036-NLR-NLR-V-64-BININDA-Appellant-and-SEDIRIS-SINGHO-and-others-Respondents.pdf
208
WEERASOORIYA, J.—Hininda v. Scdiria Singlio
Present: Weerasooriya, J., and T. S. Fernando, J.
BININDA, Appellant, and SEDIRIS SINGHO and others, Respondents
3. C. 532—-D. C. Kegalle, 9,116/P.
*
Partition action—Preliminary survey—Inclusion of land other than that which isreferred to in the plaint—Irregularity—Surveyor's fees—Lia pendens—PartitionAct, No. 16 of 1951, ee. 23 (1), 48 (I), 48 (3).
When preparing a preliminary plan in a partition action it is irrogular for aSurveyor, in the absence of on additional commission issued to him under section.23 (1) of the Partition Act, to survey and include in the corpus any land othorthan that which is referred to in the plaint nnd which his’ commission autho-rises him to survey. The surveyor will not be entitled to receive fees in respectof that part of the survey which he makes in excess.
Appeal from a judgment of the District Court, Kegalle.
4
’ V. J. Martyn, for the petitioner-appellant.
B. Wijegoonewardena, for the lst>-7th defendants-respondents.
*
No appearance for the plaintiff-respondent.
Cur. adv. vult.
October 7, 1960. Weerasoobiya, J.—
The plaintiff filed this action for the partition of a land calledNekatipuranehena of two pelas paddy sowing extent. The preliminaryplan “ X ” prepared by the surveyor depicts a land of six allotmentsnumbered 1, 2, 3, 4, 5 and 6 and totalling in extent 7A. OR. 33P. Inparagraph 2 of the surveyor’s report it is stated that according to theplaintiff the land sought to be partitioned consisted of lots 4, 5 and 6 only,
while lots 1, 2 and 3 formed a different land called Galamunehena. But
* «
WEERASOORIYA, J.—Binincla v. Sediris Singho
209
the surveyor surveyed lots 1, 2 and 3 as well and included them in theland depicted in the preliminary plan because the 1st to the 7thdefendants-respondents insisted that they formed part of the landNekatipuranehena.
Section 23 (1) of the Partition Act, No. 16 of 1951, provides that where adefendant in a partition action avers that the land described in the plaintis only a portion of a larger land which should have been made thesubject matter of the action, the Court may issue a commission to asurveyor directing him to survey the extent of land referred to by thatdefendant. If the 1st to the 7th defendants claimed that lots 1, 2 and 3also formed part of Nekatipuranehena they should have applied to theCourt Tinder section 23 (1) for the issue of an additional commission tothe surveyor to survey those lots as well. In the absence of such acommission the action of the surveyor in proceeding to survey those lotsand include them in the corpus depicted in the preliminary plan wasquite irregular as the commission under which he purported to act didnot authorise him to survey any land other than that to which the plaintreferred. Learned counsel for the 1st to 7th defendants did not seriouslycontend at the hearing of the appeal that lots 1, 2 and 3 in the preliminaryplan form part of the land Nekatipuranehena. It is common ground thatthe only registration of the action as a lis pendens is in respect of a land inthat name as described in the plaint. Had an additional commissionissued to the surveyor in terms of section 23 (1), directions could havebeen given by the District Judge under the further provisions of thatsection for the registration of the action as a lis pendens affecting anyadditional portion of land brought into the corpus sought to be parti-tioned and for service of notice of the action on the person or personsclaiming an interest in such portion.
At the trial the plaintiff too fell into line with the position taken up bythe 1st to the 7th defendants that lots 1, 2 and 3 formed part of Nekati-puranehena. He was the only witness called, and at the conclusion ofhis evidence judgment was pronounced ordering that an interlocutorydecree be entered for the partition of the entire land of six allotments asdepicted in the* preliminary plan. The final decree of partition wasentered on the 12th July, 1956.
On the 12th December, 1956, the appellant, who is not a party to theaction, filed an application to have the final decree set aside and theportion of the corpus alleged to represent the land called Galamunehena,of which he claimed to be the owner, excluded from the partition. The1st to the 7th defendants objected to this application, and after inquirythe learned District Judge made order dismissing it with costs. Thepresent appeal is from that order.
Mr. Martyn who appeared for the appellant conceded that in view ofsection 48 (1) of the Partition Act—and even apart from it—his client’sapplication was misconceived since the District Court would have, nojurisdiction, once the final decree of partition was entered, to set it asideoven if the land Galamunehena was wrongly included in the corpus to be
210
Thalvira v. Urban Council, Hambantota
partitioned and there has been no due registration of the action as a liependens. While not denying, therefore, that the appeal should be dis-.missed, Mr. Martyn submitted that in view of the irregular manner'inwhich the surveyor came to include lots 1, 2 and 3 in the land depicted inthe preliminary plan we do, acting in revision, set aside the interlocutorydecree as well as the final decree of partition and remit the case to theDistrict Court for fresh proceedings to be taken in accordance withsection 23 and the other provisions of the Partition Act..
This Court has, no doubt, ample powers to interfere by way of revisionin a case like the present one even though no special application in thatbehalf has been made. But, having regard to the time that has elapsedsince the final decree was entered, I do not think that we should, in theexercise of those powers, now disturb the partition of the corpus that waseffected under that decree, especially as there is nothing to show that allthe parties who may be prejudiced by the adoption of such a course arebefore us and have had an opportunity of showing cause against it.Moreover, in view of section 48 (3) of the Partition Act, the rights of the •appellant, if any, to the portion which he claims to have been wronglyincluded in the corpus would appear to be unaffected by the entering ofthe interlocutory or the final decree in this case and it would be open tohim, if so advised, to vindicate his rights to that portion as against the1st to the 7tli defendants (who are the parties declared in the final decreeto be entitled to the same in divided lots) or against any subsequenttransferee from them.
The appeal is dismissed with costs payable to the 1st to 7th defendants-respondents. I also direct that as the surveyor who prepared tbe pre-liminary plan had no authority from Court to survey lots 1, 2 and 3 inthe plan he be paid no fees for that part of the survey. If he has alreadydrawn any fees for such work he must refund them to the plaintiff.
T. S. Fernando, J.—I agree.
Appeal dismissed.