and Mukalana situated adjoining the said land as one
piece of land
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Cornells alone gave evidence on behalf of the Respondents. Thequestion that loomed large at the trial was whether Jeeris hadpossessed the land sought to be partitioned to the exclusionof Haramanis, and in particular whether the amalgamationof the said land with his other lands Indipitiya and MahakeleMukalana, and the allotment of distinct portions of theamalgamated land to Emis, Sadiris, Charlis and Sethuhamyas set out in the Plan No. 1868 dated 27th June 1940 (3DI),constituted evidence of ouster.
The learned District Judge, held with the Appellant, andin the course of her judgement dated 4th September 1998,agreed with the submissions made on behalf of the Appellantthat Jeeris or Jeeris’ heirs, who are entitled only to anundivided half share of the land, cannot prescribe to the otherundivided half share of Haramanis since a co-owner cannotin law prescribe against his other co-owner in the absence ofproof of ouster. The learned District Judge observed that –

Sopinona vs. Pitipanaamchchi And two others
(Saleem Marsoof, J)
Accordingly, the Learned District Judge answered issueNo. 1 raised by the Appellant in her favour, and refrainedfrom answering any of the other issues on the basis that theydid not arise. I quote below the final paragraph of the saidjudgment –

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Aggrieved by this decision, the 3rd and 41st Respondentsappealed to the Court of Appeal. It was submitted on behalfof the Respondents that the learned District judge had notconsidered all the documentary and other evidence ten-dered on behalf of the Respondents and had thereby failed todischarge her duty to properly investigate title. In allowing theappeal, Andrew Somawansa, J., in the course of his judgementdated 22nd November 2002 with which N. E. Dissanayake, J.concurred, noted that while 5 deeds were marked by theAppellant and 9 marked by the Respondents, the learnedDistrict Judge had considered only 4 of the said deeds.Somawansa, J. held that the learned District Judge hadseriously erred in seeking to dispose of the whole case throughhis answer to issue No. 1 his Lordship observed that –
“Here again, I am of the view that she has erred in notanswering the balance issues. For issue No. 1 is basednot only on devolution of title but also on prescription.Therefore it becomes necessary to consider and analysethe evidence to ascertain whether parties disclosed in theplaint had prescribed which the learned District Judgehas failed to do.”
Accordingly, Somawansa, J. concluded that –
“Had she answered them, this Court would be in aposition to consider her findings on the said issues.However, as she has failed to answer the rest of the issues,though with reluctance, I am compelled to set aside thejudgement of the learned District Judge and send thecase back for re-trial.”
This Court has granted special leave to appeal againstthe said judgement of the Court of Appeal on the followingquestions of law:-
Sopinona vs. Pitipanaarachchi And two others
(Saleem Marsoof, J)
“(a) Whether in law there was sufficient investigation of titleof the parties by the original court;
Whether all issues need be answered by the DistrictJudge when the answer to one issue alone sufficientlydetermines the title of the parties to the land both ondeeds and on prescription;
Whether, if the answer to a single issue, in effect is acomplete answer to all the contents in the action, whetherit is necessary and incumbent on the District Judge togive specific answers to the other issues. Specially, if inarriving at the answer to the issue the Learned DistrictJudge has considered and dealt with the matters raisedin the other issues.”
Identity of the Corpus
Before dealing with the first substantial question of lawon which special leave has been granted by this Court in thisappeal, it is necessary to deal with the question of identity ofthe land sought to be partitioned, which is a matter of vitalimportance in any partition case. Without proper identificationof the corpus it would be impossible to conduct a properinvestigation of title. As G.P.S. de Silva, J. (as he then was)emphasized in the course of his judgement in Wickremaratne
Albenis Pererai23) at 199, in a partition action, “there arecertain duties cast on the court quite apart from objectionsthat may or may be taken by the parties” and this includesthe “supervening duty to satisfy itself as to the identity ofthe corpus and also at to the title of each and every partywho claims title to it.” In Jayasooriay v UbaidP4) at 353Sansoni, J. observed that “there is no question that therewas a duty cast on the Judge to satisfy himself as to theidentity of the land sought to be partitioned, and for
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this purpose it was always open to him to call for furtherevidence in order to make a proper investigation.” This isbecause clarity in regard to the identity of the corpus isfundamental to the investigation of title in a partition case.
