v.SILVA AND OTHERS
COURT OF APPEAL.
DE SILVA, J.JAYAWICKRAMA. J.
CA NO. 143/98.
DC BALAPITIYA 3062/NP.14™ JUNE. 1999.
13th, 18th OCTOBER. 1999.
Appeal – Appeal dismissed on a technical ground – Revisionary jurisdictionof the Court of Appeal invoked-Sections 4.5,6,12,19(1) Partition Law notfollowed – Illegality – Civil Procedure Code. S. 754, 759, 765.
The Plaintiff Respondent instituted action to partition Lot A in extent 34Perches. The Defendant contends that it consists of Lots A. B and C andis in extent of 3 Roods.
The District Court held that the corpus consists of lots A and B, and C.and further held that the 2nd Defendant Respondent had prescribed tothe said land. Being aggrieved the 3rd Defendant Petitioner lodged anappeal which was rejected. Thereafter the Petitioner moved by way ofRevision.
The power given to a Superior Court by way of Revision is wideenough to give it the right to revise any order made by an original court.Its object is the due administration of justice and the correction of errorssometimes committed by the Court itself in order to avoid miscarriage ofjustice.
On reading S. 19(2)(a) it is imperative on the part of the Defendantwho seek to have a larger land than that sought to be partitioned to followthe procedure laid down in Ss. 4,5,6, of the Partition Law. The DefendantRespondent who sought to partition a larger land than that of the PlaintiffRespondent has not followed the imperative procedure laid down inS19(2)(g).
The mere registration of the lis pendens alone would not entitle the2nd Defendant Respondent to have a larger land partitioned unless hefollows the procedure laid down in S. 19(2)(a)-(g).
Sri Lanka Law Reports
[20001 2 Sri L.R.
Under S. 19(2)(g) requirement of S. 12 becomes applicable to a defendantwho seeks to have a larger land partitioned.
Error in not following the provisions of S.19(l) amounts to anillegality, thus Revision lies.
APPLICATION to revise an order of the District Court of Balapitiya.Cases referred to :
Merino BF vs Seyed Mohammed 69 CLW 34
Atukorale vs Swaminaihan 41 NLR 165
Silva vs Silva 44 NLR 494
Abdul Coder vs Sithi Nissa 52 NLR 536
Sinnalhamby vs Meera Mohideen 60 NLR 394
P.A.D. Samarasekera, P.C., with Keerthi Sri Gunawardena for 3rd Defend-ant-Petitioner.
Rohan Sahabandu for 2A Defendant-Respondent.
Cur. adv. vult.
November 10, 1999.
JAYAWICKRAMA, J.This is an application to revise the order of the learnedDistrict Judge of Balapitiya dated 06. 12. 1998 wherein heheld that the corpus consists of lot (A) and (B) (later marked as
B and C) in Plan No. 681 (marked Y) and that the 2ndDefendant had prescribed to the said land.
The Plaintiff-Respondent instituted action for thepartition of the land called Amuwatta alias Janis NaidegeWatta alias Singho Muhandiran Ralahami Wagakala Watta inextent about 2 roods. The only dispute at the trial was relatingto the identity of the corpus.
After trial the learned District Judge by his judgmentdated 11. 09. 1978 held that as the Plaintiffs were uncertainas to the land which they sought to partition, and therefore .they have failed to prove the corpus to be partitioned and as
Soysa v. Silva and Others (Jayawickrama, j.)
such they were not entitled to maintain the action and thePlaintiffs action was dismissed. The Plaintiff appealed againstthe said judgment and the Court of Appeal by its order dated03. 02. 1984 set aside the judgment and the case was remittedfor a fresh hearing.
At the 2nd trial the question that arose for decision waswhether the corpus consists of lot (A) in Plan No. 467 (markedX) or whether the lots (A) &(B) in Plan No. 681 (marked Y).Lot (B) had later been divided into two lots which are markedas (B) & (C).
