RATNAYAKECOURT OF APPEAL
WUETUNGA, J. AND ANANDACOOMARASWAMY. J.
A. NO 37/88
C. MATARA NO. 11370/P
JUNE 23. 1988-
Partition — Scheme of partition — Partition Law. Ss. 33 and 36 — Modificationof Commissioners scheme.■
Under S. 33 of the Partition Law. the surveyor is required to so partition the landthat each party entitled to cdmpensation in respect of improvements is allotted,as far as is practicable, the portion of the land which has been so improved.
In confirming the scheme the expression "modifications'* should not be taken tomean only "slight alterations." In an appropriate case a scheme with substantialchanges could be adopted. The trial judge may adapt the scheme of partitionprepared by the Commissioner with changes in any manner which he deemsnecessary.
Cases rsfered to
Thevchanamoorthy v. Appakuddy 51 NLR 317
Sedins Perera v. Mary Mona 75 NLR 133
APPLICATION for revision of order of the District Judge of Matara.
N. R M. Daluwatte P.C. with Chula Boange for 3rd defendant-petitioner
M P. Rajaratne for 1st defendant-respondentY. L Geethananda for plaintiff-respondent.
Cur. adv. vuft
October 7.1988WUETUNGA, J.
The 3rd defendant-petitioner seeks to revise the order of thelearned District Judge dated 28.9.87 confirming the scheme ofpartition submitted by the Commissioner, viz. plan No. 2642dated 16.12.85. prepared by S. L. Galappaththy. LicencedSurveyor, on a commission issued to him.
An alternative scheme submitted by the 3rd defendant-petitioner which is depicted in plan No. 2669 dated 220.127.116.11.prepared by M. A. S. Premaratne. Licenced Surveyor has alsobeen considered by the District Judge at the Scheme Inquiry.
He points out that under the scheme submitted by theCommissioner, all the parties have direct access to the V.C. roadwhich is 10 feet wide, whereas under the alternative schemesubmitted by surveyor Premaratne a new roadway has to beconstructed from the V.C. road,, along the eastern boundary of3rd defendant's land. He comments that the scheme submitted
by surveyor Premaratne benefits only the 3rd defendant and isdesigned to protect the interests of that defendant. Under theCommissioner's scheme, each of the parties gets a road frontagealong the V. C. road and even the 3rd defendant gets more thanhalf the total V.C. road frontage. He further states that the onlydisadvantage that the 3rd defendant can complain of is that hedoes not get the entirety of the tea plantation he claims. But hewould receive adequate compensation in lieu thereof. The DistrictJudge, therefore, does not consider the alternative scheme a fairone.
On an examination of the two schemes, it is patently clear thatthe scheme preferred by the learned District Judge isundoubtedly the better one. He has given valid and cogentreasons for his conclusions. That scheme is indeed reasonableand is in conformity with the interlocutory decree. It does notcause injustice to any of the parties and ensures proportionateroad frontage to each of them, along the V.C. road.
Under Section 33 of the Partition Law. the surveyor is requiredto. so partition the land that each party entitled to compensationin respect of improvements is allotted, so far as is practicable,that portion of the land which has been so improved. To mymind, the scheme submitted by the Commissioner satisfies thisrequirement so far as is practicable.
In Tlhevchanamoorthy v. Appakuddy. (1) Jayetileke S. P. J.states at page 321 that "the policy of the law has been to allot toa co-owner the portion which contains his improvementswhenever it is possible to do so."
In Sediris Perera v. Mary Nona. (2) Sirimane. J.. withWeeramantry. J. agreeing, has held that although a co-ownershould ordinarily be given by the Commissioner an allotmentwhich includes the improvements he has made, this rule neednot be adhered to. if in doing so, a fair and equitable division isrendered impossible.
Applying these principles to the instant case, I am satisfied thatthe scheme preferred by the District Judge ensures a much fairerdivision than the alternative scheme.
The learned District Judge, however, in considering the ambitof the words "confirm with or without modification the scheme ofpartition proposed by the surveyor” in Section 36 of the PartitionLaw. has taken the view that the court can only make 'slightalterations' to the scheme. He states that the alternative schemeproposed by surveyor Premaratne is entirely different from that ofthe Commissioner and is not merely a 'slight alteration*.
I am unable to agree with this view. The word 'modification',though it ordinarily means making partial changes, does not inmy opinion restrict the court to effecting only ‘slight alterations'in a .scheme of partition. In an appropriate case, it could extendto substantial changes, in other words, the trial judge may adaptthe scheme of partition proposed by the Commissioner in anymanner which he deems necessary.
However, the trial judge's aforesaid view in regard to the scopeof modification does not affect the validity of his ultimateconclusions in respect of the scheme of partition confirmed byhim.
Thus. I see no merit in the 3rd defendant-petitioner'sapplication for revision and would dismiss the same with costs.
anandacoomaraswamy.j. – I agree
ALBERT V. RATNAYAKE