Luinona v. Gunasekara
1958Present: Basnayake, C.J., and Pulle, J.
LUINOjSTA. Appellant, and GUXASEKARA and others. Respondents
S. C. IS:?—V. C. dampdha, 3.076;P
Partition action—Corpus—Can a portion of it be winded from the action ? -Provi-sions of the Partition Act must be carefntl;/ observed—Partition Act, No. Id of1951, ss. 12, 16, 23, 26 (2) (a), 51, 67, 83 (/)—Amendment of pleadings—CivilProcedure Code, s. 93.
The Partition Act makes no provision for excluding from a partition action,after lie pendens is duly registered, any part of tho land to which the actionrelates. If allotments of land of which some of tho parties to tho action aresole owners are included by the plaintiff in his action, the only way of dealingwith them under the scheme of the Act is by declaring in both the interlocutoryand final decrees such parties entitled to those separate allotments.
The provisions of the Partition Act must be carefully observed by Judgesas well as by parties and their lawyers.
When pleadings are amended duo regard must be given to the provisions ofsection 93 of the Civil Procedure Code,
BASNAYAKE, C.J.—Luinona v. Qunasekara
Appeal from a judgment of the District Court, Gampaha.
N.E. Weerasooria, Q.G., with W. D. Gunasekem, for 4th to 6thDefendants-Appellants.
W. Obeyesekere, with G. L. L. de Silva, for Plaintiff-Respondent.
S. A. Marikar, with V. R. D. S. Gunasekem, for 3rd Defendant-Respondent.
S. D. Jayasundera, for 7th Defendant-Respondent.
Cur. adv. vult.
December 18,1958. Basnayaee, C.J.—
The plaintiff-respondent seeks to obtain a decree for partition of a landcalled Delgahakumbura Pillewa. It is described in the schedule to theplaint as a land thirty perches in extent and bounded on the North,South, and West by field of Dissanayake, formerly of the heirs of CharlesMedonsa Wijeratne Gurunnanse, and East by Main Road.
When the land was surveyed on a commission issued by the Courtunder section 16 of the Partition Act, the plaintiff and the first fivedefendants were present. The plaintiff pointed out the boundaries. Thesurvey disclosed that the extent of the land was 1 rood and 4 perches andnot 30 perches as described in the plaint. In the plan the surveyordepicted the land as consisting of three blocks A, B, and C of 22 "5perches, 14 perches, and 7 -5 perches, respectively. Lots A and C containbuildings while B is a bare land.
The 7 th defendant averred in his answer that Lot C was his exclusiveproperty and the appellants (4th, 5th and 6th defendants) averred thatLots A-and B alone should be partitioned. The learned District Judgeafter hearing evidence held that Lot A alone should be partitioned andentered interlocutory decree as follows:—
“ It is ordered and decreed that the Lot A of the land called Bel-gahakumbure Pillewa situated at Kidagammulla in Meda Pattu ofSiyane Korale in the District of Colombo, Western Province, andbounded on the North by field of S. A. Dissanayake formerly of theheirs of Charles Medonsa Wijeratne Gurunnanse East by Main Roadand South by Lot C of this land and by field of S. A. Dissanayakeformerly of the heirs of Charles Medonsa Wijeratne Gurunnanse andon the West by Lot B of this land and containing in extent twentytwo and half perches (A.0-R.0-P.221) as depicted in survey Plan No. 614dated 21.10.52 and made by M. S. Perera, Licensed Surveyor andCommissioner, and marked X and filed of record be and the same ishereby declared the common property of the undermentioned parties
348BASISTAYAKE, C.J.—Luinona v.- Oimasekara
and that the same be divided and partitioned amongst in the followingshares to wit
Plaintiff to an undivided ….28/168 shares
1st defendant to an undivided..14/168,,
2nd defendant to an undivided..14/168„
3rd defendant to an undivided..22/16S,,
14, 15, 16, and 17 defendants jointly to anundivided…. 75/168.,
are unallotted. ’’
The decree entered by the learned trial Judge is in respect of only apart of the land to which the action relates. Section 26 (2) (<t) authorisesthe Court to enter an interlocutory decree ordering a partition of the land.The land in that context means the land or lands constituting the subjectmatter of the action (vide section 83 (1), definition of “ land ").
A decree in a partition action must be in respect of the land to whichthe action relates. In the instant case the action relates to one land andthe decree is in respect of another. If a plaintiff is unable to establishhis title to the land which he seeks to partition his action must fail.