In this connection, it is necessary to observe that in theplaint filed in this case, the original Plaintiff Remanis soughtto partition the land described as Porikehena in extent 3 roodsand 11 perches. However, as already noted, the PreliminaryPlan No. 255 covers a much larger extent of 1 acre and16.85 perches, which is far in excess of the land described inthe schedule to the plaint and covered by the Crown GrantNo. 30258, dated 28th December 1895 (PI) from which theAppellant claims to have derived title. Despite the saiddiscrepancy in the extent of land being adverted to inparagraph 20 of the answer filed by the contesting Respon-dents, at the commencement of the trial de novo on 23rd April1992 all parties to the action admitted that the said Plandepicts the land described in the scheduled to the plaint andsought to be partitioned, and no point of contest or issue wasraised in regard to the identity of the corpus. However, whenCarolis Singho have evidence on 21s* August 1997 he spokeabout the discrepancy in the land extent, and his Counselmoved to raise two more issues in regard to the failure toproperly register lis pendens, which application was turneddown by the learned District Judge on the ground that thisaspect of the matter should have been taken up before thecommencement of the trial.
There esists a lack of clarity, even amongst each of theparties themselves, with regard to the description of thecorpus described in the schedule to the plaint as Porikehenain extent 3 roods and 11 perches by reference to Plan No.167058 dated 2nd July 1895 authenticated by D. G. Mantale,
Sopinona us. PttipanaarachM And two others
(Saleem Marsoof, J)
Surveyor General. This Plan was not produced in courtby any of the parties. It must be noted, that lots ‘A’ andTL’ of Plan No. 1868 dated 27th July 1940 and prepared byLicensed Surveyor M. D. A. Goonatilleka(3Dl) showing parts ofPorikehena which were subjected to the amicable partitionamongst Jeeris’s heirs, also add up to a extent of 3 roodsand 11 perches, and a superimposition of the said lots ‘A’and ‘E’ of the said Plan on the Preliminary Plan No. 255 dat-ed 11th October 1970 prepared by Licensed Surveyor A. P. S.Gunawardena clearly shows that the said Preliminary Plandepicts a land extent of 1 acre and 16.85 perches whichexceeds the land claimed by the Appellant as well as by theRespondents by approximately 1 rood and 5.85 perches.The Respondents, in their evidence and submissions atthe various stages of this case, have sometimes seeminglyadmitted the corpus as described in the plaint to be Porikehena,despite the aforesaid disparity, and at other times sought tochallenge this position. The parties have not shown consis-tency in this regard, and failed in their preliminary duty todescribe adequately and with clarity the corpus being thesubject matter of these proceedings.
The identity of the corpus is also a matter of fundamentalimportance in ensuring that all persons who have any claimto it to participate in the partition action, which ultimatelyconfers title in rem. The Partition Act No 16 of 1951, that wasapplicable at the time of the institution of the action in 1969,provided for the registration of lis pendens and other stepswhich had as their objective the proper investigation of title.It appears from the original record maintained in the DistrictCourt which was called for by this Court, that lis pendenswas registered in terms of Section 6 of the Partition Act on13th February 1969 in folio G 384/48 at the Land Registrywith respect to the land referred to in the schedule to the
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plaint in extent 3 roods and 11 perches. However, an exami-nation of the journal entries in the original record maintainedin the District Court in this case (from 18th April 1989, beingthe date of the reconstruction of the record after the originalrecord was destroyed by fire) did not show any evidencethat lis pendens was registered for the larger extent of landdepicted in the Preliminary Plan No. 255 in extent 1 acre and16.85 perches, and the fact that learned Counsel for CarolisSingho on 21st August 1997 sought to reuse two additionalissues in this regard suggests that in fact there was no suchregistration.
It has been expressly provided in Section 23(3) of thePartition Act of 19 51 that where a survey made on a commissionissued by court in a partition case “discloses that the landdescribed in the plaint is only a portion of a larger land whichshould have been made the subject matter of the action, thecourt shall specify the party to the action by whom, and thedate on or before which, an application for the registration ofthe action as a lis pendens affecting that larger land shall befiled in court” to enable the filling of lis pendends showing thelarger land and taking other mandatory steps under the Act,which are necessary to ensure that all interested parties arebefore court. The District Court has ordered the partitioningof the said larger portion of land depicted in Preliminary PlanNo. 255 consisting of 1 acre and 16.85 perches. Which farexceeds the land described in the schedule to the plaint, andin the absence of material to show that Section 23 of thePartition Act was complied with, raises serious doubts at tothe regularity and legality of the impugned decision of theDistrict Court in this case.
Sufficiency of Investigation of Title
The first substantial question of law on which specialleave to appeal was granted against the decision of the Court
Sopinona vs. Pitipanaarachchi And two others
(Saleem Marsoof, J)
of Appeal is whether in law there was sufficient investiga-tion of title by the original court. Learned President’s Counselfor the Appellant strenuously contended that there was, andlearned Counsel for the Respondents argued with equal forcethat there was not.
