Atnara&urii/a Estates Etd., v. Jl*ttna»/ake
1956Present : Gunasekara, J., and Pulle, J.^
H. W. AMARASURIYA ESTATES LTD.,
Petitioner, and E. RATNAVAKE cl at., Respondents
S.C. 627—In the matter of an application in- revision inD.C'. Kandy 4 .-570 j P
Partition action—Interlocutory decree—Intervention of a parly thereafter—Po-erer c-JSupreme Court to interfere in revision—Port-lion Act A o. JO of 19-51, ss. 15(1),17(2), •.IS—Civil Procedure Code, 7S3.
GUXASEKABA,' J.—Amarasuriya Estates Ltd.I V. Ratnayake477
After interlocutory decree was entered under the Partition Act Xo. 1G of 1951,the petitioner, a limited company, sought to intervene becauso the lend describedin the schedule to the plaint and in the interlocutory decree was different from,although adjacent to, the land depicted in the Plan prepared by tho surveyorcommissioned by tho Court. The Company was not a party to tho partitionaction and it was only after tho decree had been entered flint it became awarethat tho land depicted in tho commissioner’s Xian had been surveyed for thepurpose of the action as that described in the schedule.
Held, in revision, that the interlocutory decree should be set aside and thatthe trial Court should be directed to odd the petitioner ns a party and proceedwith the action.'-
2^^-PPEAL from an order of the District Court, Kandy.
II. IT. Jayeicardene, Q. C., with E. S. Amerasinghe, for Petitioner.
D. S. Jayaicickreme, Q. G., with W. D. Gunasekera. for Respondent.'
'Our. adv. vult.
March 2S, 1956. Gttxasekara, J.—
This is an application for the revision of an interlocutory decreeentered under the Partition Act, No. 16 of 1951. The land to which thedecree relates is described in the following terms in the body of thedecree :
All that allotment of land called Deliikanawalagawa liena aliasDehikanuwagawa hena of two acres two roods and fifteen perchessituate in Ivosgaiua in PaJlispattu West of Pat-a Dumbara in theDistrict of Kandy in the Central Province and depicted in PlanNo. 2165 dated 1st February, 1955 marked “ .X ” made by E. R.Claasz Licensed Surveyor and filed of record in this case, containingin extent 2A. 2R. 27P. and fully described and set out in the Schedulohereunder ” ;
and the Schedule, which is a- reproduction of the schedule to the plaint *where the laud sought to be partitioned is described, reads as follows :
“ All that allotment of land called Dehikanewelagawa hena aliasDehikanuwagawa hena of two acres two roods and fifteen perchessituate in Kosgama in Pallispattu West of Pata Dumbara in theDistrict of Kandy in the Central Province and bounded by the Northby land said to belong to Crown, on the East by a Road, on the Southeast by land described in Plan No. 76328 and on the South-West bylands.described in Plans Nos. 62642 and 62641 and on the North-Westby Huluganga, with eveiything thereon and Registered in E 366/117.”
The petitioner, a limited company, alleges that the piece of land describedin the Schedule is a different one from that depicted in Plan No. .-2165.made by 3Ir. Claasz, and that the latter corpus is a ” very small .and:
• GU NASEKARA, J.—Atnarasuriya Estates Ltd., v. Rattiayalce
remote part ” of an estate of some 1135 acres of which the companyis the sole owner. The company is not a party to the partition actionand it alleges that it was only after the decree had been entered that itbecame aware that the land depicted in Plan No. 21G5 had been surveyedfor the puiposc of the action as that described in the Schedule. It is alsoalleged in the petition that.
“ The said part is separated off from the main estate by a streamand t he Petitioner had no reasonable opportunity or means of knowing,nor had the petitioner any notice, of the aforesaid survey.
Mr. Jayawickreme contended at one stage that in view of the provisionsof section 48 of the Partition Act this court had no power to interfere■with the decree in revision, but he later abandoned that contention andconceded that the court had that power. I do not think there can beany doubt that the powers of revision vested in this court by the CourtsOrdinance and by section 753 of the Civil Procedure Code are in no wayrdiminished by the provisions of section 4S of the Partition Act. IfI may say so, I think that Mr. Jayawickreme was right in concedingthat the court has the power to revise the decree in question. Hemaintained, however, that the present case was not one in which theexercise of that power would be warranted by the facts.
The company has submitted in support of its application an affidavitfrom a surveyor, Mr. J. T. David, dated the 23rd September, 1955.Mr. David states in tlris affidavit that he surveyed the land covered by thePlan Ho. 2165 mentioned in the decree and also compared that plan with atracing from the Field Sheet made by the Surveyor-Genera I. Thissurvey and comparison have revealed, according to him, that the landdepicted in Plan Ho. 2165 is identical with the land, depicted in TitlePlans Hos. 62641, 62642 and 62572 (which is claimed by the company) ;and that the land described in the schedule to the plaint (and in theschedule to the decree) is covered bjr Title Plan Ho. 76327 as it appearsin the tracing ; and also that the latter is a separate and distinct land,adjacent to the former. The plaintiff, who is the first respondent, statesin a counter-affidavit “ I deny the correctness of the facts stated in theaffidavit by the petitioner and in the affidavit of Mr. J. T. David, LicensedSurveyor of Kandy ”. But for this denial, the correctness of the factsdeposed to by Mr. David has not been challenged in these proceedings.
The plaint alleges that the land sought to he partitioned, which isdescribed in the schedule, was at one time the property of one AlfredPayne whose title to it was a Crown grant ; that by Deed Ho. 1505 of the16th September, 1S76, he sold it to Mohammaclo Meedin and KaderSaibo ; and that by a series of deeds (the numbers and dates of whichare quoted) Mcedin’s title too eventually devolved on Kader Saibo.
