028-SLLR-SLLR-1999-V-3-CHANDRASENA-v.-PIYASENA-AND-OTHERS.pdf
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Chandrasena v. Piyasena and Others
201
CHANDRASENA
v.PIYASENA AND OTHERS
COURT OF APPEAL
WIGNESWARAN. J„
JAYAWICKRAMA. J.
A. NO. 547/87 (F).
C. MATUGAMA NO. 966/P.
DECEMBER 18. 1998.
Partition Law – Civil Procedure Code -S. 114 (2)- Documents marked in evidence
– Part of the record.
The plaintiff-respondent instituted action to partition the land in dispute. District
Court did not grant shares to the defendant-appellant on the basis that he had
not tendered the deeds in proof of his title, though marked in evidence.
Held:
In a partition action it is incumbent on the Judge to investigate into titleof each party.
According to s. 114 (2) CPC – every document so proved/admitted shallbe endorsed with a number/letter, the Judge shall then make an entry onthe record to the effect that such document is proved/admitted, thedocument should then b.e filed as part of the record; there is a duty caston Court to take the documents tendered and marked to its custody andkeep them filed of record – documents marked become part of the record.
It is the duty of a trial Judge to direct parties after the trial to tender alldocuments to Court with a list attached before writing the judgment ; hehad failed to do so in this instance.
The original (marked) deeds tendered with the written submissions showthat the defendant-appellant is entitled to certain shares of the corpus.
APPEAL from the judgment of the District Court of Matugama.
Samantha Vithana for the 1st defendant-appellant.
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[1999] 3 Sri L.R.
Respondent absent and unrepresented.
Case referred to :
Podiraiahamy v. Ran Banda – [1993] 2 Sri LR. 26.
Cur. adv. vult.
March 2, 1999.
JAYAWICKRAMA, J.
This is an appeal from a judgment dated 17. 11. 87 by the DistrictJudge of Mathugama, wherein he has not granted shares to the 1stdefendant-appellant on the basis that the 1st defendant-appellant hadnot tendered documents V1, V2 and V3 in proof of his title.
The plaintiff-respondent instituted this action to partition the landnamed Badahelawatta described in the schedule to the plaint.
At the trial there were no disputes as to the identity of the corpus,pedigree nor the shares each party was entitled to. At the trial the1st defendant-appellant neither appeared in person nor was repre-sented by a counsel as there was no contest. The plaintiff gaveevidence which was unchallenged and he marked the necessarydocuments in proof of his title as well as the title of other defendantsincluding the 1st defendant-appellant. According to the evidence ofthe plaintiff the 1st defendant-appellant was entitled to shares upondeeds marked as 1V1 (No. 154 dated 03. 06. 66), 1V2 (No. 5391 dated25. 10. 80) and 1V3 (No. 253 dated 30. 09. 68). Even according toparagraph 24 of the plaint the 1st defendant-appellant was entitledto these shares.
The deeds marked as 1V1, 1V2 and 1V3 were not tendered toCourt, although they were referred to and marked in evidence by theplaintiff. Although the 1st defendant-appellant was entitled to shareson the strength of the above-mentioned deeds, the learned District
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Chandrasena v. Piyasena and Others (Jayawickrama, J.)
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Judge left these shares unallotted as the deeds were not tenderedto Court for its perusal.
In a partition case, it is incumbent on the Judge to investigate intotitle of each party before he arrives at a determination. According tosection 114 (2) of the Civil Procedure Code "Every document soproved or admitted shall be endorsed with some number or lettersufficient to identify it. The Judge shall then make an entry on therecord to the effect that such document was proved against or admittedby (as the case may be) the person against whom it is used andshall in such entry refer to such document by such number or letterin such a way as to identify it with the document so proved or admitted.The document shall then be filed as part of the record".
It was held in Podiralahamy v. Ranbanda(1) that "there is a dutycast on Court to take the document tendered and marked at the trialto its custody and keep them filed of record. Documents marked inevidence become part of the record".
As observed by Justice Senanayake in the above case in the instantcase too the learned District Judge had failed to give his judicial mindto the documents led at the trial. In the instant case, the only groundfor not allotting the shares of the 1st defendant-appellant was thatthe documents were not tendered to Court. It is the duty of a trialJudge to direct parties after the trial to tender all documents to Courtwith a list attached before writing the judgment. The learned DistrictJudge had failed to do so in this instance.
The learned counsel for the 1st defendant-appellant has tenderedthe original deeds marked as 1V1, 1V2, 1V3 with his written sub-missions. On a persual of these deeds referred to in the evidenceof the plaintiff, it is very clear that the 1st defendant-appellant is entitledto certain shares of the corpus. Hence, we hold that the 1st defendant-appellant should be allotted shares from the shares left unallotted inthe judgment. The learned District Judge in allotting shares to theparties had left unallotted 258 1/2 /504 shares. We make order that
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the 1st defendant-appellant be allotted 1/24+1/16+1/16+3/48+1/16thshares, ie 7/24th shares out of 258 1/2 /504 shares which were leftunallotted. In view of this order the shares should be now allottedas follows:
Plaintiff-163 1/2 /504
1stdefendant-147/504
3rddefendant-42/504
5thdefendant-14/504
6thdefendant-14/504
8thdefendant-12/504
Unallotted shares- 111 1/2 /504
504/504
We make order that the interlocutory decree be amended accord-ingly. Subject to the above variation of the shares, we confirm thejudgment. The appeal is allowed without costs.
WIGNESWARAN, J. – I agree.
Interlocutory decree amended.
Appeal allowed.