011-NLR-NLR-V-63-C.-N.-HEVAVITHARANA-Appellant-and-S.-THEMIS-DE-SILVA-and-others-Respondents.pdf
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TAMBIAH, J.—Hevavitharana v. Themis de SUva
Present:L. B. de Silva, J., and Tambiah, J.N. HEVAVITHARANA, Appellant, and S. THEMIS DE SILVA
and others, Respondents
S. C. 75—D. C. Balapitiya, 367IN.P.
Partition action—Exclusion of part of the land to which the action relates—Permissi-bility—Partition Act No. 1G of 1951, ss. 2, 23, 25, 2G—Civil Procedure Code,s. 839.
In an action instituted under section 2 of the Partition Act to partition aland the Court has inherent power, under section 839 of the Civil ProcedureCod i, to make an order excluding a separate or divided lot or land which hasbeen wrongly included hy the plaintiff as being part of the corpus. The Courthas no power to deal with the separate lot also and to declare in the interlocutorydecree the person, who proves title to it, as the owner.
Luinona v. Qunasehera (195S) 60 N". L. R. 346, not followed.
.A.PPEAL from an order of the District Court, Balapitiya.
E. B. Wikramanayake, Q.C., with S. W. Jayasuriya, for the plaintiff-appellant.
No appearance for the defendants-respondents.
Cur. adv. vult.
March 28, 1961. Tambiah, J.—
The plaintiff instituted this action to partition a land called Korado-lawela depicted as lots A-G in plan 3590, dated 31.3.55 made byMr. E. de Z. Gunawardena, Licensed Surveyor, marked “ X ” in thecourse of the proceedings.
The 7th defendant filed answer claiming lot F in the said plan as aseparate and distinct portion forming part of a land called Koradellen-deniya. The fifth and sixth defendants claimed lot E as a separate land.The 30th defendant claimed a divided portion as the property of theCrown. Those defendants claimed therefore the exclusion of these lots.
At the trial, the plaintiff sought to restrict the partition action to lotsA, B, C & D in the plan and asked for the exclusion of lots E, F & G.It was contended by Counsel for the seventh defendant that the plaintiffhaving filed a partition action for a land, of an extent of 1 acre and 38perches, and having registered the lis pendens in respect of this land,cannot now ask for a partition of a portion of it, and therefore he sub-mitted that plaintiff’s action must be dismissed. The learned Judge,
TAAIBIAH, J.—Hevavitharana v. Themis de Silva
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purporting to follow the ruling in Zminona v. Gunasekera,1 held that theplaintiff’s action must necessarily fail and dismissed it with costs. Theplaintiff has appealed from this order.
It was contended on behalf of the plaintiff-appellant that the DistrictJudge had no power to dismiss a partition case in view of the provisionsof the Partition Act, No. 16 of 1951. Learned Counsel for the appellantalso urged that the trial judge had misapprehended the ruling in Luinona’scase (supra). In that case it was held that where the plaintiff in a parti-tion case has sought to include land belonging to a person, other than theco-owners of the land sought to be partitioned, then the proper coursefor the District Judge to adopt is to deal with that land also and todeclare the person who proves title to it as the owner in the interlocutorydecree. In the course of his judgment Basnayake, C.J., said at p. 349 :“ The scheme of the Partition Act is that once an action is instituted andlis pendents is duly registered the action must proceed in respect of theland described in the plaint except where a larger land is made thesubject-matter of the action. In such a case the procedure prescribed bysection 25 must be followed. The Act makes no provision for excludingfrom the action any part of the land to which the action relates. Ifallotments of land of which some of the parties to the action are soleowners are included by the plaintiff in his action the only way of dealingwith them under the scheme of the Act is by declaring in both the inter-locutory and final decrees such parties entitled to those separateallotments.”
It has hitherto been the practice of the Courts to exclude a separateland wrongly included by a plaintiff as being part of the corpus of thepartition case. However, in view of the far-reaching consequences ofthe ruling in Luinona’s case it is necessary to consider whether the Courtshould investigate the title of such separate allotments. An examinationof some of the provisions of the Partition Act becomes relevant.
The Partition Act, section 2, is as follows :—
“ Where any land belongs in common to two or more owners, any one ormore of them may institute, an action for the partition or sale of theland in accordance with the provisions of this Act.” It would appearthat by this section the courts are empowered to entertain partitionactions only in respect of lands which are co-owned. Even prior to thisAct the Courts regarded “ with strong disapproval any attempt to usethe Partition Ordinance for the purpose of dealing in an action withdistinct portions of land in which the shareholders and the interests arenot the same.” (per Bertram, C.J., in Banda v.'Weerasekera2).
Section 3 sets out the manner in which a plaint should be presentedin the appropriate Court, section 4 deals with the requisites of the plaint,section 5 sets out the persons who have to be made parties, section 6
1{1958) 60 N. L. R. 346.
*{1921) 23 N. L. R. 157 at p. 159.