It is trite law that, in a partition suit which is institutedto bring an end to co-ownership of land through a decreewhich is binging not only on the parties to the suit but in remover the entirety of society, the dispute is not to be settledon issues alone, but on any points of interest that the courtsees fit in discharging its sacred duty for the full investiga-tion of title. As was observed by Layard, C. J. in Mather v.Thamotharam Pillai (supra) at pages 250 to 251,
“…. The question to be decided in a partition suit is notmerely matters between parties which may be decided ina civil action; the Court has to decide in every such suitmatters in respect of which the parties need not neces-sarily be in dispute and on which in this particular suitthey are not at issue, viz., that the land is held in commonby the plaintiff and defendants, and they solely have titleto the land sought to be partitioned. The Court has notonly to decide the matters in which the parties are indispute, but to safeguard the interests of others who areno parties to the suit, who will be bound by a decree forpartition made by the Court under the provisions of theOrdinance.” (Italics added)
Layard, C. J. was there interpreting the PartitionOrdinance No. 10 of 1863, which has since been repealed,but the same obligation is cast on the court by the provi-sions of the Partition Act No. 16 of 1951 which appliedat the time of institution of the action from which thisappeal arises. In fact, dicta from the judgement of Layard, C. J.
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were quoted with approval by G. P. S. de Silva, C. J. inGnanapandithen and Another v. Balanayagam and Anotherwhich was decided under the provisions of the currentlegislation on the subject, namely, the Partition Law No.21 of 1977, as subsequently amended, which replaced thePartition Act of 1951. A basic principle in all the enactmentsis that where there has been no proper investigation of title,any resulting partition decree necessarily has to be setaside.
In the context of the stringent legal provisions of therelevant legislation, learned Counsel for the Respondentsubmitted the Appellant has failed to establish that the landis held in common by the Appellant and Respondents, andthat the Respondents solely have title to the land soughtto be partitioned. He submitted that it was clear from theevidence that Haramanis never possessed Porikehena, thatJeeris and his heirs alone possessed the entirety of Porikehenaalong with the two adjoining lands called Indipitiya andMahakele Mukalana and had in fact, over the course of 30 yearsof exclusive possession, prescribed to Porikehene as againstthe said Haramanis. It was submitted by learned Counsel forthe Respondents that any instance at which Haramanis hadacted in relation to Porikehena is explicable on basis that hefunctioned as an agent of Jeeris. He explained that whenJeeris died leaving as his heirs Emis, Sadiris, Charlis andSethuhamy who continued to possess all three lands incommon, they put an end to their common ownership byamalgamating and amicably divided the said lands amongthemselves by Partition Plan No. 1868 dated 27th July 1940certified by D. A. Goonatilleka, Licenced Surveyor (3D1).Learned Counsel for the Respondents submitted that thesaid lots ‘A’ and ‘E’ were by the said Plan marked 3D1,apportioned to Charlis and Emis respectively, and that lot
Sopinona vs. Pitipanaarachchi And two others
(Saleem Marsoof, J)
‘A’ was subsequently transferred to Obies (the original 13thDefendant) whose widow Matarage Menchinona (the 41stSubstituted Defendant) now contests the Appellant’s casealong with the issue of Pitipana Arachchige Comelis (the 3rdDefendant) who it was submitted gained title to Lot *E’ fromEmis.
It was further submitted by the learned Counsel for theRespondents that the Appellant, only had title to parts of Lot T)’of Plan No. 1868 (3D1) through Sethuhamy and Sethuhamy’sson, Welapahala Arachchige Remanis, her late husbandwho was the original Plaintiff. It was his contention thatthe exclusive, undisturbed and uninterrupted possession bythe Respondents of defined and divided lots along with theother parties to the 1940 division, prior to, or at least, fromthe date of the said division, defeated through prescriptionthe co-ownership established by the initial Crown Grant. Itwas also submitted by learned Counsel for the Respondentsthat the Appellant’s case was doomed to fail as the identity ofthe corpus was in grave doubt, and additionally, as the landknown as Porikehena ceased to exist as a distinct land itsfollowing amalgamation in 1940 with Indipitiya andMahakele Mukalana. Learned Counsel for the Respondentstressed that the Appellant is legally bound by this division asSethuhamy, the mother of Remanis, who had participatedin the division had executed Deed No. 1845 marked as 3D3,whereby she conveyed lot ‘D’ of Plan No. 1868 (3D1) toRemanis. He contended that by accepting the saidconveyance, Sethuhamy precluded herself as well as hersuccessors-in-title, from disputing the validity of 3D1.He submitted that the Appellant, who is the widow ofRemanis, by claiming title based on the said Deed No. 1845(3D3) and her own testimony in court, had admitted the saidamalgamation and division, vitiating her right to claimotherwise.