After the 2nd trial the learned District Judge. by hisjudgment dated 06. 12. 1988 held that the corpus consists oflots (A) & (B) (later marked as (A), (B) & (C) in Plan No. 681(Y)and further held that the 2nd Defendant had prescribed to thesaid land.
Being aggrieved by the said judgment the Petitioner filedan appeal C.A. No. 256/89(F) by filing a notice of appeal dated07. 12. 1988 and a petition of appeal dated 31. 01. 1989.
However, the notice of appeal filed by the 3rd Defendant-Petitioner was signed by himself when he had a registeredAttorney on record and when this matter came up before thisCourt, the appeal was dismissed as it was contrary to theprovisions of Section 754 of the Civil Procedure Code. Thepartition action was instituted on 25. 05. 1973 (26 years ago)and the judgment was delivered in November 1988 (11 yearsago). The appeal was rejected in 1988.
The Petitioner in anticipation of the result of the Court ofAppeal due to the series of decision that such notice signed bythe Petitioner when there is a registered Attorney on record isnot valid and that the appeal may get rejected, for that reasonwithout consideration of the merits of the appeal, thepetitioner invoked the extraordinary jurisdiction of revisionvested in this Court.
Sri Lanka Law Reports
12000} 2 Sri L.R.
The learned counsel for the 2A Defendant-Respondentsubmitted that from 1988 till the matter came up before theCourt of Appeal the defective appeal was pending in the Courtof Appeal and without taking steps to cure the defectsthis revision application was filed after 10 years of thepronouncement of the judgment by the District Court. Hefurther contended that there was a long delay on the part of thePetitioner to move the Court of Appeal by way of revision. Hefurther submitted that there were two options available to thePetitioner under Section 759 or under Section 765 of the CivilProcedure Code. He contended that having failed to exercisehis statutory rights under the above section for a period of 10years, the petitioner cannot now move by way of revision afterthe appeal was rejected by the Court of Appeal.
The learned counsel for the 2nd Defendant-Respondentcontended that the petitioner should not be allowed to moveby way of revision after his appeal was rejected for noncompliance with Section 754 of the Civil Procedure Code. Afatal error was on record for over 10 years which he could havecorrected with valid reasons which he has not done. Thelearned counsel further submitted that although the powersby way of revision conferred on the Appellate Court are wide,the Appellate Court would exercise its discretion and grantrelief by way of revision only and unless there is somethingillegal about the order. The learned counsel contended that thelearned District judge is entitled to formulate an opinion on thefacts and when acting in revision, the question to be decidedis not whether a decision is right or wrong but whether it islawful or unlawful.
The Court of Appeal is invested with a right to call for andexamine the record of any case, whether already tried orpending trial, in any court, and satisfy itself as to the legalityor propriety of any judgment or order passed therein, or as tothe regularity of the proceedings of such Court. (Section 753Civil Procedure Code.)
Soysa v. Silva and Others (Jayawickrama. J.)
This power of revision is an extraordinary power whichis quite independent of and distinct from the AppellateJurisdiction of the Court of Appeal.
It’s object is the due administration of Justice and thecorrection of error, sometimes committed by the Court itself,in order to avoid miscarriage of Justice (Merino B.F. vs SeyedMohamed11).
The power given to a Superior Court by way of revision iswide enough to give it the right to revise any order made by anoriginal Court, whether an appeal has been taken against it ornot. This right will be exercised in which an appeal is pendingonly in exceptional circumstances as, for example, to ensurethat the decision given on appeal is not rendered nugatory.
(Athukorala vs Swaminathan121; Silva vs Silva13).
In Abdul Coder vs Sitti Nisa!4), notwithstanding the factwhen an appeal had been abated, the Supreme Court heardthe Appeal by way of revision, observing that it did so as amatter of indulgence and interfered with the judgment on apoint of law.
