Karunaratne Banda vs. Dasanayake
KARUNARATNE BANDAVS.DASANAYAKECOURT OF APPEALBALAPATABENDI, J.
DC KANDY 12461/P.
JUNE 15, 17, 2005.
FEBRUARY 8, 2006.
Partition Law 21 of 1977-Section 25 – Investigation of Title-Court has to safeguardthe interests of others who are not parties? – Paramount duty cast on Court?
Sri Lanka Law Reports
(2006) 2 Sri L. R.
The plaintiff – respondent instituted action to partition a land in extent 2 acres,but depicted in the Preliminary Plan as containing an extent of 6 acres. Theplaintiff – respondent claimed 1/3 share of the land in extent 6 acres, makinguse of title deeds, though the share of the land he is entitled to was describedas 1/3 share of 2 acres. There was no contest regarding the pedigree. The trialJudge granted the shares as claimed by the plaintiff – respondent. The 6thdefendant appealed.
The trial judge had completely failed to examine the title and satisfyhimself that the plaintiff – respondent has made out a title to the share ofthe land he claimed from the land sought to be partitioned.
A partition suit is not a mere proceeding inter – parties to be settled ofconsent or by the opinion of the Court upon such points as they chooseto submit to it in the shape of issues.
The Court has to safeguard the interests of others who are notparties to the suit, who will be bound by the decree.
The Court should be satisfied that the plaintiff has made out his title tothe share claimed by him.
In the instant case, the plaintiff – respondent has failed to prove his titleto the land to be partitioned whether he is entitled to a share of 1/3 of 6Acres or 1/3 of 2 Acres.
APPEAL from the District Court of Kandy.
Cases referred to :
Mather vs. Thamotharam Pillai – 6 NLR 246
Peiris vs Perera -1 NLR 362
Gnanapandithen and Another vs. Balanayagam and Another- 1998 1Sri LR 391
Manoj Sanjeewa with Roshan Dayaratne for 6th defendant – appellant.
A. A. de Silva PC with Iresha Samaraweera for plaintiff – respondent.
Karunaratne Banda vs. Dasanayake (Jagath Balapatabendi, J.)
JAGATH BALAPATABENDI, J.The Plaintiff – Respondent instituted this action to partition the landcalled “Dambagahawelahena” of 3 amunas in extent, morefully describedin the schedule to the Plaint, and depicted in the Preliminary Plan No.5075 dated 02.10.1990 made by the Licensed Surveyor R. W. M.Weerakoon (marked as x) consisting of Lots 1,2,3, and 4; total extent of6 Acres 1 rood and 4.6 perches.
The 6th Defendant – Appellant being the only contesting defendanthad filed his original statement of claim stating that the said Lot 4 in thePreliminary Plan No. 5075 is shown as Lots 2 and 3 of the Plan No. 223dated 23.08.1970 made by Licensed Surveyor A. B. Kiridena and movedCourt to get the said Lot 4 of the Plan 5075 superimposed on Lots 2 and3 of the Plan No.223, as the said Lot 4 of the Plan No.5075 is not a partof the corpus and it should be excluded from the corpus.
The licensed surveyor Mawalagedera had superimposed the said Planand it was revealed that the Lot 4 of the Plan No. 5075 does not fall withinthe Lots 2 and 3 of the Plan 223 as shown in the Plan No.992(6V1) and inthe Report marked (6V1 a). Thereafter the 6th Defendant – Appellant hadfiled an amended statement of claim on 20.05.1997 stating that he hadbeen in possession of the said Lot 4 for more than 10 years and hadacquired prescriptive title to the said Lot 4, thus prayed for an exclusion ofthe said Lot 4 from the corpus.
After trial the learned trial judge held with the Plaintiff – Respondent andrejected the claim made by the 6th Defendant – Appellant.
At the hearing of the appeal the main ground urged (among othergrounds) by the 6th Defendant – Appellant in his written submissions wasthat the learned District Judge had totally failed to investigate the title set-up by the Plaintiff – Respondent as regards the corpus described in thetitle deeds marked and produced at the trial.
It was alleged by the 6th Defendant – Appellant that though the Plaintdescribed the corpus as a land in extent of 3 ammunam, all the title deedsmarked and produced (P1 to P7) by the Plaintiff – Respondent at the trial
Sri Lanka Law Reports
(2006) 2 Sri L ft
to establish the title to the corpus, described the corpus as a land inextent of only one ammunam. Hence the Plaintiff – Respondent havingproduced title deeds (P1 to P 7) relating to a land in extent of one ammunam/(2 acres) had sought to partition a land in extent of 3 ammunam(6 acres).Further, the Plaintiff – Respondent had claimed a 1/3 share of the land inextent of 3 ammunam paddy sowing, making use of title deeds (P1 to P7)where the share of the land he is entitled to is described as 1/3 share ofone ammunam of paddy sowing. Thus, the Plaintiff – Respondent cannotclaim much more than he is entitled to as described in the schedules ofthe title deeds (P1 to P7).