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Learned President’s Counsel for the Appellant submittedthat the original court has adequately discharged itsobligation of satisfying itself that the land described in theschedule to the plaint (1) was held in common; and (2) thattitle devolved on the parties in the manner and to the extentas set out in the plaint. He submitted that by virtue of CrownGrant No. 30258, dated 28th December 1895 (PI), PitipanaArachchige Jeeris and one Thantirige Haramanis, becameentitled to equal shares in the land sought to be partitionedcalled Porikehena, in extent 3 roods and 11 perches. Hefurther submitted that the said Haramanis and Jeeris ownedtwo lands in common, namely, Porikehena, the corpus soughtto be partitioned in the action which led to this appeal, andKirigaldeniya. It was his contention that while Jeeris lived onPorikehena and Haramanis lived on Kirigaldeniya, neither didJeeris give up his rights to Kirigaldeniya nor did Haramanisgive up his rights to Porikehena. He submitted that thisposition is evidenced by the fact that the heirs of Jeeris hadsold rights in Kirigaldeniya on Deed No. 7066 dated 15thAugust 1922 attested by D. T. S. S. Jayatilake, Notary Public(P4) to the heirs of Haramanis and that some heirs ofHaramanis had in turn sold by Deed No. 1874, dated 17thOctober 1967 (P2), rights in Porikehena to the heirs of Jeeris,including the original Plaintiff, Welapahala ArachchigeRemanis. He submitted that the District Court had examinedall relevant evidence carefully, and was justified in upholdingthe claim of the Appellant for a 21/48th share of Porikehenaunder the said purchase from the heirs of Haramanis, anda further 1 / 56th share of Porikehena under the birth right ofher deceased husband Remanis, as an heir of Jeeris. LearnedPresident’s Counsel for the Appellant emphasized that Jeerisand Haramanis, being co-owners, their undivided rightscannot be prescribed by each other, in the absence ofclear evidence of ouster or something equivalent to ouster.
Sopinona vs. PitipcuuuirachchiAnd two others
(Saleem Marsoof, J)
He relied on the decisions of our Court in Corea v. Appuhamy P61and Tillekeratne v. Bastion,{27) and also referred to the decisionin Maria Fernando and Another v. Anthony Fernando <28), inwhich at 360 Wignesweran, J. observes as follows:
“Whether ouster may be presumed from long, continued,undisturbed, and uninterrupted possession depends onall the circumstances in each case, (vide, Siyadoris v.Simon.” <28<a>)
It is a well established principle in the Roman-DutchLaw that “the possession of one co-owner is, in law, thepossession of the other,” G. L. Pieris, The Law of Property inSri Lanka Vol. 1 at p. 359. In the celebrated case of Corea v.Appuhamy (supra) the Privy Council laid down in unequivocalterms that every co-owner must be presumed to be possessingin the capacity of co-owner, and that as Lord MacNaghtenput it at 78 of his judgment –
“His possession was in law the possession of hisco-owners. It was not possible for him to put an endto that possession by any secret intention in his mind.Nothing short of ouster or something equivalent to oustercould bring about that result.”
In Tillekaratne v. Bastion (supra) a Full Bench of theSupreme Court drawing from the principles of the commonlaw in Ceylon, as it then was, and in England, from whereour Prescription Ordinance had drawn much influence,Bertram, C. J. set out that our law on prescription, both insituations arising out of co-ownership and otherwise, mustbe approached by equating the previously unknown andabstract term “ouster” to a simple question as to whether thepossession in question was or has become “adverse”. At 18 ofhis judgement, Betram, C. J. observed that –
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“What, then, is the real effect of the decision in Corea v.Appuhamy (supra) upon the interpretation of the word“adverse” with reference to cases of co-ownership? It is,as I understand it, that for the purpose of these cases theword “adverse” must, in its application to, any particularcase, be interpreted in the light of three principles oflaw:-
Every co-owner having a right to possess and enjoythe whole property and every part of it, the possessionof one co-owner in that capacity is in law the posses-sion of all.
Where the circumstances are such that a man'spossession may be referable either to an unlawfulact or to a lawful title, he is presumed to possess byirirtue of the lawful title.
