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are duly registered in the proper Folio No. 1280/142 at the landregistry or whether there are other deeds duly registered in theproper folio pertaining to the same land. In other words the learnedtrial judge had merely acted as a rubber stamp without discharginghis burden under the Partition Law in properly investigating title. Insuch situations, it may be gainsaid, the conduct of the learned trialjudge unknowingly contributes to the perpetrating of a fraud byparties acting in collusion.
In Kularatne v Ariyasend1°) it was held that “The duty of a Judgein a partition action is to ascertain who the actual owners of the landare and it is an imperative duty of the court to fully investigate anddecide on the title of each party to the action on evidence and not onany admissions."
In Galagoda v MohideerP1) it was held that “the Court should notenter a decree in a partition action unless it is perfectly satisfied that thepersons in whose favour it makes the decree are entitled to theproperty."
In Sumanawathie and another v Andreas and otherd12) it hasbeen further held that “On an appeal in a partition action, if it appearsto the Court of Appeal that the investigation of title has been defectiveit should set aside the decree and make an order for properinvestigation."
Further, G.P.S. De Silva, CJ in Gnanapandithan and another vBalanayagam and another held that, “There was a total want ofinvestigation of title. The circumstances were strongly indicative of acollusive action. In the result, there was a miscarriage of justice in thecase, and the appellants were entitled to a revision of the judgmentof the District Judge notwithstanding delay in seeking relief."
On the strength of the above authorities it is evident that the trialjudge failed to discharge his paramount duty to investigate the titleproperly before making his order which has occasioned a failure ofjustice to the detriment of the petitioners. The following matters haveescaped the scrutiny of the trial judge.
Though the plaint in the partition action (marked B) speaks ofthe 1 st defendant-respondent acquiring ownership by way ofinheritance, the learned trial judge had failed to investigatethis aspect.
Velun Singho and another v Suppiah and others
(§arath de Abrew. JA;
The respondents have failed to establish that they were inpossession from 1960 by cogent evidence other than throughan admission on the part of the plaintiff-respondent whilegiving evidence. The respondents have also failed toestablish possession adverse to that of any person holdinglegal title to the land.
Though the respondents claim that they were in possessionfrom 1960, the extract of plan No. 865/1961 of LicensedSurveyor Dias Abeygunawardane had been prepared only on12.02.1980, while the deed of declaration executed only on22.02.1990, and finally the partition action filed only on
Therefore for the foregoing reasons and on the strength of theauthorities cited above, I uphold the main contentions raised by thepetitioners in that –
The respondents were party to fraud and collusion inobtaining the impugned partition decree.
The total failure by the trial judge to investigate title vitiates thefinality of the partition decree.
I am also satisfied that the above two ingredients haveoccasioned a failure of justice to the detriment of the petitioners, inwhich event they are entitled to relief by way of revision.
The next question to be examined is whether the petitioners aredisqualified in obtaining this relief due to laches and undue delay. The1st petitioner has obtained legal title to the land in suit by deed No.2160 dated 12.09.84. According to him he has permitted therespondents to continue in occupation and has periodically visitedthe land. He had not observed anything amiss until 17.08.93 whenhe saw a fence erected obstructing his ingress. Thereafter the 1stpetitioner made a complaint at the Mount Lavinia police station andfiled a section 66 application (Case No. 34567) in M.C. Mt. Laviniaforthwith. During the course of this inquiry, the respondents hadproduced the impugned partition decree which the petitioners hadthen become aware of for the first time. The section 66 caseculminated on 04.05.09 and as the order was adverse to thepetitioners, they filed this revision application in this court on
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08.12.99, around 07 months later. The final decree in the D.C. Mt.Lavinia Case No.19/93/P had been entered on 17.04.96. Thereforethe revision application to set aside this decree has been filed around3 years and 07 months later. The circumstances which led to thisdelay are explained in the pleadings submitted by the petitioners.During this period, once they become aware of the actions of therespondents, the petitioners have not displayed inaction over theirrights but have filed a police complaint and a section 66 case andawaited its outcome before invoking the revisionary powers of thiscourt. Therefore the facts and circumstances of this case do notpreclude the petitioners right to relief by way of revision due to lacheshaving regard to the exceptional circumstances that have surfaced inthis case which has occasional a failure of justice.
In this context, it is appropriate to quote from His Lordship formerChief Justice G.P.S. De Silva, CJ in the case of Gnanapandithan vBalanayagam (supra) where he held
"The question whether delay is fatal to an application in revisiondepends on the facts and circumstances of the case. Havingregard to the very special and exceptional circumstances of thecase, the appellants were entitled to the exercise of therevisionary parties of the Court of Appeal."
Therefore for the foregoing reasons, I reject the contention of therespondents with regard to laches and undue delay and hold that thepetitioners are entitled to relief by way of revision.
The petitioners have lost their opportunity to appeal against theimpugned partition decree for no fault of theirs. A separate case fordamages under section 49 of the Partition Law is now not possibleas more than 05 years have elapsed since the entering of the finaldecree, in view of section 22 of Partition (Amendment) Act No. 17 of1997. Therefore injustice will result unless the extraordinary powersof revision are exercised to avoid miscarriage of justice.
Therefore, acting in revision I make order setting aside thejudgment and other proceedings, interlocutory Decree and the FinalDecree in District Court Mt. Lavinia Case No. 19/93 Partition asprayed for in sub-paragraph (1) of the prayer to the petition. I makefurther order directing the learned District Judge of Mount Lavinia tocommence partition proceedings de novo on the plaint filed by the
Velurt Singho and another v Suppiah and others
(Sarath de Abrew. J.)
respondents while allowing the petitioners too to intervene in theaction and file their statement of claims and thereafter fullyinvestigate title and make an order and enter interlocutory decreeand final decree according to law in compliance with the provisionsof the Partition Law. On a consideration of all the circumstances ofthis case I award costs in sum of Rs. 25,000/- to the petitioners.
Accordingly Application is allowed.
EKANAYAKE, J. – I agree.
Application allowed.
Trial de novo ordered.
Editors Note:
Special leave to appeal No. SC Spl. LA 158/2007 to the Supreme Courtwas refused by the Supreme Court on 6.9.2007.