TO
TAMBIAH, J.—Hevavitharana v. Themis de Silva
provides for the registration of a lis pendens, section 7 specifies the conse-quences of the failure to comply "with section 4, 5 or 6, and section 8 andthe succeeding sections set out the procedure to be followed in partitioncases. The Court has to issue a commission to the surveyor to make apreliminary survey of the land set out in the plaint (see section 16). The‘surveyor has to make the survey and furnish a report in which he mustset out the particulars specified in section 18 of the Act. Where there isa dispute regarding the corpus of the partition, special provisions are madeby section 23 (1) which is in the following terms :
“ Where a defendant in a partition action avers that the landdescribed in the plaint is only a portion of a larger land which should■ have heen made the subject-matter of the action or that only a portionof the land so described should have been made such subject-matter, theCourt may od such terms as to the deposit or payment of costs of surveyas the Court may order, issue a commission to a surveyor directing himto survey the extent of land referred to by that defendant.”
• Section 23 (3) is as follows :—
..“ Where a survey made under a commission issued under sub-section
of this section discloses that the land described in the plaint is onlya portion of a larger land which should have been made the subject-matter of the action, the Court shall specify the party to the actionby whom, and the date on or before which, an application for the*'• 8 registration of the action as a lis pendens affecting that larger land shallbe filed in Court, and the provisions .of sections 6, 8 (a) and 11 shall‘ apply to that application.”
The Act imposes certain duties on the parties to the actionspecified by the Court under section 23 (3) of the Act (see section 23 (4) ).The Act also lays down procedure to be followed where on the applicationof the defendant, the Court finds that a larger land has to be the subject-matter of the partition. Although section 23 (1) deals with a case wherea. plaintiff has included in his plaint a larger corpus than the one whichis the subject-matter of the partition action, the Act has not expresslystated that the Court has the power not to exclude such a lot. Section26 sets out the powers of the Court in entering an interlocutory decreeas follows, *1 •/
: “ 2fi(l). At the conclusion of the trial of a partition action, oron such later date as the Court may fix, the Court.shall pronouncejudgment in open Court, and the judgment shall be dated and signed- . by the judge at the time of pronouncing it. As soon as may be after the•* judgment is pronounced, the Court shall enter an interlocutory decree" :in accordance with the findings in the judgment, and such decreeshall be signed by the judge.”
TAMBIAH, J.—Hevavilharana v. Themis de Silva
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** 26 (2). The interlocutory decree may include one or more of the
following orders, so however that the orders are not incorisistent with-
one another :—■
(а)order for a partition of the land ;'♦
(б)order for a sale of the land in whole or in lots ;
order for a sale of a share or portion of the land and a partition of
the remainder ;
order that any portion of the land representing the share of any
particular part only shall be demarcated and separated from the
remainder of the land ;'
order that any specified portion of the land shall continue to belong
in common to specified parties or to a group of parties ; –
(/) order that any share shall remain unallotted.”
Section 26 (2) does not exhaust the powers of the Court,, since thewords of the sub-section show that the interlocutory decree contemplated,by it “ may include ” one or more of the remedies set out there. . Theuse of the words ‘‘may include ” suggest that the orders specified in thesub-section are not exhaustive. Thus although there is no provision jnsection 26 to dismiss an action, the Court’s power to do so cannot bequestioned.
There is no provision in the Partition Act that the Court is obligedto make any of the orders set out in section 26 (2), in respect of the landthat is described in the plaint. Nor is there any provision in the Actproviding for the declaration of title to a land solely owned by a person,which has been wrongly included in the corpus sought to be partitioned.In such cases the practice hitherto has been to exclude the land whichis outside the subject-matter of the partition action and which isproved to have been the property of a person who is not a party to theproceedings. It is not uncommon for a plaintiff to include small portionsof land in the corpus belonging to other persons. In all such cases if theCourt has to adjudicate also on the title of the owners of those lands,then the Court will be obliged to investigate the title of lands which donot come within the purview and scope of action 2 of the Partition Act.Further, if the Court has to examine the title of persons whose lands havebeen wrongly included in the corpus, great inconvenience and hardshipmay be caused to persons who may be quite content to possess suchlands in common or, if it happens to be the land of a single individual,to possess it by himself. In our view it is not the intention of the legis-lature in passing the Partition Act that the Court should partition anylands other than those that came within the ambit of section 2 of theAct.
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TAMBIAH, J.—H evavitharana v. Themis de Silva
As section 26 does not exhaust all the orders which a Court could make,in our view the Court has the inherent power, under section 839 of theCivil Procedure Code, to make an order excluding a lot which has beenwrongly included in the corpus. Therefore we respectfully differ fromthe ruling in Luinona’s case (supra) which is not binding on us. In thisconnexion the following observations of Mahmood, J., in NarsinghDas v. Mangal Dubey1 are apposite :—
“ Courts are not to act upon the principle that every procedureis to be taken as prohibited unless it is expressly provided for by theCode, but on the converse principle that every procedure is to beunderstood as permissible till it is shown to be prohibited by the law.As a matter of general principle prohibitions cannot be presumed.”
Under the Partition Ordinance No. 10 of 1863, now repealed, thisCourt has recognised the procedure of reducing the corpus in the partitionsuit. (See Sedohami v. Mahcnnadu Ali2.)
We would therefore set aside the order of the learned District Judge anddirect him to proceed with the partition of the lots A—D in the planfiled of record, and to exclude the other lots. The plaintiff will not beentitled to the costs of this appeal.
L. B. de Selva, J.—I agree.
Order set aside.
i (1883) 5 Allahabad 163 at p. 172.
8 (1896) 7 N. L. R. 247 at 260.