Sri Lanka Law Reports
 1 Sri L.R
ARGEEN AND OTHERSCOURT OF APPEALWEERASURIYA, J. (P/CA) ANDDISSANAYAKE, J.
C.A. 1021/93/FJULY 11, 2001AUGUST 13, ANDSEPTEMBER 13, 2001
Partition Law, No. 21 of 1997 – Settlement – Validity – Can the parties com-promise their dispute? – Investigation of title – Consensus ad idem – CivilProcedure Code, sections 91 and 408 – Strict compliance.
It is possible for the parties to a partition action to compromise their dis-putes provided that the court has investigated the title of each party andsatisfied itself as to their respective rights.
Any settlement or compromise must be in strict compliance with sec-tions 91 and 408 of the Civil Procedure Code.
It is the obligation of the trial Judge to investigate title first and havingbeen satisfied that the parties before it alone have interests in the landand thereafter allow the parties to compromise their dispute.
It is necessary to observe that the respective shares or interests givento each party is based on the compromise reached and not on theexamination of the title.
If the compromise was lacking in precision and did not strictly conformto sections 91 and 408 of the Civil Procedure Code and it leads to con-fusion and uncertainty, any decree entered on it could be attacked onthe ground of want of mutuality.
APPEAL from the judgment of the District Court of Kandy.
Cases referred to:
Kurmarihamy v Weeragama – 43 NLR 265
Rosalin v Mary Hamy- (1994) 2 Sri LR 262
Babyhamine v Jamis – 46 CLW 5
Faleel v Argeen and others
Dr. Jayantha Almeida de Gunaratne for plaintiff-appellantNizam Kariapper for 1st, 2nd and 4th defendant-respondentsDaya Guruge for 3rd defendant-respondent.
November 9, 2001
WEERASURIYA, J. (P/CA)The plaintiff-appellant instituted this action to partition the landcalled Dummannagehena alias Watta morefully described in theschedule to the plaint and depicted in preliminary plan bearing No.116, dated 01.06.1990, drawn by licensed surveyor W.H.E.Uduwawela produced at the trial marked X.
The defendant-respondents in their respective statements ofclaim disputed the claim of the plaintiff-appellant for 110/196 undi-vided rights to this land.
When the trial was taken up on 21.01.1992, parties arrived ata settlement and on that basis the evidence of the 1 st defendantwas led. Learned District Judge by his judgment dated 29.10.1992,alloted rights to the parties in the following manner:-
1st and 2nd defendants3rd defendant3rd and 4th defendants6th defendant4th defendant
Lot 3 and 5.6 perches from lot 1
Lot 1 and lot 4 less 56 perches from lot 1
Lot 7 in common
Lot 2Lot 5
The present appeal is against the aforesaid judgment.
At the hearing of this appeal, learned counsel for the plaintiff- 20appellant submitted that learned District Judge has misdirectedhimself in holding that no injustice would be caused to the partiesby the purported settlement.
Learned counsel for the 3rd defendant-respondent submittedthat the plaintiff-appellant is not entitled to recite from the settle-ment arrived at by the parties on 21.10.1992.
Learned counsel for the 1st, 2nd and 4th defendant-respon-dents submitted that the plaintiff-appellant is not entitled to chal-lenge the validity of the judgment.
Sri Lanka Law Reports
(2004) 1 Sri L.R
At the outset, it is necessary to state that on 21.10.1992, par-ties had indicated to court that the disputes relating to the shareentitlement have been settled. The terms of the purported settle-ment appear to be as follows:-
that the parties have resolved their disputes in regard tothe shares inter se:
that although it is later stated in the deed by agreement,the parties desire to have allotments as shown in prelim-inary plan 116;
that in addition to lot 3 which the plaintiff-appellant ispresently in possession, the 1st defendant-respondentwould agree to give him 5.6 perches from lot 1;
that accordingly parties agree to give plaintiff-appellant5.6 perches from lot 1 in addition to lot 3.