The 6th Defendant – Appellant further alleged that the land described inthe title deeds P1 to P7 is a separate and defined land, separately registeredin the Land Registry, as revealed in the title deeds marked and producedas P1 to P 7. The prior registration and the present registration mentionedin the said deeds are completely different from the folios where theLispendence has been registered viz: B 218/298 or B 89/249. (A detailedstatement of registration, with the folios of the said deeds (P1 and P7) isgiven at page 4 of the written submissions filed by the Counsel of the 6thDefendant- Appellant). Therefore, the Counsel of the 6th Defendant -Appellant submitted that the learned District Judge had totally failed toinvestigate the title, merely because there was no contest regarding thepedigree by the parties at the trial.
It is also alleged that the existence of two different registrations inrespect of a land in extent of 3 ammunam/(6 acres) as shown in theschedule to the Plaint and a land in extent of one ammunam (2 acres) asshown in the schedules of the title deeds (P 1 to P 7) have not beenexplained by the Plaintiff-Respondent in his evidence at the trial or in hiswritten submissions filed.
The contention of the Counsel for the Plaintiff – Respondent was thatsince Northern, Eastern and Southern boundaries of the corpus tally withthe title deeds marked and produced as P1 to P7 the corpus has beenproperly identified. Hence the findings of the learned District Judge wascorrect.
In reply to the above mentioned contention of the Counsel for the Plaintiff- Respondent, the Counsel for the 6th Defendant – Appellant submitted thatmere appearance to tally the three boundaries of the corpus cannot beconsidered as proper identification of the corpus for the following reasons:
Karunaratne Banda vs. Dasanayake (Jagath Balapatabendi, J.)
The extent of the corpus mentioned in the schedule to the Plaintis different to that of the extent of the land mentioned in the titledeeds P1 to P7.
There is a considerable difference in extents between the landsought to be partitioned viz. 3 ammunam (6 acres) and the landdescribed in title deeds P1 to P7 viz. I ammunam (2 acres).
The Lispendens of the partition action has been registered in adifferent folio to that of the title deeds P 1 to P 7. (it is not a casewhere the Lispendens had been registered in a wrong folio).
In view of the above reasons the title deeds marked and producedas P1 to P7 do not establish title to the land depicted in thePreliminary Plan, or the land described in the Schedule to thePlaint.
Now I would like to deal with the law relevant to the above mentionedissue.
Section 25 of the Partition Law No.21 of 1977 imposes on the Court thenecessity and the obligation to “examine the title of each party” and “shallhear and receive evidence in support thereof.”
In the case of Mather vs. Thamotharam PiHaiit was held that “a partitionsuit is not a mere proceeding inter-parties, to be settled of consent, or bythe opinion of the Court upon such points as they choose to submit to it inthe shape of issues. It is a matter in which Court must satisfy itself thatthe Plaintiff has made out his title, and unless he makes out his title hissuit for partition must be dismissed.”
In the case of Peiris vs. Perera(2) the Supreme Court held that “theCourt should not regard a partition suit as one to be decided merely onissues raised by and between the parties, and it ought not to make adecree, unless it is perfectly satisfied that the persons in whose favour thedecree is asked for are entitled to the property sought to be partitioned.After the Court is satisfied that the Plaintiff has made out his title tothe share claimed by him”
Sri Lanka Law Reports
(2CCS) 2 Sri L. R
In the case of Gnanapandithen and Another js. Balanayagam andAnother® G. P. S. de Silva C. J. observed that “It seems to me that this isnot a case where the investigation of title by the trial judge was merelyinadequate. In my opinion there was total want of investigation of title.Mr. S'amarasekera cited several decisions which have, over the years,emphasized the paramount duty cast on the court by the statute itself toinvestigate title. It is unnecessary to repeat those decisions here. For thepresent purpose it would be sufficient to refer to the case of Mather v.Thamotharam Pillai (supra) decided as far back as 1903, where Layard,C.J. stated the principle in the following terms“Now, the question to bedecided in a partition suit is not merely matters between parties whichmay be decided in a civil action,:.. The court has not only to decide thematters in which the parties are in dispute but to safeguard the interest ofothers who are not parties to the suit, who will be bound by a decree forpartition “Layard, C.J. stressed the importance of the duty cast on theCourt to satisfy itself “that the plaintiff has made out a title to the landsought to be partitioned, and that the parties before the court are thosesolely entitled to such land.” (emphasis added.) This the trial judge in thecase before us completely failed to do. On a consideration of all the mattersset out above I am satisfied that a miscarriage of justice has actuallyoccurred in the present case. The Court of Appeal has not addresseditself to these relevant matters which vitiate the judgment and theinterlocutory decree based thereon.”
In the instant case the Plaintiff – Respondent has failed to prove his titleto the land sought to be partitioned whether he is entitled to a share of1/3 of 3 ammunam/(6 acres) as depicted in the Preliminary Plan or ashare of 1/3 of one ammunam (2 acres) as asserted by the Plantiff-Respondent on the title deeds P1 to P7.
For the reasons mentioned above I agree with the contention of theCounsel for the 6th Defendant-Appellant that the Learned District Jusgehad completely failed to “examine the title” and satisfy himselfthat the Plantiff – Respondent has made out a title to the share ofthe land he claimed from the land sought to be partitioned.
In the above mentioned circumstances I set aside the judgment, theinterlocutory decree entered and dismiss the action of the Plaintiff-Respondent with costs of Rs.5000.
BASNAYAKE, J. – / agree.
KARUNARATNE BANDA vs. DASANAYAKE