-ed the deed referred to above. It seems to have been filed bypetitioner’s father before he was born, in the case No. 11,532 of theCourt of Bequests of Matara. Every search was made for the deedwhile the case was pending, and no trace of it could have beendiscovered. Petitioner even gave a petition to the Registrar'sOffice for a copy of the deed, and after search was made the peti-tioner was informed that it could not be found. The petitioner hadnot the number or date of the deed, and so petitioner could notfurnish it to the Registrar of Lands.”
It will be observed that the petitioner does not give the date whenhe did in fact discover the deed. For all that appears it might havebeen dining the pendency of his appeal. At all events I find fromthe copy of the deed which he produces that it was issued to himby the Registrar on July 3, 1905, and yet he appears to have takenno steps to bring this new evidence to the notice of the Court, untilhe filed the present petition. The delay is wholly unexplained andis unreasonable. The Courts rightly require- the utmost prompti-tude in taking advantage of such a discovery, and I consider that thepetitioner’s laches disentitles him to any relief.
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1 am also disposed to think that, in the absence of fraud, such anapplication as his comes too late, when the judgment complainedof has been fully executed and the rights of new parties have accruedunder it. Lastly, even if the remedy would be open in an ordinaryaction, I think it is excluded in the case of a decree under the Parti-tion Ordinance, and that the only relief available (if any) is by anaction for damages. I say “ if any ” because I doubt if damagescould be awarded against persons who in good faith claimed (andproved) title, and did not wilfully suppress the piece of evidenceupon which the petitioner now relies.
I think the decree of the District Court should be reversed, andthe petition dismissed with costs in both Courts.
Hutchinson C.J.—I concur.
BABUN APPU v. SIMON APPU et al