Basnayake vs Peter and Others
BASNAYAKEVSPETER AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
CA 883/94 (F).
DC TANGALLE 2338/P.
AUGUST 24, 2004.
Partition Law, No. 2 of 1977, section 25 – Investigation of Title-Answering ofpoints of contest – Mandatory – Bare answers to issues – Does it suffice? -Settlement? – Civil Procedure Code – section 187.
The trial Judge in his judgment while ordering the partition of the land hasstated that although there was a contest at the commencement, later as thecase had been concluded only with the plaintiff’s evidence and since noevidence had been led by the defendant, he was accepting the evidence givenby the plaintiff and accordingly it was concluded that parties should be entitledto undivided shares in the judgment.
On appeal it was contended that there had not been a settlement and the trialjudge has failed to investigate title and to even answer the points of contest.
It is to be observed that there is nothing in the record to infer that asettlement was arrived upon.
In such circumstances firstly, the trial judge should have answered thepoints of contest after due evaluation of the available evidence.
The trial judge has totally failed to answer any of the points of contestadmitted to trial.
Sri Lanka Law Reports
(2005) 3 Sri L R.
4 Bare answers without reasons to issues or points of contest raised ata trial are not in compliance with the requirements of section 187 ofthe Civil Procedure Code.
APPEAL from the judgment of the District Court of Tangalle.
Cases referred to :
Cooray vs. Wijesuriya 62 NLR 158
Dona Lucy Hamy vs. Cicillianahamy 59 NLR 214
Warnakula vs. Ramani Jayawardena 1990 1 Sri LR 207
M. B. Morais with P. Wijetilake for 8th defendant – appellant.
W. Dayaratne for plaintiff-respondent.
Cur. adv. vult.
June 15, 2005.
CHANDRA EKANAYAKE, J.This is an appeal preferred by the 8th Defendant – Appellant (hereinaftersometimes referred to as the 8th Defendant) against the judgment of thelearned District Judge of Tangalle dated 15.03.1994 moving to set asidethe same and for judgment as prayed by the 8th Defendant in her statementof claim.
The Plaintiff – Respondent (hereinafter sometimes referred to as the Plaintiff)by amended plaint dated 25.03.1991 sought to partition lot 6 of land calledand known as “Bahinamankadahena” situated in Galagama, Dedduwawalaand moved for an undivided 12/48 share from the corpus together with theimprovements and plantation as prayed in sub paragraph (ii) of the prayer tothe amended plaint. The devolution of title relied upon was averred and theshares were shown in paragraph 10 of the said amended plaint.
The 8th defendant by her statement of claim dated 09.12.1991 whilstonly admitting that the corpus described in paragraph 2 of the amendedplaint comprises of lots 1,2 and 3 depicted in preliminary plan No.2664and averments in paragraph 3 of the said amended plaint pleaded inter alia
Basnayake vs Peter and Others (Chandra Ekanayake, J.)
that she be granted undivided 1/9th share as shown in paragraph 9 of thesaid statement of claim.
As seen by the proceedings of 15.02.1993 a trial de novo hadcommenced on that day. The plaintiff, 7th defendant and the 8th defendanthad been represented by Counsel on that date. Points of contest 1 to 8had been raised on behalf of the plaintiff. 9 to 12 and 13-14 had beenraised on behalf of the 7th and 8th defendants respectively. When theplaintiff was testifying he had been even cross examined by the respectiveCounsel who had represented 7 th and 8th defendants. At the conclusionof the cross examination it is recorded that the plaintiff has closed hiscase reading in evidence documents marked P1 to P14 and thereafter adate had been moved for tendering of plaintiff’s documents. Accordingly,22.03.1993 had been given for the plaintiff’s documents. After obtainingseveral dates by plaintiff, on 14.02.1994 Samarasekera KankanamgeCaralina (substituted plaintiff) the widow of the deceased original plaintiffhad been called to give evidence with regard to document marked P1being the final decree in Case No. 840/P. However, evidence of this witnesshad been to the effect that although every attempt was made to obtain P1she was unsuccessful. She had stated in her evidence (at page 125 of thebrief) to the following effect.
It is to be observed from the proceedings of 14.02.1994 that this witnesshad not been cross examined either by the 7th defendant or 8th defendant.However, after conclusion of examination-in-chief of that witness, casehad been fixed for judgment on 15.03.1994.
On a perusal of the impugned judgment it is found that the learnedJudge has stated (at page 128 of the brief) as follows :-
Sri Lanka Law Reports
(2005) 3 Sri L ft
As seen above, it has become crystal clear that the learned Judge hadtotally failed to investigate the title to the corpus. He has stated that althoughthere was a contest at the commencement, later as the case had beenconcluded only with the plaintiff’s evidence and since no evidence hadbeen led by the defendant, he was accepting the evidence given by theplaintiff and accordingly it was concluded that parlies should be entitled toundivided shares as in the judgment, (as appearing at page 128 of thebrief).
As evidenced by the proceedings before the learned District Judge afterraising points of contest, nowhere has it been recorded that the aforesaidcontest was settled and/or that there was no contest among the parties. Ithas to be further observed that there is nothing in the record to infer that asettlement was arrived upon. In those circumstances firstly the learnedDistrict Judge should have answered the points of contest after dueevaluation of the evidence available before Court. In this regard it would bepertinent to consider the decision in Cooray vs. Wijesuriyaf ’> where theCourt held thus:
“Section 25 of the Partition Act imposes on the Court theobligation to examine morefully the title of each party tothe action.”
In the instant case I conclude that the learned Judge has committed acardinal error by not investigating the title to the corpus. It is to be furthernoted that the learned Judge also has failed to answer the points of contestwhich had been admitted to trial. In the case of Dona Lucyhamy vsCicillinahamy(2> it was held by the Supreme Court to the following effect:
“Bare answers, without reasons to issues or points of contestraised in a trial are not in compliance with the requirements ofsection 187 of the Civil Procedure Code”
The above principle of law was followed by the Court of Appeal inWarnakula vs. Ram an i Jay a warden^ wherein it was held :
“Bare answers to issues without reasons are not in compliancewith the requirements of section 187 of the Civil ProcedureCode. The evidence germane to each issue must be reviewed
Sobanahamy vs Somadasa
or examined. The Judge must evaluate and consider the totalityof the evidence. Giving a short summary of the evidence of theparties and witnesses and stating that he prefers to accept theevidence of one party without giving reasons are insufficient.”
In the instant case the learned Judge has totally failed to answer any ofthe points of contest admitted to trial.
For the aforesaid reasons I conclude that the impugned judgment cannotbe allowed to stand and the judgment dated 15.03.1994 is hereby setaside. Although I am quite mindful of the inconveniences that would becaused to the parties by a trial de novo, I conclude that this Court is leftwith no alternative but to order a trial de novo. Accordingly the case isremitted to the District Court for a trial de novo and the learned DistrictJudge is hereby directed to conclude the same as expeditiously as possible.Parties to bear their own costs incurred in the lower court and here.
The Registrar of this Court is directed to forward the record in case No.2338/P to the respective District Court forthwith.
SOM AWANSA, J(P/CA). – / agree.
Trial de Novo Ordered.