BASNAYAKE, C.J.—Brampy Appuhamyv. Menis Appuhamy
1958Present ': Basnayake, C J., and Pulle, J.BRAMPY APPUHAMY, Appellant, and MENIS APPUHAMY etRespondents8. G. 1 (Inty.)—D. 0. Gampdha, 2,972/P
Partition action—Corpus—Extent surveyed by Commissioner less than extent indicated
in plaint—Position resulting therefrom—Partition Act, No. 16 of 1961, si.
4, 16, 23 (7), 26, 48 (7)—Strict compliance with provisions of Act imperative. „
' . .r '
In a partition action it is imperative that the provisions of the Partition Actshould be strictly observed.
The corpus sought to be partitioned in the present action was described in theplaint as a land about six acres in-extent, and a commission was issued to a'surveyor to survey a land of that extent. The surveyor, however, surveyed aland of only 2 acres and 3 roods. Interlooutory decree was also entered inrespect of a land 2 acres and 3 roods in extent without any question being raisedby any of the parties as to the wide discrepancy between the extent given inthe plaint and t^iat showii in the plah made by the surveyor.
None of the defendants had averred under section 23 (l).of the Partition Actthat only a portion of the land described in the plaint should be made the shbjeotmatter of the action.'-
Held, (i) that the Court acted wrongly in proceeding to trial in respect of wfciAjkappeared to be a portion only of the land described in the plaint.
(ii) that when the surveyor proceeded to execute his commission and wasf\unable to locate a land of about 6 acres, he should have reported that fact to ’the Court and asked for its further directions.
PPEAL from a judgment of the District Court, Gampaha.
Sir Lalita Bajapakse, Q.G., with D. B. P. OoonetiUeke and D. 0. W-Wickremasekera, for 6th Defendant-Appellant….
T. P. P. GoonetiUeke, for Plaintiff-Respondent.
If. Obeyesekere, with G. L. L. de Silva, for 5th, 9th, 10th, 12th,' 18th >and 14th Defendants-Respondents.
November 13, 1958. Basnayake, C.J.—
The plaintiff instituted this action for the partition of a land called ,Meegahawatte described in the schedule to the plaint. In that schedulethe land is described as a land bounded on the north by Kongahawattabelonging to Gane Atchi Pathirennehelage Dingihamy and others, eastby the live fence of the land belonging to Gane Atchi PathirennehelagePodisingho, south by the ditch of the land belonging to Gane AtchiPathirennehelage Baronchi Appu, and west by the land belonging toGane Atchi Pathirennehelage Suwath^n Appu and others, and containing15LX
338BASNAYAKE, C.J.—Brampy Appuhamy v. Mems Appuhamy
in extent about six (6) acres together with everything belonging thereto,registered in F. 17/134. A commission was issued to a surveyor undersection 16 of the Partition Act, No. 16 of 1951, requiring him to make aplan of the land described in the schedule to the commission. The des-cription of the land in that schedule is identical with the description givenin the schedule to the plaint except for the omission of the reference to the• particulars of the register in which the deeds affecting the land are regis- -tered. The commissioner did not survey a land of six acres but hesurveyed a land of 2 acres and 3 roods depicted in plan No. 1525 of 24thSeptember 1952 and marked “ X ”. That land contains two well definedboundaries, a village committee road on the north-west and a cart roadon the south-west. These boundaries find no place in the descriptionof the land given in the schedule to the commission. Without any ques-tion being raised by any of the parties as to the wide discrepancy betweenthe extent given in the plaint and that shown in the plan the trial pro-ceeded. The plaintiff produced two deeds P2 and P3 in support of histitle. Both these deeds speak of a land.of about 6 acres in extent anddescribe it in the same way as it is described in the plaint. The learnedDistrict Judge after trial entered an interlocutory decree in respect of aland 2 acres and 3 roods in extent, allotting the shares which accordingto the evidence each of the parties was entitled to. The present appealis by the 6th defendant. In his petition of appeal he has taken the^ objection that the land depicted in the plan filed of record is not the landdescribed in the schedule to the plaint.
