SA.NSONI, J.—Jayasuriya v. JJbaid
1957Present: Weerasooriya, J., and Sansoni, J.
G. A. D. P. DE S. JAYASTJRIYA et al., Appellants, and A. M. TJBAID,
8. C. 252—D. C. TangaUa, 113P
Partition action—Corpus—Duty of Judge to satisfy "himself as to its identity—
Preliminary plon^Proof thereof—Civil Procedure Code, ss. 428, 429, 432.
In a partition action there is a duty cast on the Judge to satisfy himselfas to the identity of the land sought to be partitioned, and for this purposeit is always open to him to call for further evidence (in a regular manner) inorder to make a proper investigation.
Any plans which the parties may seek, to put in evidence must be marked ifnecessary for their case, and duly proved, if objected to. Sections 428, 429 and432 of the Civil Procedure Code do not justify a preliminary plan made by aCommissioner after the plaint is £led and before summons is served on thedefendant being treated as evidence when it has not been marked and provedby the plaintiff.
<^^.PPEAL from a judgment of the District Court, TangaUa.
E. A. G. de'Silva, for defendant-appellant.
W. D. Gunasekera, for plaintiff-respondent.
Cur. adv. vnlt.
March 11, 1957. Sansont, J.—
The plan tiff brought this action for a partition of a land calledHabarakiriwannehena described as Lot 160/6 in T. P. 269370, and inextent 3A. 1R. 7P. He claimed 1 /2 share of the soil and plantations andallotted the other 1 /2 share to the 1st defendant.
The 1st defendant in his answer pleaded that the land in question wasa part of a larger estate of the same name which he and another hadpossessed for many years : and that at a partition of that estate a portionwithin which the land in dispute fell was allotted to the 1st defendant,Who later transferred this portion to his daughters the 1st and 2ndadded-defendants.
The trial of this action proceeded after certain matters in disputebetween the parties were recorded, but no specific issue was framedregarding the actual corpus to he partitioned. A preliminary plan hadbeen made on a commission issued by the Court after the plaint had been
SANSONI, J.—Jayasuriya v. Ubaid'
filed but before summons bad been, served on tbe defendant. Afterevidence was led on both sides, counsel for the 1st defendant and the 1stand 2nd added defendants addressed the Court. In the course of thataddress he pointed out that the preliminary plan had not been marked inevidence and proved. The plaintiff then moved to mark the plan, and.objection was taken to that step on the ground that the plan had to beproved and the surveyor tendered for cross-examination, and it was toolate for such a step to be taken.
The learned District Judge then made order that as the surveyor hadrefused to come to give evidence in this Court it was not likely that hewould be available in this case. As it was a partition action, he directed,the issue of a fresh commission to another Commissioner.
We do not know what reasons the Judge had for being so pessimisticabout obtaining the attendance of the first Commissioner. He has surely-underestimated the power of the Court to insist on the attendance of anofficer of the Court, for that is what the Commissioner was in this instance.The obvious step for the Judge to have taken was to summon the Com-missioner at his own instance in order that the preliminary plan mightbe proved in evidence. There is no question that there was a duty cast-on the Judge to satisfy himself as to the identity of the land sought tobe partitioned, and for this purpose it was always open to him to call forfurther evidence in order to make a proper investigation. In Thayal-nayagctm v. Kathiresapillai 1 Hutchinson, C.J., said
"In a partition action such as this is, I think that the judge haspower, and that in some cases it may be his duty, even after the parties-have closed their case, to call for further evidence. But if he does, hemust do it in a regular manner
The recent judgment of the Privy Council in Mohamedaly Adamjee v~Hadad Sadeen 2 draws attention again to the duty of the Court to makea full investigation as regards title and possession in a partitionaction.
Counsel for the plaintiff-respondent submitted before us that the pre-liminary plan could have been treated as evidence by the Judge eventhough it had not been marked and proved by the plaintiff and he reliedon sections 428, 429 and 432 of the Civil Procedure Code. He submittedthat the Commissioner in making the preliminary plan and report wasacting under sections 428 and 429 and that the Court was entitled undersection 432 to treat the report as evidence in the action. I do not agree,because there is authority against this view in the judgment of Layard,C. J., in Kasinather v. Sabhasivan s. The learned Chief Justice there heldthat section 428 contemplates a Commissioner being appointed for thepurpose of elucidating some particular matter in dispute, such matterbeing specified in tbe commission. Again, there is no evidence as such,taken by the Commissioner who made the preliminary plan. Another
1 (J910) 5 Balasingham., p. 10.8 (1956) 58 N. L. B. 217.
* (1905) 4 Tambyah Rep. p. 169.
SANSONI, J.—Jayasuriya v. Vjbaid
objection is that the Judge in this instance clearly did not choose to acton the plan and the report 'without examining the Commissioner as awitness, and he was quite entitled to take that course.
A fresh commission having been issued to another Commissioner, whoduly returned a plan and report to Court, the trial was resumed over ayear later. The new Commissioner was called to give evidence and heproduced his plan and report. It then transpired that the land whichthe plaintiff in fact wanted to partition was lot 1 but not lot 4 in the
T.P. No. 269370, and two other lots 2 and 3, which fell outside thatTitle Plan. As counsel for the defendant and the 1st and 2nd added-defendants did not take part in the further hearing, this very importantdifference between the corpus originally sought to be partitioned and thecorpus depicted in the second plan does not seem to have been broughtto the notice of the learned Judge. In bin judgment he seems to havebeen under the impression that the corpus sought to be partitioned wasalways that depicted in the second plan as lots 1, 2 and 3. He declaredthe plaintiff entitled to 1/2 share and the 1st defendant and 1st and2nd added-defendants to 1/2 share. The 1st defendant and the 1stand 2nd added-defendants have appealed against this decree.
It now becomes clear that the plaintiff himself was uncertain as towhat was the land of which he claimed 1 /2 share, and it is impossibleto say what view the Judge would have taken if the change in the corpushad been duly brought to his notice.
I think it is to be regretted that counsel for the contesting defendantschose not to take part in the further hearing and to assist the Court toarrive at a proper decision of the matters which the Court had to consider.It would have been far better if, having raised his objection to theprocedure which the Judge was adopting if he thought such procedurewas irregular, he had at the same time assisted the Judge in makinga full and proper investigation.
The plaintiff’s counsel has asked us to ignore the second plan and theevidence recorded at the adjourned hearing. I do not think we can dothat because it is evidence on which the Judge has acted to base hisfindings. Nor again can we act on the assumption that the Judgewould have arrived at the same findings if he had considered only thefirst plan made in this case. I think the only course open to us now isto set aside the judgment and decree and order a re-trial of this action,and I would only draw attention to the obvious requirement that anyplans which the parties may seek to pat in evidence must be marked ifnecessary for their case, and duly proved, if objected to.
. The costs of the arbortive trial and of this appeal will abide the result ofthe new trial.
Weerasoobiya, J.—I agree.
Case sent back for re-trial.
G. A. D. P. DE S. JAYASURIYA et al , Appellants, and A. M . UBAID , Respondent