It has to be observed that the learned Judge in his judgment has arrivedupon the finding (at page 311) that the corpus is the land depicted as lotNo. 1 in preliminary plan X. The Learned Judge has stated to the followingeffect at pages 310 and 311 of the brief:
Dias vs Yasatilaka and Others ( Chandra Ekanayake, J.)
land of that extent. The surveyor, however, surveyed a land of only 2 Acresand 3 Roods. Interlocutory decree was also entered in respect of a land 2Acres and 3 Roods in extent without any question being raised by any ofthe parties as to the wide discrepancy between the extent given in theplaint and that shown in the plan made by the surveyor. None of thedefendants had averred under section 23(1) of the Partition Act that only aportion of the land described in the plaint should be made the subjectmatter of the action. It was held inter-alia that the Court acted wrongly inproceeding to trial in respect of what appeared to be a portion only of theland described in the plaint”. In the instant case too the learned Judge hasproceeded to trial having determined the corpus as lot 1 in preliminaryplan x which being a land less in extent to what was described as theland proposed to be partitioned in paragraph 2 of the plaint. This alsobecomes a cardinal error committed by the learned Judge in ordering apartition in respect of the land depicted in plan x.
For the above reasons my considered view is that the impugned judgmentcannot be allowed to stand, and the same has to be set aside. Further Iconclude that the above grounds are sufficient to dismiss Plaintiffs action.The need does not arise to consider the merits of the 3rd Defendant’sprescriptive claim.
Accordingly, the appeal is allowed with costs fixed at Rs. 10,000. Thejudgment of the learned Judge dated 05.11.1992 is hereby set aside andthe Plaintiff’s action is dismissed with costs. The Learned Additional DistrictJudge is directed to enter decree accordingly.
Sri Lanka Law Reports
(2005) 3 Sri L. R.
The Registrar of this Court is directed to forward the record in Case No.9396/P to the respective District Court forthwith.
ANDREW SOMAWANSA, J(P/CA)-1 agree,Appeal Allowed.
Plaintiffs action dismissed.