It is clear from the proceedings that the provisions of the PartitionAct have not been strictly adhered to. Section 4 of that Act requiresthat “ in addition to the particulars required to be stated in a plaint bythe Civil Procedure Code, every plaint presented to a court for the purposeof instittiting a partition action shall contain the following particulars :—
the name, if any, and the extent and value of the land to which
-. the action relates ;
a description of that land hy reference to physical metes and bounds
or by reference to a sketch, map or plan which shall be appendedto the plaint. ”
In the instant case the plaintiff sought to partition a land of about 6 acresin extent and the surveyor was commissioned to survey a land of aboutthat extent. His commission gave him no authority to deviate from theinstructions issued to him. When the surveyor proceeded to executehis commission and was unable to locate a land of about 6 acres he shouldhave reported that fact to the court and asked for its further directions.
. Without doing so he proceeded to survey a land of 2 acres and 3 roods. jh. extent. He has therefore not duly executed his commission. Section. 16, of..the Partition Act No. 16 of 1951 requires the Court to order the. issue of- a commission to a surveyor directing him to survey the land towhich the action relates andlfchat order was accordingly made.
' BASNAYAKfi.iC,J.—Brampy:A^pu?>amy v. Menja 4.ppuhanvy
It is imperative that in an action sucVas a partition action which givesthe decree under it (section 48 (1) ) an effect which is “ final and con-clusive for all purposes against all persons whomsoever, whatever right,title or interest they have, or claim to have, to or in the land to whichsuch decrees relate ”, the provisions of the Partition Act should he strictlyobserved. In the instant case it does not appear that the Judge andthe lawyers representing the parties gave close attention to the provisionsof the statute under which these proceedings wdre taken. ,
The statute contains elaborate provisions designed to ensure that theland which is partitioned is the land which is described in the plaintexcept where a defendant avers that that land is only a portion of a largerland which should have been made the subjeot matter of the action orthat only a portion of the land so described should have been made suchsubjeot matter (s. 23 (1) ). Where such an averment is made a freshcommission has to be issued for the survey of the extent of land referredto in the averment.
, In the instant case none of the defendants averred that only a portionof the land described in the plaint .should have been made the subjectmatter of the action. The court therefore acted wrongly in proceeding totrial in respect of what appears to be a portion only of the land describedin the plaint. Section 25 empowers the court to try and determine thematters referred to therein and* examine the title of each party to or in theland to which the action relates. In the instant case the action relatesto one land and the determination of the court to another. The proceed-ings, which are contrary to the provisions of the statute, must thereforebe. set aside.
It is unfortunate that these proceedings which commenced in 1952Should now after the lapse of six years have to be set aside and that the'parties have to incur expense which could easily have been avoided hadtheir lawyers been careful, and had the court itself shown vigilance in,seeing that provisions of the Act were observed. We think that thefairest order in this case is that the case should go back for a retrial fromthe stage of the plaint. We accordingly set aside the interlocutorydecree entered by the learned District Judge and direct that th? caseshould be sent back for a retrial commencing from the first step prescribedby the Act. The plaintiff will nq doubt consider whether his. plaintneeds amendment in the light of what has transpired. If any of thedefendants had averred timeously that only a portion of the land des-cribed in the plaint should have been made the subject matter of theaction to the plaint, the delay and expense consequent on taking theobjection at this late stage could have been avoided. The proctorsfor the parties must take the blame for the present situation. It is theirlack of care that has rendered a retrial necessary. We refrain fromordering the proctors to pay the costs of their clients in the .hope thatthey will not charge fees from their clients in the retrial that iias; beenrendered necessary. At the same time we wish to state that if like orrimilar cases in which parties have suffered for want of diligence or care
WEERASOORIYA, 3.—Edwin v. Dias
°n the part of their proctors come before us we shall be compelled in thepublic interest to order the proctors to pay the costs of proceedings whichhave to he set aside owing to their want of care.
Otir order in the instant case is that each party should bear his costsof the abortive trial. The 6th defendant-appellant is entitled to the costsof this appeal as we see no reason to depart from the rule that costsfollow the event.
Ptjlle, J.—I agree.
Case sent back for retrial.
BRAMPY APPUHAMY, Appellant, and MENIS APPUHAMY et al., Respondents