013-NLR-NLR-V-77-A.-DIONIS-Appellant-and-A.-WILLIAM-SINGHO-and-others-Respondents.pdf
Dionis v. William Singho
103
Present: Pathirana, J., and Rajaratnam, J.
A. DIONIS, Appellant, and A. WILLIAM SINGHO andothers, Respondents
S. C. 170/69 (Inty.)—D. C■ Gampaha, 11876/P
Partition action—Exclusion of a land from the land sought to bepartitioned—Incapacity of the Court thereafter to make anyorders as to the rights of the parties in relation to the excludedland.
In a partition action, once a certain land has been excluded fromthe corpus sought to be partitioned, the Court has no authorityunder the Partition Act to determine the right, title or interest ofany person who claims to be entitled to the land that has beenexcluded, or to the plantations, buildings or other improvementson it.
j_PPEAL from an order of the District Court, Gampaha.
D. R. P. Goonetilleke, for the 11th defendant-appellant.
J.W. Subasinghe, with Sarath Dissanayake and (Miss) NilminiGoonasekera, for the 1st to 8th defendants-respondents.
Cur. adv. vult.
104
PATHIRANA, J.—Dionis v. William. Singlio
January 30, 1973. Pathirana, J.—
The 1st and 2nd plaintiffs instituted this action to partitionthe land called Delgahawatte, depicted as lots 1, 2 and 3 inPlan No. 575 dated 17.9.65, marked X, made by L. R. L. Perera,Licensed Surveyor, in extent OA. 2R. 39.75P.
The heirs of the deceased 1st defendant were represented byIB defendant who was appointd legal representative of theestate of the 1st defendant (deceased).
The IB defendant, as representing the heirs of the 1st defen-dant (deceased), took up the position that the land sought tobe partitioned was amicably divided among the co-owners in1930, and that lot 2 of Delgahawatte in Plan No. 588B, marked1D3, dated 16.2.30, made by J. C. Chapman, Licensed Surveyor,was allotted to the 1st defendant (deceased). Lot 2 of Delgaha-watte, depicted in Plan 1D3, is also depicted in Plan 696 of16.11.66, which is a Plan where this Plan No. 588B—1D3—hasbeen superimposed on Plan No. 575—‘ X
In Plan No. 696 of 16.11.66, filed of record, the superimposedboundaries are depicted in blue and are edged in blue to indicatethe superimposition. I shall hereafter refer to this land as theland in Plan 1D3. The IB defendant sought the exclusion of thisland along with the buildings including the Rouse ‘ J ’ from thispartition action on the ground that this land was possessedexclusively and separately by the 1st defendant (deceased) whohad prescribed to it.
The 11th defendant-appellant also claimed the buildingmarked J, one part of which fell within this allotment, as havingbeen built by his uncle and by his mother and handed over tohim, and the other part which fell outside this allotment ashaving been built by him and his mother. He claimed prescrip-tive title to this building.
Among the points of contest at the trial was the questionwhether the IB defendant was entitled on behalf of the heirs ofthe 1st defendant to claim an exclusion of this allotment of landand the buildings including building J. which were situated onthis allotment on the ground of prescriptive possession. The 11thdefendant also raised a point of contest whether he was entitledto the house marked J.
The learned District Judge held that on the evidence led inthe case and the documents produced the land depicted inPlan 1D3, which in turn is depicted in Plan No. 696, had beenpossessed as a separate land for over 30 years, and accordinglyhe excluded the said land from the corpus sought to be parti-tioned, as claimed by the IB defendant who is the legal
PATHIRANA, J.—Dionis v. William Singho
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representative of the estate of the 1st defendant (deceased).He also held that all the improvements on this lot were made bythe 1st defendant (deceased), and he proceeded to answer thepoints of contest raised by the 11th defendant-appellant andstated that the 11th defendant-appellant was not entitled to thehouse marked J. The interlocutory decree was entered on 25.6.69in which reference was made to the exclusion of this landdepicted in Plan 1D3 from the corpus sought to be partitioned.But, no mention is made in the said decree as to whom thebuilding J. has been allotted, and this correctly too.
Mr. D. R. P. Goonetilleke for the 11th defendant-appellanttakes up the position that once a land has been excluded fromthe land sought to be partitioned no orders can be made by thecourt in relation to the rights of any one in respect of the saidland which has been excluded. It is also his position that thelearned District Judge, once he had excluded the land depictedin Plan 1D3, he had no right to make any order as to whom thebuilding J. which is on the said excluded portion belonged to.It is true that the decree makes no reference to the building J,but, there is nothing to prevent at some subsequent stage a partymoving to amend the decree in terms of section 189 of the CivilProcedure Code, in order to make the decree conform to thejudgment and thereby make a reference in the amended decreeto the fact that the 11th defendant was not entitled to thebuilding J. or that the heirs of the 1st defendant were declaredentitled to the said building.