A person who has entered into possession of land inone capacity is presumed to continue to possess it inthe same capacity. ”
While the first of the above principles is one of substantivelaw, the second and third principles are presumptions, andthus, principles of the law of evidence. It is the applicabilityof the third of these principles, which has been the basis ofour decisions on this difficult area of law, and must decidequestion of the ownership of Porikehena. The effect of thisprinciple is that, where any person’s possession was originallynot adverse, and he claims that it has become adverse, theonus is on him to prove it. In doing so, he is required not onlyto prove an intention on his part to possess adversely, butalso a manifestation of that intention to the true owner againstwhom he sets up his possession. Considering recent decisionssuch as Maria Fernando v. Anthony Fernando (supra),
Sopinona vs. Pttipanaarachchi And two others
(Sodeem Marsoof, J)
authorities remain prone today as they were in 1918 asobserved by Bertram, C. J., to emphasize the definite andheavy burden cast upon the assertor to prove “an overtunequivocal act.”
However, it must not be forgotten that Bertram, C. J.himself acknowledged that there can be no hard and fast rulesin this regard, and in particular, the evidentiary principlethat a person who has entered into possession of land in onecapacity is presumed to continue to possess it in the samecapacity, might become unreal or “artificial” if it is acceptedwithout qualification. In the course of his judgment inTittekaratne v. Bastian (supra) at 20 to 21 he observed that –
“presumptions of the law of evidence should be
regarded as guides to the reasoning faculty, and not asfetters upon its exercise. Otherwise, by an argumentativeprocess based upon these presumptions, we may in anyparticular case be brought to a conclusion which, thoughlogically unimpeachable, is contrary to common sense.It is the reverse of reasonable to impute a characterto a man’s possession which his whole behavior haslong repudiated. If it is found that one co-owner and hispredecessors in interest have been in possession of thewhole property for a period as far back as reasonablememory reaches; that he and they have done nothing torecognize the claims of the other co-owners; that he hadthey have taken the whole produce of the property forthemselves; and that these co-owners, have never doneanything to assert a claim to any share of the produce, itis artificial in the highest degree to say that such a personand his predecessors in interest must be presumed tobe possessing all this time in the capacity of co-owners,and that they can never be regarded as having possessed
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adversely, simply because no definite positive act can bepointed to as originating or demonstrating the adversepossession. Where it is found that presumptions of lawlead to such an artificial result, it will generally be foundthat the law itself provides a remedy for such a situationby means of counter-presumptions. If such a thing werenot possible, law would in many cases become out ofharmony with justice and good sense.”
It is evident in this dictum that not only has this Courtrecognized the strong logical underpinnings for a counter-presumption of “ouster”, but it has also laid down guidelinesunder which such a presumption may be made. With furtherreference to a line of cases beginning from the seminal judge-ment in Corea v. Appuhamy (supra), all of which have beenanalyzed in the leading decision of this Court in Gunasekerav. Tissera and Others,(29) along with numerous referencesto be found in the Roman – Dutch law authorities, the casefor declaring the principle to be part of our law was wellestablished. Accordingly, in my view it is not only legitimatebut necessary, wherever long-continued exclusive possessionby one co-owner is proved to have existed, to delve intothe question whether it is just and reasonable in all thecircumstances of the case that the parties should be treatedas though it had been proved that separate and exclusivepossession had become adverse at some point of time morethan ten years before action brought.
It is in this light that one has to consider the submissionmade with great force by the learned President’s Counsel forthe Appellant that the amicable partition said to have beeneffected by Plan No. 1868 (3D1) by the heirs of Jeeris doesnot bind Haramanis or his heirs as they were not aware ofthe said Plan, and additionally, as no Partition Deed to which
Sopinona vs. PitipanaamchchiAnd two others
(Saleem Marsoof, J)
all co-owners were parties had been entered into to give effectto the said Plan. In this context, learned President’s Counselinvited the attention of court to the following dictum ofGunasekara, J. (with Gratiaen, J. concurring) in Kobbekaduwav. Seneviratne,{30) at page 359:
“ The mere fact that one co-owner was in
occupation of the entirety of a house which is owned incommon and purported to execute deeds in respect ofthe entirety for a period of over ten years does not lead tothe presumption of an ouster in the absence of evidenceto show, that the other co-owners had knowledge of thetransactions.”
