COURT OF APPEALEDUSSURIYA, J. (P/CA)
C. KEGALLE 19789/PAPRIL 27. 1999
Partition Law 21 of 1977 – S.66, S.67 – Transfer of Right. Title andinterest pending Partition Action – Can the transferee be added? Shouldthe transferee be allotted shares In the Judgment.
Though the 3rd Defendant – Respondent had transferred his right,title and interest to the 3rd, 23rd and 24th Defendants (Appellants) theyhad no right or status to be added as a party.
They cannot be awarded undivided rights by the judgement and theinterlocutory decree.
APPEAL from the judgement of the District Court of Kegalle.
N. R. M. Daluwatte, P.C., with Gamlnl Silva for the 23rd and 24thDefendant – Appellants.
S. C. B. Walgampaya with W. A. N. Jayanath and S. A. D. S. Suraweerafor the Plaintiff – Respondent.
Cur. adv. vult.
June 11, 1999.
EDUSSURIYA, J. (P/CA)This appeal has been filed from the Judgment of the learnedDistrict Judge of Kegalle in an action instituted by the Plaintiff -Respondent to partition the land called Galpottehena describedin the schedule to the plaint and depicted in Plan 2136 (X)dated 21st May 1973, made by K. Kapugeekiyana, LicensedSurveyor.
Abeyratne v. Rosalln
(Edussurlya, J. PICA)
It is common ground that the Appellants had after theinstitution of this action purchased on deed 24D1 contingentrights, namely, the lot that may be allotted to the 3rd Defendantby the Final Decree in this action. So that, clearly the Appellantshad no interest whatsoever in the corpus and as such had noright or status to be added as parties under Section 67 of thePartition Law. Not only were the Appellants added as the 23rdand 24th Defendants but were also awarded, undivided rightsby the Judgment and the interlocutory decree, inspite of themanner in which issues 5, 6 and 18 were raised by Counsel forthe 3rd, 23rd and 24th Defendants at the trial. Counsel for the3rd, 23rd and 24th Defendants quite correctly only claimed rightson behalf of the 3rd Defendant.
Although by deed 24D1 the 3rd Defendant has sold andconveyed "All my right title and interest or whatever share or lotthat will be allotted to me in the District Court, Kegalle partition
Case No. 19789", this deed is only valid to convey the lot
that will be allotted to the 3rd Defendant vendor, in view of theseveral decisions of this Court and the former Supreme Courtwhich dealt with the effect of Section 17 of the PartitionOrdinance, Section 67 (2) of the Partition Act of 1951 andSection 66 of the Partition Law of 1971.
Therefore, that part of the Judgment and interlocutorydecree awarding undivided shares to the 23rd and 24,hDefendants must necessarily be set aside and those sharesawarded by the Judgment and interlocutory decree to the 23rdand 24th Defendants must be awarded to the 3rd Defendant.
This would result in the Appellants appeal being dismissed.
Counsel for the Appellants contended that the Appellantshave a right to maintain this appeal as the Plaintiff – Respondentdid not object to their being added as parties or to theirparticipating at the trial, and also because the 3rd Defendant isno longer interested as he was not allotted any rights by theJudgment and interlocutory decree.
Sri Lanka Law Reports
120011 3 Sri L.R.
However, as I have hereinbefore mentioned the Appellantsquite rightly claimed no rights at the trial. The Appellants andthe 3rd Defendant were represented by the same counsel andissues 5,6 and 18 were all raised on behalf of the 3rd Defendant.Therefore when the District Judge awarded undivided sharesto the Appellants, an appeal should have been filed in the nameof the 3rd Defendant. Therefore, Appellants 'Counsels' contentionis not tenable. I will next consider the appeal on merit.assumingthat the Appellants are entitled to maintain this appeal.
Counsel for the Appellants urged, firstly, Uiat the Appellantspredecessor in title had possessed a portion of the corpusdepicted in Plan X as a separate land on the basis of Plan 3D5and acquired prescriptive title to the said portion. Even Plan3D5 sets out that it is a Plan of allotments of land calledGalpottehena and Nagahahena Watte. However, that Plan 3D5was not superimposed on Plan X to show the portion of thecorpus which the Appellants claim by prescription. Counsel forthe Appellants conceded that this was not infirmity in their case.
In any event, although evidence of a same may have beenled at the trial, the question of prescription was not put in issueat the trial.
What was put in issue by issue No. 18 was that the 3rtlDefendant and his predecessor in title had acquired prescriptivetitle to the entire corpus.
The Appellants cannot succeed in their claim of prescriptivetitle to the entirety in as much as their predecessor in title wasa co – owner and there is no evidence of an overt act of ouster.
These were the only matters urged at the hearing of thisappeal.
Therefore, the appellants cannot succeed even on merit.
This Court sets aside (1) the answer to issue No. 6 andanswers it in the affirmative, (2) that part of the Judgment
Abeyratne v. Rosalln
(Edussuriya, J. PICA)
awarding 250/3360 shares to the 23rd and 24th Defendants andawards the same to the 3rd Defendant, (3) that part of theJudgment awarding the Rubber Plantation on lot 1 in Plan X tothe 23rd and 24th Defendants and awards the same to the 3rdDefendant, (4) that part of the Judgment awarding theplantation claimed by the 12th Defendant to 23rd and 24thDefendants and awards the same to the 3rd Defendant.
The interlocutory decree is to be amended accordingly.
The appeal is dismissed with costs fixed at Rs. 5250/-.JAYASINGHE, J. I agree.
Interlocutory Decree – VariedAppeal dismissed.
ABEYRATNE v. ROSALIN