Whether a Court is entitled to make any orders as to the rightsof parties in respect of a corpus which has been excluded fromthe land sought to be partitioned has been the subject matter ofdecisions of this Court. In Luinona v. Gunasekera1 (60 N.L.R. 346)Basnayake C.J. held that the Partition Act makes no provisionfor excluding from a partition action after lis pendens is dulyregistered any part of the land to which the action relates. Ifallotments of land of which some of the parties to the actionare sole owners are included by the plaintiff in his action, theonly way of dealing with them under the scheme of the Act isby declaring in both the interlocutory and final decrees suchparties entitled to those separate allotments. He therefore heldthat if the 7th defendant in that case proved his exclusive rightto lot C, he should have been declared entitled to it in theinterlocutory decree instead of excluding it. Similarly in regardto lot B the party who proved his claim to it should have beendeclared entitled to it.
» U958) 60 N. L. R. 346.
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PATHIRANA, J.—Dionis v. William Singho
In Hevavitharana v. Themis de Silva1 (63 N.L.R. 68 at 71).Tambiah J. did not follow the judgment of Luinona v.Gunasekera (supra). Tambiah J. after analysing certainprovisions in the Partition Act held,—
“ There is no provision in the Partition Act that theCourt is obliged to make any of the orders set out in section26 (2), in respect of the land that is described in the plaint.Nor is there any provision in the Act providing for thedeclaration of title to a land solely owned by a person, whichhas been wrongly included in the corpus sought to bepartitioned. In such cases the practice hitherto has been toexclude the land which is outside the subject-matter of thepartition action and which is proved to have been theproperty of a person who is not a party to the proceedings.It is not uncommon for a plaintiff to include small portionsof land in the corpus belonging to other persons. In all suchcases if the Court has to adjudicate also on the title of theowners of those lands, then the Court will be obliged toinvestigate the title of lands which do not come within thepurview and scope of section 2 of the Partition Act. Further,if the Court has to examine the title of persons whose landshave been wrongly included in the corpus, great inconveni-ence and hardship may be caused to persons who may bequite content to possess such lands in common or, if ithappens to be the land of a single individual, to possess it byhimself. In our view it is not the intention of the legislaturein passing the Partition Act that the Court should partitionany lands other than those that came within the ambit ofsection 2 of the Act. ”
I am in respectful agreement with the judgment and reasonsof Tambiah J. and I hold that once a certain corpus has beenexcluded from the land sought to be partitioned, the Court hasno right under the Partition Act to adjudicate on any right, titleor interest of any person in respect of the corpus which hadbeen excluded.
The judgment of Tambiah J. finds support in the case ofKanthia v. Sinnatamby2 (2, Balasingham, Notes of Cases, 19)where Lascellers, C. J., in considering the question whether thelearned Commissioner was right in refusing to make an orderwith regard to a certain right of way claimed by the appellantsover certain land lying outside and to the north of the landwhich was the subject of the partition action observed,—
“ There can in my opinion, be no doubt but that theCommissioner was right in refusing to adjudicate with
1 (7957) 63 N. L. B. 68 at 71.*
{1913) 2 Bed. N. O. 19.
PATH1RANA, J.—Dionia v. William Singho
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regard to the existence of a servitude on land outside theland which was the subject matter of the partition action. Ifthe land to the north had belonged to a stranger, a personwho was not a party to the action, it is clear that no orderwith regard to a servitude over the land would have anybinding effect ; and the accident that the land belonged tothe plaintiff can in no way enlarge the powers of a court in apartition action.”
The judgment of Lascelles C. J., has been followed morerecently in the case of Thambiah v. Sinnathamby1 (61 N L. R.421), which decided that in a partition action a declarationcannot be obtained that a land outside the land to be partitionedis subject to a servitude. Weerasooriya J. observed,—
“ It is not clear how in a partition action a declarationcan be obtained that a land outside the land to be partitionedis subject to a servitude, for this in effect is what theplaintiff seeks. Our attention was drawn by Mr. Chelva-nayakam who appeared for the 3rd defendant-respondentto the case of Kanthia v. Sinnathamby where it was heldthat such a declaration could not be granted. The positionseems to be the same under the Partition Act, No. 16 of 1951,which governs the present action. On this ground alone,therefore, the declaration sought for by the plaintiff shouldhave been refused. ”
I am, therefore, in agreement with the submission made byMr. Goonetilleke for the 11th defendant-appellant that while thelearned District Judge was right in ordering the exclusion of theland described as .lot 2 of Delgahawatte, depicted in Plan 1D3from the corpus sought to be partitioned, the Court had nopower to determine the right, title or interest of the person orpersons who claimed to be entitled to the corpus that has beenexcluded, or to the plantations, buildings or other improvementson it.
therefore, set aside all the findings of the learned DistrictJudge which declare or have the effect of declaring the heirsof the 1st defendant (deceased) whose estate is represented bythe IB defendant entitled to the corpus that has been excludedor any right to the building marked J. or other buildings orimprovements thereon. This order will however not preju licethe rights of the heirs of the 1st defendant (deceased), o.:■ the11th defendant-appellant from vindicating whatever rights theyhave to or in the corpus sought to be excluded and the buildingsor improvements thereon in a properly constituted action.
1 {1958) 61 N. L. R 421.
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WIJESTJNDERA, J. —Sediris v. Karunaratne
Subject to the variations I have ordered in regard to thefindings of the learned District Judge, I affirm the interlocutorydecree. There will be no costs of appeal.
Rajaratnajvt, J.—I agree.
Appeal of 11th defendant allowed.