In Sinnathamby vs Meera Mohideen!51, it was held that theSupreme Court possesses the power to set aside, in revision anerroneous decision of the District Court in an appropriate caseeven though an appeal against such decision has beencorrectly held to be abated, on the ground of non-compliancewith some technical requirements in respect of the notice ofsecurity.
It must be noted in this case the Plaintiff filed this partitionaction to partition lot (A) in Plan No. 467(X) which is of extentonly 34 perches. The learned District Judge rejected theevidence of the Plaintiff and accepting the evidence of theDefendant concluded that the land to be partitioned should belot A, B & C of Plan No. 681(Y) which is a larger land than theland sought to be partitioned by the Plaintiff, in extent of 3roods.
Sri Lanka Law Reports
(200012 Sri LR.
The learned District Judge accepted the evidence of theDefendants and concluded that the larger land should be thesubject matter of this partition action.
Section 19(2) (a) of the Partition Law states that:
“Where the Defendant seeks to have a larger land thanthat sought to be partitioned by the Plaintiff made the subjectmatter of the action in order to obtain a decree for a partitionor sale of such larger land under the provision of this law. hisstatement of claim shall include a statement of the particularsrequired of Section 4 in respect of such larger land; and heshall comply with the requirement of Section 5 as if hisstatement of claim were a plaint under this Law in respect ofsuch larger land”.
According to Section 19.(2)(b),
“Where any Defendant seeks to have a larger land madethe subject matter of the action as provided in paragraph (a)of this sub section, the Court shall specify the party to theaction by whom and the date on or before which an applicationfor the registration of an action as a lis pendens affecting suchlarger land shall be filed in Court, and the estimated costs ofSurvey of such larger land as determined by Court shall bedeposited in Court”.
According to Section 19(2) (c) where the party specifiedunder paragraph (b) of the sub section fails to comply with therequirements of that paragraph, the Court shall make orderrejecting the claim to make a larger land the subject matter ofthe action.
On a reading of Section 19(2) (a) it is imperative on the partof the Defendant who seeks to have a larger land than thatsought to be partitioned by the Plaintiff to follow the procedurelaid down under Section 4, 5 & 6 of the Partition law, whichmeans that such Defendant should act as a Plaintiff in apartition action. It is abundantly clear that the Defendant who
Soysa v. Silva and Others (JayawickramouJ.)
sought to partition a larger land than that of the Plaintiff hasnot followed the imperative procedure laid down in Section19(2) and (3) of the Partition Law.
The Plaintiff filed this partition action on 25. 05. 1973and according to the Journal Entry dated 08. 06. 1973 thelis pendens has been registered under No. B 199/82 dated30. 06. 1973.
Thereafter according to Journal Entry 5 dated 30. 08. 1973the Plaintiff filed a motion stating that the lis pendens hasbeen registered correctly and moved that the lis pendens beregistered again. The relevant Journal Entry is as follows :
The above application was allowed and the lis pendenshad been registered again under No. (b) 159/209 dated03. 09. 1973.
The 2nd Defendant filed his statement of claim underSection 19(1) of the Partition Law on 07. 11. 1974. The 2ndDefendant in his statement has stated that the corpus shouldbe of 3 roods and not 34 perches as stated in the plaint.
The 2nd Defendant prayed that as the lis pendens has notbeen properly registered that the plaint be dismissed or topartition the larger land as depicted in his statement of claim.
Although the 2nd Defendant seeks to have a larger landthan that sought to be partitioned by the Plaintiff he has notacted according to the provisions of Section i9(2) of thePartition Law.
On the 1st date of trial i. e. on 12. 11. 1974 the 2ndDefendant moved that a commission to depict a larger land
Sri Lanka Law Reports
I2000J 2 Sri UR.
than which is sought to be partitioned by the Plaintiff andaccordingly a Commission was issued and the Commissionerafter executing the Commission returned his Plan No. 681 on24. 10. 1975.