It then traces the devolution of the title to the property from KaderSaibo to the three respondents ; each of whom bought a one-third share,Katnayake (the plaintiff) and Ekanayako (the 2nd defendant) onthe 20th July', 1954, and Havaiatnc (the 1st defendant) on the 15thSeptember, 2954.
GUXASEKLARA, J.—Amarasuriya Estates Ltd.. v. Eatnayakc
The plaint was filed on the 29th September, 1954. A commissionto survey the land Mas issued to Mr. Claasz on the 29th November andlie made his return on the 3rd February-, 1955, which was the returnabledate. The two defendants filed a joint answer on the 31st March,admitting the averments in the plaint, and the case was set doini fortrial on the 11th May. The evidence taken at the trial, which was heldon that day, consisted of that of the plaintiff-respondent, who produceda series of deeds by which Ivacler Saibo’s title to the property describedin the schedule to the plaint devolved on t-lio plaintiff and the twodefendants. The plaintiff declared in his evidence that he soughtc; to partition the land called Dehikanawelagawa-hena depicted in planXo. 2IG5 marked X and filed of record ”, that Kader Saibo was “ theoriginal owner of this land ”, and that Ivader Saibo by a deed of 1904(executed 25 years before the plaintiff was born) gifted it to Da woodSaibo. There is no evidence at all in proof of the assertion that theland dealt with by this deed (PI) was the same as that depicted inPlan Xo. 21G5.
XeitJier the Crown grant nor the relevant title plan was produced orexpressly mentioned in the oral evidence given by the plaintiff. Thedeed PI, however, recites the Crown giant and describes the propertyconverged in the same terms as the schedule to the plaint, except thatit also describes it as being depicted in Title Plan Xo. 76327. Accordingto Mr. David, too, it is the land covered by this title plan, as it appearsin the tracing from the Field Sheet made by the Surveyor-General, thatcorresponds to the land described in the schedule to the plaint. Itseems curious that the reference to Title Plan Xo. 76327 is omitted fromthe description in the Schedule.
Mr. Claasz states in his report that “ no title plan or plan of any kindwas produced by either party to verify nos. mentioned in thecommission ”, and that the boundaries were “ pointed out by the plaintiff 'sparty ”. The person or persons who pointed out the boundariesdepicted in Mr. Claasz’s Plan Xo. 2165 as those of the land describedin the schedule to the plaint did not give evidence.
There is no evidence that can support a- decree for the partition of thecorpus depicted in Plan Xo. 2165 ujjon the footing that it is identical ■with that described in the schedules to the plaint and the decree, butthere is, on the contrary, strong jjrima facie ground for the view that it isa different piece of land.
The interlocutory decree was entered on the 9th June, 1955, and acommission (returnable on the 30th June) was issued to Mr. Claaszon the next day' to partition the land depicted in Plan Xo. 2165. Hoexecuted the commission on the 25th June and submitted his return onthe 30th, and the district court fixed the consideration of the scheme ofpartition for the 25th August, 1955. In the meajitime, on the 5th Julythe Pegistrar of Lands, Kandy, returned after registration a copy of theinterlocutory decree that had been sent to him for that purpose onthe 10th June. On the 6th July the proctor for the defendants fileda minute by which his clients consented to the acceptance of the scheme
GUIsASEKAIt A, J.—Amarasuriya Estates Ltd., v. RainayaLe
of partition and moved that the scheme he confirmed. On the ISth July,the plaintiff’s proctor submitted that the parties wished “ to conveyby deed their divided interests in the land partitioned ” and moved “ thatthe scheme be confirmed to enable the plaintiff to file Final Decree”.Ho also moved that the case be called on that very day and stated thatthe defendant’s proctor had taken notice for that day. The districtjiidgo directed that tho matter should be mentioned on the 25th August.On the 25th August, the company’s proctors moved that the company beallowed to intervene in the action, and consideration of tho proposedscheme of partition was deferred pending a decision on this motion.The motion was later disallowed and tho company made the presentapplication for revision of the interlocutory decree.
It is contended by Mr. Jayawickrcmc that the advertisement of thoaction and of the survey, under section 15(4) and section 17(2) respectivelyof the Partition Act, should have enabled tho company to intervene inthe action before the interlocutory decree was entered on the 9th June,1955. Section 15(4) requires the fiscal to cause a copy of the notice ofinstitution of the action issued to him under 13(1) to be exhibited onthe land to which the notice relates, and the contents of the notice tobe orally proclaimed, after beat of tom-tom. Section 17(2) providesthat the surveyor shall, at least fourteen days before the date fixed byhim for commencing the survey, cause the fact that he will commencethe survey on that date to be orally proclaimed, after beat of tom-tom,on the land to be surveyed. According to tho survej-or’s report, thisproclamation was made on the 21st December, 1954 and the land depictedon Plan Ho. 2165 was surveyed on the 10th January, 1955. The landto which tho notice of the institution of the action related, however,would be the land described in the schedule to the plaint. In the absenceof evidence to prove that this land is identical with the land depictedin the plan it cannot be presumed that it was on the latter that the 'fiscal caused a copy of the notice of the action to be exhibited and itscontents to be orally proclaimed.
I would set aside the interlocutory dccroe and direct the district courtto add the petitioner as a party and proceed with the action. Theplaintiff-respondent must pay the petitioner his costs in the proceedingsbefore this court.
Pcn.L'E, J.—I agree.
Decree set aside.
H.W. AMARASURIYA ESTATES LTD., Petitioner, and E. RATNAYAKE et al., Respondents