Learned counsel appearing for the plaintiff-appellant con-tended that on the basis of this purported settlement, the 1 st defen-dant-respondent has agreed to give 5.6. perches from lot 1 to theplaintiff-appellant to tag on to her lot 3 which she was already inpossession. Therefore, learned counsel for the plaintiff-appellantcontended that the plaintiff-appellant could have got from one pointof the corpus 56 perches for her to continue in possession, insteadof 50.4 perches in lot 3 which she was in possession. It was con-tended further, that the plaintiff-appellant has not agreed to the tak-ing of 5.6 perches from lot 1, in addition to lot 3 which she was inpossession, in lieu of her entitlement from deed bearing No. 589,dated 17.09.1986, attested by M.S.M. Hussain N.P. (marked P7).
Learned trial judge in his judgment, has stated that there is noreason for him not to accept the settlement reached and the evi-dence led. He stated further that no injustice would be caused toany party by the said settlement.
It is possible for the parties to a partition action to compromisetheir dispute provided that the court has investigated the title ofeach party and satisfied itself as to their respective rights. However,any settlement or compromise must be in strict compliance with theprovisions of sections 91 and 408 of the Civil Procedure Code.
It was held in Kumarihamyv Weeragama(1> that –
Faleel v Argeen and others
“An agreement, which is entered into in a partition action,affecting only the rights of parties inter se, and which isexpressly made subject to the court being satisfied thatall parties entitled to interests in the land are before it andare solely entitled to it, is binding on the parties and is notobnoxious to the Partition Ordinance.”
The following observations at page 269 are highly relevant onthis question.
“What we now decide is that, when the court is invited toinvestigate title and, having done so and having been sat-isfied that the parties before it alone have interests in theland to be partitioned, thereafter to allow the parties tocompromise their dispute, there is nothing to prevent thecourt allowing this to be done, and once it is allowed theparties are bound by their agreement."
Therefore, it is obligatory on the District Judge to investigatetitle first and having being satisfied that the parties before it alonehave interests in the land and thereafter allow the parties to com-promise their dispute.
In Rosaiin v Mary Ham/2) it was held that when an agreementis entered into, the Court has to be satisfied only as to whether theagreement is between the parties having interests in the landsought to be partitioned.
In the event of such agreement, the respective shares or inter-ests to be given to each party is based upon the compromise thatis reached and not on an examination of title.
Therefore, the principle laid down in Kumarihamy vWeeragama (supra) which was a full bench decision, has to bereiterated, namely that after investigation of title and having beingsatisfied that the parties before it alone have interests in the land tobe partitioned there is nothing to prevent the court allowing partiesto compromise their dispute.
However, it is necessary to observe that the respective sharesor interests given to each party is based on the compromisereached and not on the examination of the title.
Sri Lanka Law Reports
 1 Sri L.R
In Babyhamine v Jamisfi) points in dispute in the partitionaction were settled among the parties before evidence was led andinterlocutory decree was entered to give effect to the settlement butthe compromise was lacking in precision and did not strictly con-form to sections 91 and 408 of the Civil Procedure Code. The com-promise was in fact calculated to lead to confusion and uncertaintyand any decree entered on it could be attacked on the ground ofwant of mutuality.
It was held that the Supreme Court will not go into the ques-
tion whether there was consensus ad idem between the parties tothat settlement and if so what was in their minds. It was further heldthat in the interests of justice the purported settlement and thejudgement entered upon on the basis of that settlement should beset aside.
In the present case, learned District Judge has not satisfiedhimself that all the parties who had interests in the case werebefore him. It is to be observed that in the plaint the 5th defendant-respondent has been allotted an extent of land 38 x 58 feet.However, evidence has not been led as to how his rights were tobe allotted. The 6th defendant in respect of whom no share hasbeen given, was declared entitled to lot 2.
In this settlement, the plaintiff-appellant has not agreed that inlieu of her undivided rights in terms of deed P7 she would consentto accept lot 3 and 5.6. perches from lot 1
The 1st defendant has agreed to give 5.6 perches from lot 3he was in possession to the plaintiff-respondent.
Therefore, there was absence of precision in regard to theconditions and an element of uncertainty pervaded the purportedcompromise which affected the rights of the plaintiff-appellant.
For the above reasons, I would set aside the judgment of theDistrict Judge dated 26.10.1992. However, I make no order as tocosts.
This appeal is allowed.
DISSANAYAKE, J. – I agree.
FALEEL v. ARGEEN AND OTHERS’