In my opinion, while the question whether Haramanisand his heirs were aware of the partition effected by PlanNo. 1868 (3D1) is most material, an important considerationthat might affect the rights of the co-owners to the land iswhether they acquiesced in the division effected thereby fora period of more than 10 years after it was implemented. AsM. D. H. Fernando, J. in Gunasekera v. Tissera and Others(supra) observed at 258 –
“If the division is not by all the co-owners, but is based ona plan prepared by one co-owner without the knowledgeof the other co-owners, his possession of dividedallotment is not adverse (Ithohamy v. Karanagoda,{3i])but prescriptive title can be acquired by virtue ofpossession for such a period and in such circumstancesthat the counter presumption applies”
It appears from the evidence led by the parties thatHaramanis and Jeeris owned two lands in common, namely,Porikehena, the corpus sought to be partitioned in theaction which led to this appeal, and Kirigaldeniya which was
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situated about half a mile away from Porikehena. The versionof the Respondent’ that there existed an arrangement betweenHaramanis and Jeeris for the former to hold Kirigaldeniyaand the latter to possess Porikehena exclusively, if accepted,would explain the logic behind the amicable partition allegedto have been effected in 1940 through Plan No. 1868 (3D1)whereby Porikehena along with Indiketiya and MahakeleMukalana owned by Jeeris were put together and dividedamongst his heirs. It is clear from the evidence led by bothparties, that in 1940 when Porikehena was amalgamated withthe said two adjacent lands and divided into 5 distinct lots, asignificant de facto change in the manner of possession of theland occurred. Following the division effected in 1940, wirefences had been erected and constructions were made on thesaid lands (as depicted in Preliminary Plan No. 255) by thenew holders, which was also admitted in her testimony by theAppellant Sopinona, who stated that the two houses on theland were occupied by Menchinona, the widow of Obias, andComelis, both grandsons of Jeeris. Furthermore, the Appellant’smother-in-law, Sethuhamy, directly participated in thedivision effected by Plan No. 1868 (3D1) in 1940 and conveyed,by Deed No. 1845 (3D3) executed on 23rd February 1950, theentirety of lot D of the said Plan No. 1868 (3D1) to Remanis,the deceased husband of the Appellant.
This court cannot also ignore the fact that the testimony ofCarolis, who is the only descendant of Haramanis to testify inthis case, goes more to establish the case of the Respondent.He stated in evidence that he lived in part of Kirigaldeniya,and that he used to go to Porikehena and “Charley Mama”,who was one of Jeeris’ sons and who was in occupation of theland picked coconuts and breadfruit and gave them to him aswell as to other members of his family, acknowledging theirrights as co-owners of Porikehena. It is noted that Carolis
Sopinona vs. Pitipanaamchchi And two others
(Saleem Marsoof, J)
Although the point of time at which Carolis collected suchproduce from Porikehena was not elicited by Counsel for theAppellant, he has given a clue about the approximate date inhis answers to questions put to him in cross-examination:

It is relevant to note that at the time when Corolis testifiedin 1997 he was 72 years old, which means that he was bomin 1925, and he would have been 15 years old in 1940, theyear in which the amicable partition was effected by PlanNo. 1868 (3D1). This gives credence to the testimony ofComelis, the sole witness for the Respondents at the secondtrial, who testified that he was in possession of lot “E’ of 3D1but he did not know Carolis and that he never exercised anyrights of co-ownership over Porikehena.

It is possible to reconcile the apparent conflict in thetestimony of Carolis and Comelis on the basis of the period

stated in evidence that he went to Porikehena with his grand-
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of time during which rights of co-ownership were allegedlyexercised by the heirs of Haramanis including Corolis. Theonly conclusion that one can reasonably arrive on the basisof the testimony of these witnesses is that none of the heirsof Haramanis excercised any rights over Porikehena afterthe amalgamation of that land with two other lands and theamicable partition effected by Plan No. 1868 (3D1) in 1940.In fact, the totality of the evidence point to the fact that nonehad contested the separate possession established in 1940,and all respected the separation effected in 1940 and enteredinto various subsequent transactions on that basis.
It is important to note that the only other witness for theAppellant was Sopinona herself, who admitted in her testimonythat she knew nothing herself about the manner in whichJeeris and Haramanis exercised rights over Porikehena, nordid she know personally about the amicable partition allegedto have been effected in 1940 through Plan No. 1868 (3D1).In fact, in the course of her testimony she admitted in crossexamination that after 1940, the parties to the said Plan hadabided by the division made thereunder. She answered a vitalquestion as follows:

In the context of all this evidence, the conclusion isirresistible that land named Porikehena which was referredin the scheduled to the plaint lost its separate identity byreason of the amalgamation and partition effected by PlanNo. 1868 (PI) in 1940. It also transformed the character ofthe possession of Jeeris’s heirs from one consistent with
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(SaleemMarsoof J)
co-ownership into what we may call “adverse” possession,which is essential for the acquisition of prescriptive title.By 1950, such possession had crystallized into ownership,which made it lawful for Sethuhamy to covey lot D of 3D1to Remanis by Deed No. 1845 (3D3) in 1950. Further-more, it is important to note that the heirs of Jeeris andHaramanis, who live not too far apart mainly in Porikehenaand Kirigaldeniya respectively, have refrained from assertingrights of co-ownership in relation to the land held by theother, be it Porikehena or Kirigaldeniya, for a long time untilcoaxed into action by Remanis, who in 1967, perhaps as aprelude to the institution of this partition action, purportedto buy from certain heirs of Haramanis rights in Porikehenaunder Deed No. 1874 (P2) in October 1967. It has to beobserved that these heirs of Haramanis had themselvesacquiesced in the division that had been effected by PlanNo. 1868 (PI) in 1940, and the said division has remainedsubstantially the same changing hands from parent to childor vendor to vendee for a period in excess of five decadesat the point of time Sopinona, Carolis and Comelis gaveevidence at the second trial in 1996 and 1997.
