Sopaya Silva v. Magilin Silva
SOPAYA SILVA AND ANOTHER
COURT OF APPEALABEYWIRA, J. AND S. N. SILVA, J.
A. NO. 474/82(F)
C. MATALE NO. 1375/POCTOBER 17, 1988
Partition – Discrepancy in extent of corpus surveyed with corpus described in plaintand commission – Duty of Commissioner – Us pendens – District Judge deciding onpoint not argued and on which parties were not heard – Natural Justice – Sections18(1)(a)(iii), 18(2), 19(2) of the Partition Law.
The plaintiff filed plaint to partition a land of 8A. 3R 29P and lis pendens wasregistered in the folios where the deeds for this land were registered. When theCommission was taken out the surveyor surveyed an extent of 11 AR 1 – P 33. Nocontest was raised about the registration of the lis pendens. At the trial the contestwas resolved and evidence led accordingly. The learned District Judge dismissed thecase holding that the lis pendens was wrongly registered.
It was not open to the District Judge to dismiss the case on the point of wrongregistration of the lis pendens – a point on which there was no contest and, noargument was heard. It is a violation of natural justice.
The lis pendens being registered in the folios where the deeds of the landdescribed in the plaint were registered was correctly registered.
On receipt of the surveyor's return which disclosed that a substantially larger landwas surveyed the District Judge should have decided on one of the followingcourses after hearing the parties:
to reissue the Commission with instructions to survey the land as describedin the plaint. The surveyor could have been examined as provided in section18(2) of the Partition Law to consider the feasibility of this course of action.
to permit the Plaintiffs to continue the action to partition the larger land asdepicted in the preliminary survey. This course of action involves theamendment of the plaint and the taking of consequential steps including theregistration of a fresh lis pendens.
to permit any of the Defendants to seek a partition of the larger land asdepicted in the preliminary suivey. This course of action involves anamendment of the statement of claim of that defendant and the taking ofsuch other steps as may be necessary in terms of section 19(2) of thePartition Law.
Sri Lanka Law Reports
(1989] 2 Sri LR
The surveyor under section 18(1 )(a)(iii) of the Partition Law must in his reportstate whether or not the land surveyed by him is substantially the same as theland sought to be partitioned as described in the schedule to the plaint.Considering the finality and conclusiveness that attach in terms of s. 48(1) of thePartition Law to the decree in a partition action, the Court should insist upon duecompliance with this requirement by the surveyor.
Case referred to:
1. Brampy Appuhamy v. Monis Appuhamy 60 NLR 337.
APPEAL from judgment of fhe District Judge of Matale.
H. Soza for plaintiff-appellant.
D. C. W. Wickremasekera for defendant-respondent.
Cor. adv. vult.
November 16, 1989.
S. N. SILVA, J,
The Plaintiff-Appellants have filed this appeal against the judgmentdated 5.10.1982 entered by the District Judge of Matale. By the saidjudgment the action of the Plaintiff-Appellants was dismissed withoutcosts.
The Rlaintiff-Appellants filed action in the District Court of Matale topartition the land called “Atuwamula Putukakule Ulpahehena" fullydescribed in the schedule to the plaint. According to the schedule theland is in' extent A8-R3-P29:
The 1st and 2nd Defendant-Respondents filed a statement ofclaim. However, on 31-8-1982 when the case was taken up for trialthe contest'was resolved and only the 2nd Plaintiff-Appellant gaveevidence. He was not cross-examined and the District Judge fixed adate .for documents to be tendered and the documents were, dulytendered by the Plaintiff-Appellants..
By his judgment, the District Judge dismissed the action solely onthe ground that the lis pendens had not been correctly registered. Itis stated in the judgment that although the lis pendens was registeredin respect, of A8tR3-P29 (being the extent described in the plaint) thecorpus according to the preliminary survey is in extent A11-R1-P33.
Counsel for the Plaintiff-Appellants made two submissions in
Sopaya Silva v. Magiiin Silva (S. N. Silva, J.)
support of the appeal, to wit:
That there was no contest between the parties with regard tothe due registration of the lis pendens and that the DistrictJudge arrived at his finding without hearing the parties onthis matter;
That the lis pendens was correctly registered in respect ofthe land described in the plaint and the error lay in thepreliminary survey which covers a larger extent of land.Counsel relied on the judgment of Basnayake, C.J. in thecase of Brampy Appuhamy v. Monis Appuhamy (t) where itwas held that if the surveyor was unable to locate a land Ofabout the extent described iri the commission he shouldreport the fact to Court and seek further directions.
