032-SLLR-SLLR-2005-V-3-DIAS-vs.-YASATILAKA-AND-OTHERS.pdf
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Dias vs Yasatilaka and Others
169
DIASVSYASATILAKA AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
EKANAYAKE, J.
CA 897/92 (F).
DC GALLE 9396/P.
MARCH 4, 2005.
Partition Law, No. 21 of 1977 ■ Partition Act, section 23(1) – Us pendensregistered in respect of a larger land?-Corpus not properly identified – Shouldthe judgment be allowed to stand?
The lis pendens has been registered in respect of a larger land which isinclusive of an extent acquired by the State. The Court allowed the partitioningof the larger land.
HELD:
The lis pendens has been registered in respect of a larger land and notin respect of the corpus. The trial judge has not properly identified thecorpus. 2
2.The impugned judgment cannot be allowed to stand – the plaintiff’saction has to be dismissed.
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APPEAL from the judgment of the District Court of Galle.
Cases referred to ;
Grampy Appuhamy vs. Monis Appuhamy 60 NLR 337.
Dr. Jayantha Almeida Gunaratne, PC for 3rd defendant-appellant.Manohara R. de Silva for plaintiff-respondent.
Athuia Perera for 1st defendant-respondent..
Cur. adv. vult.
March 04,2005.
CHANDRA EKANAYAKE, J.This is an appeal preferred by the 3rd Defendant-Appellant (hereinaftersometimes referred to as the 3rd Defendant), lo set aside the judgment ofthe learned Additional District Judge of Galle dated 5.11.1992 and theinterlocutory decree entered in the case, to declare that the 3rd Defendantis entitled to the corpus and to have the action of the Plaintiff dismissed.
The Plaintiff – Respondent (hereinafter sometimes referred to as thePlaintiff) instituted this action in the District Court of Galle to partition theland called Pambaketiye godawatte alias contiguous lots 3, 4, 5 (after are-survey of contiguous lots 3 and 4) of Pambaketiyegodawatte which ismorefully described in paragraph 2 of the plaint dated 03.01.1995 in extent4 Acres 3 roods 12.5 Perches (4A., 3R., 12.5P) which being the extentafter excluding an extent of 5 Acres 4.9 Perches (5A., OR., 4.9P) which
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was said to have been acquired by the State from the larger land of 9Acres 3 Roods 17 Perches (9A., 3R., 17P). According to the pedigreepleaded in paragraphs 3 to 9 and on acquistion of prescriptive rights asaverred in paragraph 10 of the plaint, the Plaintiff had prayed for an order topartition the above mentioned corpus. It has to be observed that byparagraph 9 of the plaint, Plaintiff has claimed that he and the 1 st Defendantwere entitled to an undivided 1/2 share each from the corpus.
The 3rd Defendant and the 2nd Defendant being father and son havingclaimed rights before the Court Commissioner, Sisira Amendra (L. S.)when carrying out the preliminary survey, were made 3rd and 2nd Defendantsin the case subsequently. The 1st Defendant by his statement of claimdated 21.05.1987 whilst admitting the pedigree and the share shown tohim in the Plaint prayed for an order making him entitled to the aforesaidshare from the corpus together with what was claimed by him at thepreliminary survey.
The 2nd and 3rd Defendants by their joint statement of claim dated
whilst denying the averments in the plaint and the statementsof claim of the other Defendants which are inconsistent with the avermentsin their statement and the contents of the preliminary plan bearing No. 62and the report annexed had prayed for a dismissal of the Plaintiffs actionand for a declaration that the 3rd Defendant is entitled to the land proposedto be partitioned. It was further contended by the 2nd and 3rd Defendantsinter -alia that, neither the Plaintiff nor the 1 st Defendant has possessedthe land proposed to be partitioned and that the 3rd Defendant had acquired
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prescriptive title having independent and uninterrupted possession againstthe Plaintiff and the 1 st Defendant for well over 18 years.
Case had proceeded to trial on points of contest 1 and 2 raised onbehalf of the Plaintiff; and 3 and 4 raised on behalf of the 2nd and 3rdDefendants. An admission had been recorded at the commencement ofthe trial to the effect that the corpus was the land depicted in plan No. 62of S. Amendra (L. S.) However the 2nd and 3rd Defendants at the conclusionof the examination-in-chief of the Plaintiff had resiled from the saidagreement (at page 150 of the brief). It has to be observed that no point ofcontest had been raised with regard to what the corpus was. However thelearned Judge in his judgment has arrived at the finding that the corpus isthe land depicted as lot 1 in the preliminary plan No. 62 (X).