The defendant who claimed Lot C maintained that it was his exclusiveproperty. It was the plaintiff’s counsel who said that Lot B was not apart of the land to which the action relates. The learned Judge heldthat as the plaintiff had pointed out the boundaries to the surveyor lotsA,'B, and C were lots of the land in respect of -which she asked for adecree of partition. Tire plaintiff does not appear to have been clearas to what the land was, for the learned Judge himself observes :
“ The question has been raised as to what the land sought to bepartitioned is : the plaintiff herself was not quite sure as to what shewanted partitioned. She had pointed out the boundaries of the landdepicted in the Plan X, which is divided into three Lots A, B, C. ”
The course taken by the learned Judge is not authorised by the Act.The plaintiff’s proctor has certified under section 12 of the Act that Uspendens has been duly registered under the Registration of Documents• Ordinance as an instrument affecting the land to which the action relates.That registration is on the register of documents in respect of all the lotsincluding the excluded lots B and C which are not the subject-matterof the decree. The effect of section 67 is that after lis pendens is dulyregistered no voluntary alienation, lease or hypothecation of any un-divided share or interest of or in the land to which the action relates shallbe made or effected until the final determination of the action by dis-missal thereof or by entry of a decree of partition or by the entry of acertificate of sale. Now in the instant case if the interlocutory decreestands there can be no decree of partition in respect of lots B and C.When the Court transmits a copy of the decree for registration undersection 51 to the Register of Lands, he will find himself unable to cany
•BASNAYAKK, C.J.—Luinona v. Gunasekara349
out the duty imposed on him by that section on account of the discrepancyin the description of the land in the registration of the action as a Uspendens and that in the decree, for, it requires him to duly register suchcopy under the Registration of Documents Ordinance as an instrumentaffecting the land to which it relates. In the application for registrationof lis pendens the land is described in precisely the same way as in theschedule to the plaint.
The scheme of the Partition Act is that once an action is instituted andIts pendens is duly registered the action must proceed in respect of the•land described in the plaint except where a larger land is made the subject-matter of the action. In such a case the procedure prescribed by section:23 must be followed. The Act makes no provision for excluding from theaction any part of the land to which the action relates. If allotmentsof land of which some of the parties to the action are sole owners areincluded by the plaintiff in his action the only way of dealing with themunder the scheme of the Act is by declaring in both the interlocutoryand final decrees such parties entitled to those separate allotments. Inthe instant case if the 7th defendant proved his exclusive right to lot C heshould have been declared entitled to it in the interlocutory decree instead•of excluding it. Similarly in regard to lot B the party who proved hisclaim to it should have been declared entitled to it. As the plaintiffhas failed to establish the averments in the plaint and as the proceedingsare not in accordance with the Partition Act the decree cannot be allowedto stand and is accordingly set aside and the plaintiff’s action dismissedwith costs.
I order that the plaintiff and the 3rd defendant do pay the 7th defendantthe costs of trial.
The 4th, 5th, and 6th defendants are entitled to the costs of appealpayable by the plaintiff and the 3rd defendant. The 7th defendant willhear his own costs of appeal.
Before I part with this judgment I must repeat what I said in S. C. No. 1,D. C. Gampaha Case No. 2972/P 1. The provisions of the Partition Actmust be carefully observed by Judges as well as by parties and theirlawyers. In the instant case the pleadings have been amended withoutdue regard to the provisions of section 93 of the Civil Procedure Code.Judges of first instance would do well to read carefully the provisions ofthat section before an application to amend pleadings is granted. In•quite a number of appeals that have come up before us amendments topleadings have been allowed without the provisions of section 93 being■observed.
In the instant ease the certificate of the proctor under section 12 of thePartition Act is undated and does not satisfy the requirements of thatsection. The proctor should certify inter alia that all entries in theregister maintained under the Registration of Documents Ordinanceas relate to the land constituting the subject-matter of the action have
1 im>S SON. L. B. 337.
H. X. G. FERNANDO, J.—Dharmawansa Thero v. Vklcu Banda
been personally inspected by him after the registration of the action as alis pendens. The certificate should also be dated, a prime requirement,in regard to all documents prepared by a proctor to be filed in a Courtof law. This has not been observed.
Puli.e. J.~I agree.
Decree set aside.
LUININA, Appellant, and GUNASEKERA and others, Respondents