Anthony Appu v. Margret Fernando and Others
v.MARGRET FERNANDO AND OTHERS
COURT OF APPEAL
DE SILVA, J.,
A. NO. 804/97.
C. MARAWILA NO. 233/P.
JANUARY 21, 1999.
FEBRUARY 22, 1999.
Partition Law, No. 21 of 1977 – Sec. 25 (1) (2) – Statement of claim not filed
– Can objections be taken for the supposed scheme of partition?
The Partition Law makes no prohibition against a party who had failedto participate at the trial. In the absence of a specific prohibition it is notpossible to presume any such prohibition.
The order of the District Judge had deprived the respondent from makinghis objections to the Scheme of Partition.
Order confirming a Final Scheme of Partition in terms of s. 35 of thePartition Law was appealable before the amending Act No. 17 of 1997- S. 36 (a) provides for an appeal with the leave of Court of Appeal firsthad and obtained.
APPLICATION in Revision from the Order of the District Court of Marawila.
S. F. A. Cooray with C. Liyanage for 3rd defendant-petitioner-petitioner.
M. C. Jayaratne for plaintiff-respondent-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
April 29, 1999.
The plaintiff-respondent-respondent (hereinafter referred to as theplaintiff), instituted action in the District Court of Marawila, to partitionthe land called Wellabada. Licensed Surveyor, Ranjith Yapa, who wascommissioned to carry out the preliminary survey, made his returnto the commission depicting the land sought to be partitioned in hisplan bearing No. 1793 dated 09.07.91. The 3rd defendant-appellant-petitioner (hereinafter referred to as the 3rd defendant) did not filea statement of claim and the case proceeded to trial in his absencewithout a contest on 27.07.95. After the conclusion of the evidenceof plaintiff, learned District Judge by his judgment dated 05.12.95,ordered a partition of the land and allotted rights to the partiesaccordingly. Thereafter, upon entering of interlocutory decree, acommission was issued to Licensed Surveyor, Ranjith Yapa, to preparethe final plan for partition. The Commissioner made his return to thecommission submitting his plan and report bearing No. 1798 A, dated16.08.1996. On 05.12.96, Attorney-at-law, Melwin Silva, tendered proxyon behalf of the 3rd defendant and filed a statement of objectionsto the proposed scheme of partition. At the inquiry held on 10.06.97,in the absence of the plaintiff and other defendants with the exceptionof the 3rd defendant, a settlement was effected with the concurrenceof the Attorneys-at-law appearing on behalf of the plaintiff, IA and 4thdefendants and the 3rd defendant for which 3rd defendant subscribedhis signature accepting the terms of the settlement. However, a callingdate was nominated to enable the other parties to signify theiracceptance to the said settlement. But, contrary to that expectation,1A defendant refused to accept the said settlement, whereupon onthe application of the Attorney-at-law appearing for the plaintiff, DistrictJudge confirmed the final plan prepared by Commissioner RanjithYapa bearing No. 1798 A, dated 16.08.96. Thereafter, learned DistrictJudge rejected the notice of appeal and petition of appeal lodged bythe 3rd defendant against the said order. The present application hasbeen filed seeking to revise the aforesaid orders of the District Judge.
At the hearing of this application, learned counsel for the 3rddefendant contended that learned District Judge had misdirected herselfby holding that the 3rd defendant was not entitled to object to thefinal scheme of partition.
Anthony Appu v. Margret Fernando and Others(Weerasuriya, J.)
The learned District Judge had observed that the 3rd defendantwas not entitled in law to object to the scheme of partition for thereason that he had defaulted in filing a statement of claim andparticipating at the trial.
Section 25 (2) of the Partition Law, No. 21 of 1977 provides thatif a defendant fails to file a statement of claim on the due date, thetrial may proceed against him ex parte. Further, it is important to notethat even if he is present at the trial, he would not be entitled withoutleave of Court to raise any contest or dispute the claim of any otherparty to the action.
However, Court is vested with jurisdiction to permit a defendantwho had defaulted in filing his statement of claim on the due date,if after notice to the affected parties, Court is satisfied of the bonatides of the claim set up by him.
Section 25 (1) of the Partition Law imposes on the Court theobligation to examine the title of each party to the action and section26 (F) gives Court power to leave a share unallotted. Investigationof title in partition cases would include inquiry into the question ofpossession. The trial Judge would need to have before him sworntestimony specifying the person in possession and satisfy himself thatall of them are parties entitled to rights.
In the instant case, on the testimony of the plaintiff, even in theabsence of the 3rd defendant, he (3rd defendant) was allotted 4/10undivided shares excluding an extent necessary for planting 35coconut trees.
The Partition Law provides for the issue of a commission for thedivision of land into lots for allotting among the co-owners accordingto their rights. Upon receipt of the commission to partition the land,the Surveyor is required to fix a date for partitioning the land andat least 14 days before that date issue notice in writing to each partymentioned in the statement attached to the commission.
It would be seen that after the Surveyor makes the return to thecommission, the Court is required to fix a date for consideration ofthe scheme of partition proposed by the Surveyor.
Sri Lanka Law Reports
 3 Sri LR.
The Partition Law makes no prohibition against a party who hadfailed to participate at the trial in terms of section 25 (2) to fileobjections to the proposed scheme of partition. In the absence of aspecific prohibition it is not possible to presume any such prohibition.
In the instant case, when the commissioner made his return tothe commission, 3rd defendant filed a statement of objections andCourt fixed the matter for inquiry. In fact, Attorneys-at-law appearingon behalf of the plaintiff and 1A and 4th defendants, entered into asettlement and they sought permission to get the consent of theparties.
The order of the District Judge dated 10.07.97 had deprived 3rddefendant from making his objection to the scheme of partition. Theorder confirming the scheme of partition was made without hisparticipation.
Having examined the relevant provisions of the Partition Law, it.seems to me that District Judge was manifestly in error when sheconfirmed the scheme of partition without considering the objectionsof the 3rd defendant.
The order confirming a final scheme of partition in terms of section35 of the Partition Law is appealable before the Act No. 17 of 1997introduced an amendment to section 36 and brought in section 36A,which provided for an appeal with the leave of Court of Appeal firsthad and obtained. This amendment which was certified on 12.08.97would have no application against the order made on 10.07.97.Therefore, the orders rejecting the notice of appeal and petition ofappeal are wrong.
For the above reasons, I set aside the orders of the District Judgedated 10.07.97, 29.07.97 and 08.09.97. District Judge is directed tohold an inquiry relating to the objections raised by the 3rd defendantagainst the scheme of partition and make an appropriate order interms of the law.
This application is allowed. I make no order as to costs.
DE SILVA, J. – I agree.
ANTHONY APPU v. MARGRET FERNANDO AND OTHERS