There are two major difficulties that arise in the standtaken by the Appellant in this case. The first is that the claimsof the Appellant for a share of Porikehena under a purchasefrom the heirs of Haramanis effected by Deed No. 1874 dated28th October 1967, and a further share of Porikehena underthe birth right of her deceased husband Remanis, as an heirof Jeeris, are mutually inconsistent. The contradiction arisingfrom the juxtaposition of these two claims is that in order toassert a “birth right” to the co-ownership of Porikehena as anheir of Jeeris, she has to disassociate herself from Plan No.1868 (3D1), which she can ill afford to do as the ownership
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to the divided lot D of the said Plan sought to be conveyedby Deed No. 1845 (3D3) is expressed in the deed itself to bebased on the said amicable partition effected in 1940 andprescription.
Secondly, the Appellant has an even more seriousproblem in regard to the total extent of land that was tak-en to constitute the corpus sought to be partitioned in theimpugned judgment of the District Court. The Appellant hasfailed to explain to this Court the basis on which Porikehe-na, which according to the plaint, and the evidence led inthe case, consisted of 3 roods and 11 perches as stated inCrown Grant No. 30258 (PI) increased in size and extent toI acre and 16.85 perches as shown in the Preliminary PlanNo. 255. The problem here is that there is no evidence of anypaper title that establishes co-ownership between Jeeris andHaramanis to the extent beyond 3 roods and 11.9 perchescovered by the Crown Grant.
In my view, the Learned District Judge has consideredthe relations between Jeeris and Haramanis as co-ownersof the land they acquired through the Crown Grant of 1895(PI) but her examination of the material relating to theamalgamation and amicable partition effected in 1940and subsequent dealings and transactions that took placethereafter is lacking in depth. I am of the opinion that theevidence relating to the enjoyment and use of the propertyby the heirs of Jeeris and Haramanis over a period of at least29 years leading up to the institution of the action in 1969 hasnot been adequately examined and analyzed by the learnedDistrict Judge. Accordingly, I answer question (a) on whichspecial leave was granted in the negative, and hold that theoriginal court has not conducted a sufficient investigation oftitle as required by law.
Sopinona vs. Pitipanaarachchi And two others
(Saleem Marsoof, J)
Duty to Answer All Issues
It is now necessary to turn to the other two questionson which leave to appeal has been granted by this Court.Question (b) arising on this appeal is whether all issues needbe answered by the District Judge when the answer to oneissue alone sufficiently determines the title of the parties tothe land both on deeds and on prescription. It is quite obviousthat the duty of formulating issues is a responsibility ofCourt, and it is the duty of court to answer all issuesarising in the case. As Lord Devlin observed in Bank ofCeylon v. Chelliah Pillai1321 at 27, “a case must be tried uponthe issues on which the right decision of the case appears tothe court to depend and it is well settled that the framing ofsuch issues is not restricted by the pleadings. .. .” In Peiris v.Municipal Council, Galle[33) at 556, Justice Tambiah remarkedthat even where the plaintiff fails to raise a relevant issue, itis the duty of the judge to raise the necessary issues for a justdecision of the case. A fortiori, it follows that it is the duty ofthe judge to answer at the end of the trial all the issues raisedin the case.
The only exception to this cardinal principle is foundin Section 147 of the Civil Procedure Code wherein courtshave been vested with a degree of discretion, where it is ofthe opinion that a particular matter may be decided on theissues of law alone, to try the issues of law first. In Mohinudeenand Another v. Lanka Bankuwa, York Sheeet, Colombo 01 (34)at 299 Hector Yapa, J., cited with approval the following dictaof Wijeyaratna, J. in Muthukrishna v. Gomes and Others (35)at 8:
“Judges of original courts should, as far as practicable,go through the entire trial and answer all the issues
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unless they are certain that a pure question of law without theleading of evidence (apart from formal evidence) can disposeof the case.” (Emphasis added)
Making a further exception which will enable judges toavoid answering one or more of issues of fact – such as issues
to (9) in this case – on the basis that the answer to one ofthem will effectively dispose of all questions regarding whichthe parties are at variance, might be somewhat imprudentas they could lead to disastrous results. In fact, a carefulexamination of the issues formulated at the commencementof trial in this case shows that there was no way in whichthe court could have avoided answering all the issues raisedat the commencement of the trial, and it is ironic that thelearned trial Judge had gone through the entire trial but hadchosen not to answer only issue (1). Indeed, if the learnedJudge had focused even for a moment on the other 13 issues,she may have answered issue (1) differently.