Plaintiff’s case had been concluded with the evidence of the Plaintiff,one Malini Sirimathie (an officer from the Land Acquisition Department ofthe Galle Kachcheri), one M de Silva (an Officer of the National HousingDepartment), one Marthenis De Silva and Sisira Amendra (CourtCommissioner). On behalf of the 2nd and 3rd Defendants, SamarapalaSimon, Nandasiri, Diyonis and one Somadasa had testified. After filing ofwritten submissions by the parties who contested the case the learnedJudge had pronounced the impugned judgment and ordered to partitionthe land according to the shares given therein viz – undivided 1/2 shareeach to the Plaintiff and the 1st Defendant and the improvements andplantation also to go according to the judgment. This is the judgment nowappealed against.
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At the hearing of this appeal all the parties had agreed to resolve thesame by way of written submissions and same have been tendered by thePlaintiff – Respondent and 1 st Defendant – Respondent. The 3rd Defendant- Appellant had agreed to abide by the written submissions initially filed inthe case.
What needs consideration first is whether a lis pendens was correctlyregistered in respect of the land depicted in the preliminary plan. Accordingto the judgment the learned Judge had concluded that the corpus to bepartitioned was the land depicted as lot 1 in the preliminary plan X. But ithas to be observed that the lis pendens in this case has been registered inrespect of a larger land in extent 9A., 3R., 7 P which is inclusive of theextent of 5A., OR., 4.9P which was the portion said to have been acquiredby the State as seen by document marked P 11. Furthermore the plaintdid not contain a schedule but the land sought to be partitioned wasdescribed in paragraph 2 of the plaint. That description was one giving theboundaries in respect of the said larger land, neither the boundaries of theportion which has to be partitioned nor the portion of the land said to havebeen acquired by the State was specified. When the learned Judge allowedthe partitioning of the land depicted as lot 1 in plan X it was inclusive of theportion which was acquired by the State. This definitely is another aspectof the matter which needs consideration. In the light of the above it hasbecome crystal clear that the lis pendens which was registered in thecase was in respect of a larger land but not in respect of the correctlyidentified corpus.
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Just because Mr. Amendra (L. S) was not cross examined by the defenceand that there had been no objection by anybody when carrying out thesurvey the learned Judge cannot conclude that the corpus was lot No. 1 inPlan X. In my view it is an erroneous conclusion. According to the planmarked X and report marked X1 both had been prepared without anyreference being made to a survey plan and/or to the portion acquired byState. Therefore it is clear that there had been no material before thelearned Judge to arrive at the finding as to what the corpus was. Accordinglyin those circumstances I conclude that the learned Judge had erred whenhe decided’that the corpus was the land depicted as lot 1 in plan X. In thiscontext I have considered the principle of law offered in the case of BrampyAppuhamy vs Mortis Appuhamy<’> In the above mentioned case the corpussought to be partitioned was described in the plaint as a land about 6acres in extent, and a commission was issued to a surveyor to survey a
It has to be observed that the learned Judge in his judgment has arrivedupon the finding (at page 311) that the corpus is the land depicted as lotNo. 1 in preliminary plan X. The Learned Judge has stated to the followingeffect at pages 310 and 311 of the brief:
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land of that extent. The surveyor, however, surveyed a land of only 2 Acresand 3 Roods. Interlocutory decree was also entered in respect of a land 2Acres and 3 Roods in extent without any question being raised by any ofthe parties as to the wide discrepancy between the extent given in theplaint and that shown in the plan made by the surveyor. None of thedefendants had averred under section 23(1) of the Partition Act that only aportion of the land described in the plaint should be made the subjectmatter of the action. It was held inter-alia that the Court acted wrongly inproceeding to trial in respect of what appeared to be a portion only of theland described in the plaint”. In the instant case too the learned Judge hasproceeded to trial having determined the corpus as lot 1 in preliminaryplan x which being a land less in extent to what was described as theland proposed to be partitioned in paragraph 2 of the plaint. This alsobecomes a cardinal error committed by the learned Judge in ordering apartition in respect of the land depicted in plan x.
For the above reasons my considered view is that the impugned judgmentcannot be allowed to stand, and the same has to be set aside. Further Iconclude that the above grounds are sufficient to dismiss Plaintiffs action.The need does not arise to consider the merits of the 3rd Defendant’sprescriptive claim.
Accordingly, the appeal is allowed with costs fixed at Rs. 10,000. Thejudgment of the learned Judge dated 05.11.1992 is hereby set aside andthe Plaintiff’s action is dismissed with costs. The Learned Additional DistrictJudge is directed to enter decree accordingly.
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The Registrar of this Court is directed to forward the record in Case No.9396/P to the respective District Court forthwith.
ANDREW SOMAWANSA, J(P/CA)-1 agree,Appeal Allowed.
Plaintiffs action dismissed.