According to Journal Entry 54 dated 21. 03. 1977 whichwas a trial date, the 2nd Defendant stated to Court that he was
not ready for trial and obtained a date on payment of costs. Onthat day the following journal Entry appears on record
On a perusal of the above Journal Entries it is not clear onwhose instance the lis pendens has been registered for the 3rdtime.
Thereafter the case was fixed for trial and judgment wasdelivered on 11. 09. 1978 which judgment was subsequentlyset aside on an appeal made to the Court of Appeal.
Thereafter the case was fixed for trial again and thejudgment was delivered on 06. 12. 1988 against which thisrevision application had been filed.
On a perusal of the above Journal Entries and thedocuments of the photo stat copy of the case record, it is notclear whether the 2nd Defendant had taken the necessary stepsto register the lis pendens inaccordance with Section 19(l)(b)of the Partition law. The Journal Entry 54 dated 21. 03. 1977does not indicate whether the application to register the lispendens was made by the 2nd Defendant or whether it was
Thereafter according to the Journal Entiy 65 dated 08. 12.1977 the lis pendens has been registered under B 199/82.Journal Entry 65 is as follows:
Soysa v. Silva and Others (Jayawickrama, J.)
another application to get the lis pendens registered correctlyas it was done earlier by the Plaintiff.
It is to be noted here that the lis pendens was earlierregistered on the application of the Plaintiff under No. (B) 159/209 whereas on 08. 12. 1977 the lis pendens had beenregistered under (B) 199/82.
Even if one is to assume that the registration of .thelis pendens under B 199/82 was made by 2nd Defendant-Respondent for the larger land it is manifestly clear that therest of the provision of section 19(2) & (3) have not beenadhered to by the 2nd Defendant.
The mere registration of lis pendens alone would notentitle the 2nd Defendant to have a larger land partitionedunless he follows the procedure laid down under Section19(2)(a) to (g).
After the action is registered as the lis pendens affectingthe larger land the procedure laid down under 19( l)(b)(e)(f) and(g) has to be followed.
According to Section 19(2)(g) requirements of Section 12becomes applicable to a Defendant who seeks to have a largerland partitioned.
On a perusal of the case record I find none of the aboveprovisions have been adhered to by the 2nd Defendant.
In any event the 2nd Defendant has prayed for a dismissalof the action in his statement of claim.
In such a situation the only order which a Court couldmake is under Section 19(2)(c) and reject the claim to makea larger land partitioned. When one considers the aboveprovisions and the relevant Journal Entries in the case recordit is very clear that the learned District Judge had erred in lawby directing that a larger land be partitioned.
Sri Lanka Law Reports
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It is to be noted at this state that the learned District Judgehas disbelieved the evidence of the 1st Plaintiff and he hasconcluded that the 1st Plaintiff was not able to identify thecorpus to a certainty.
On a perusal of the evidence led in this case the lsl Plaintiffinitially has stated that the corpus should be only lot (A) butsubsequently, he has stated that lot (C) should be included,whereas the 3rd Defendant contested this position of thePlaintiff and has stated that lot (B) & (C) should be excludedfrom the corpus and only lot (A) should be partitioned.
Further it is to be noted that in answering issue No. 2, thelearned District Judge had decided that the 2nd Defendant hasprescribed to his rights but he has not indicated to what extentof the corpus he has prescribed.
For the aforesaid reasons I hold that the error in notfollowing the provision of Section 19(1) of the Partition Lawamounts to an illegality. Hence I cannot agree with thecontention of the learned counsel for the 2A Defendant-Respondent that the error is in relation to a question of fact.
For the above reasons we set aside the judgment of thelearned District Judge of Balapitiya dated 06.12.1998, and wetherefore dismiss the plaint of the Plaintiff as he has not provedand identified the corpus which is sought to be partitioned. Wealso dismiss the claim of the 2nd Defendant to have a larger landbe partitioned.
Application for revision is allowed.
We make no order as to costs.
J.A.N. DE SELVA, J. – I agree.