The final question [question (c)] on which leave to appealwas granted in this case, is whether, if the answer to a singleissue is in effect a complete answer to all the issues arisingfor determination in this action, whether it is necessaryand incumbent on the District Judge to give specific answersto the other issues. In this context, it is relevant to notethat in terms of Section 187 of the Civil Procedure Code, ajudgement should contain a concise statement of the case,the points for determination, the decision thereon, and thereasons for such decision. As was observed by court inWamakula v. Ramani Jayawardena (supra) at 208, “bareanswers to issues without reasons are not in compliancewith the requirements of Section 187 of the Civil ProcedureCode.” The judge must evaluate and consider the totalityof the evidence, giving a short summary of the evidence of the
Sopinona vs. Pitipanaarachchi And two others
(Saleem Marsoof, J)
parties and witnesses and stating the reasons for hispreference to accept the evidence of one party as opposed tothat of the other. The learned District Judge in this case hastotally failed to discharge this duty by failing to even attemptanswering all of the very material issues raised on behalf of theRespondents, and has also failed to explain why, in her view,it was not necessary to answer the other very importantissues.
I have no difficulty in answering questions (b) and (c) inthe negative and in favour of the Respondents.
In the context of all these facts, I conclude that thelearned District Judge has not only failed to carefully examinequestions relating to the identity of the corpus and theadequacy of the lis pendens registered in the case, but alsofailed to properly investigate title and in particular examinethe issues relating to prescription with- the intensity thatis expected in a partition case. Although for these reasons,I agree with the decision of the Court of Appeal that thejudgment of the District Court cannot stand and shouldbe set aside, I have also given anxious consideration to thequestion whether this case should be sent back to theDistrict Court for trial de novo.
I have carefully considered the evidence led at the secondtrial before the District Court, and am of the opinion thaton this evidence, it is clear that the possession of Jeeris’sheirs became adverse to Haramanis’s heirs after an amicablepartition was effected through Plan No. 1868 (3D1) in 1940,and the persons to whom lots ‘A’ and “E’ of the said Plan wereallocated, and their successors in title, had possessed the
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said lots exclusively up to the time of institution of action in1969 by Remanis. It is manifest that Porikehena, the landsought to be partitioned in this action and is described inthe schedule to the plaint, which coincides with the said lotsA’ and *E’, had lost the character of co-owned property longbefore Remanis instituted the partition action from whichthis appeal arises, more than 40 years ago. Accordingly, Iam of the firm opinion that the learned District Judge shouldhave dismissed the action on the basis that the corpus soughtto be partitioned was not co-owned property.
I am also firmly of the opinion that, in any event, nouseful purpose would be served by sending this case back tothe original court for trial de novo, as directed by the Court ofAppeal. This would constitute a third trial of this case morethan four decades since the matter was first brought beforethe District Court. This fact in itself raises serious doubtsregarding the possibility of securing witnesses with first handknowledge of the material facts, considering the time whichhas already elapsed and the further time such fresh trialwould take to make its way through the courts yet again.I note that Sopinona, Carolis and Comelis, the witnessespresented before the courts in the second trial before theDistrict Court of Homagama, would by now be more than 80years old if they are living, and their descendants may notknow about the facts of this case even to the extent Sopinona,Carolis and Comelis knew.
Considering therefore all the circumstances of this case,and in particular, the uncertainty regarding the identity of thecorpus, the failure to register fis pendens for the larger landof 1 acre and 16.85 perches, the weakness in the case of theAppellant as presented at the trial, the difficulty of fundingwitnesses who can testify at a fresh trial, and the evidence
Sopinona vs. Pitipcmaarachchi And two others
(Saleem Marsoof J)
led at the trial which show that the land sought to bepartitioned was not co-owned property, I am of the opinionthat it is appropriate to make order setting aside the judge-ment of the Court of Appeal dated 22nd November 2002 as wellas the judgement of the District Court dated 4th September1998, and substitute therefore an order that the action filed inthe District Court by the substituted Appellant should standdismissed. I do not make any order for. costs in all thecircumstances of this case.
Judgment of the Court of Appeal and District Court set aside.Appeal dismissed
By majority decision trial de Novo stands.
Appeal dismissed