Counsel for the Defendant-Respondents submitted that thePlaintiff-Appellants were present at the survey apd subsequentlyproceeded to trial on the basis that the land to be partitioned was asdepicted in the preliminary plan. In these circumstances the DistrictJudge acted correctly by dismissing the action of thePlaintiff-Appellants.
An examination of the proceedings reveal that the parties were notat issue regarding the due registration of the lis pendens. Even theDistrict Judge did not raise this matter as an issue at the trial.Therefore no party had an opportunity to address Court as to theregularity of defects iri the lis pendens that was registered. It appearsthat the discrepancy iri extent of the land, as described in the lispendens and the preliminary plan was discovered by the DistrictJudge at the stage of writing the judgment and that he proceeded tomake the order without hearing the parties: The procedure adoptedby the District Judge is in violation of a basic rule of natural justicewhich requires that the parties be afforded a due hearing before adetermination is made. This appeal has to succeed on that groundalone.
The application for the registration of the lis pendens should interms of section 6(1) of the Partitiori Law be filed in Court by thePlaintiff with the plaint in the action. The application must conform tothe requirements of the Registration of Documents Ordinance andspecify inter alia the extent of the land sought .to be partitioned. In
Sri Lanka Law Reports
119891 2 Sri LR
this case the District Judge has found that the lis pendens had beenregistered in respect of the same land as described in the plaint.Hence, there is no defect in the registration of the lis pendens. Theerror lies, as correctly submitted by the Counsel for thePlaintiff-Appellants, in the preliminary survey.
Section 16(1) of the Partition Law requires that a commission beissued "to a surveyor directing him to survey the land to which theaction relates". It implies that the land surveyed must conformsubstantially, with the land, as described in the plaint (and in respectof which a lis penden has been registered), as regards the location,boundaries and the extent. Further, it is for this reason that section18(1 )(a)(iii) requires the surveyor to express an opinion in his report
"whether or not the land surveyed by himis substantially the
same as the land sought to be partitioned as described in theschedule to the plaint". Considering the finality and conclusivenessthat attach in terms of section 48(1) of the Partition Law to thedecrees jn a partition action, the Court should insist upon a duecompliance with the requirement by the surveyor.
If the land surveyed is substantially different from the -land asdescribed in. the schedule to the plaint, the Court has to decide atthat stage whether to issue instructions to the surveyor to carry out afresh survey in conformity with the commission or whether the actionshould be proceeded with in respect of the land as surveyed.
In the case of Brampy Appuhamy v. Mortis Appuhamy (supra) itwas held that the Court acted wrongly in proceeding with a partitionaction where the land surveyed was substantially smaller than theland as described in the plaint. The reasons underlying the decisionof the Supreme Court i.e. the finality and conclusiveness attaching tothe interlocutory and the final decrees in terms of section 48(1), applywith even greater force to a situation where (as in this case) a largerland is surveyed. Therefore we hold that the District Judge erred inproceeding w,ith the action to partition the substantially larger land asdescribed in the preliminary survey. On receipt of the Surveyor sreturn to, the. commission, which disclosed that a substantially, largerland was surveyed, it was incumbent on the District Judge to decideon one of the following courses of action, after hearing the parties,viz:,-
to reissue the commission with instructions to survey the land
Rowel v. Dabrera (Gunasekera, J.)
as described in the plaint. The Surveyor could he /e beenexamined orally as provided in section 18(2) to consider thefeasibility of this course of action:
to permit the Plaintiffs to continue the action to partition thelarger land as depicted in the preliminary survey. This courseof action involves the amendment of the plaint and the takingof other consequential steps including the registration of afresh lis pendens.
to permit any of the Defendants to seek a partition of thelarger land as depicted in the preliminary survey. This courseof action involves an amendment of the statement of claim ofthat Defendant and the taking of such other steps as may benecessary in terms of section 19(2).
For the reasons set out above, we allow the appeal and set asidethe order dismissing action. We direct that proceedings commenceafresh from the stage of the return to the commission by theSurveyor. Fresh proceedings will be held on the basis pf theguidelines stated above. We make no order as to costs of the appeal.
ABEYWIRA, J. – I agree.
Appeal allowed.Case sent back.
SOPAYA SILVA AND ANOTHER v. MAGILIN SILVA