GOLAGODA v. MOHIDEEN

023-NLR-NLR-V-40-GOLAGODA-v.-MOHIDEEN.pdf


92
FERNANDO A.J.—Golagoda v. Mohideen.
1937Present: Moseley J. and Fernando A.J.
GOLAGODA v. MOHIDEEN.
294—D. C. Kandy, 40,183.
Partition action—Decision as to title before interlocutory decree—No right of
appeal—Investigation of title by Court.
Where in a partition action an order is made in regard to title beforeinterlocutory decree the party affected by the order may appeal whenthe interlocutory decree is in fact entered.
Ferdinandes v. Don Davit (7 N. L. R. 216) followed.
The Court should not enter a decree in a partition action unless it isperfectly satisfied that the persons in whose favour it makes the decreeare entitled to the property.
Peiris v. Perera (1 N. L. R. 362) followed.
PPEAL from-a judgment of the District Judge of Kandy.
N. E. Weerasooria (with'him H. A. Wijcmanne), for added defendant,appellant.
C. E. S. Perera (with him P. A. Seneratne), for plaintiff, respondent.October 25, 1937. Fernando A.J.—
The plaintiff filed this partition action in September, 1930, claiming forhimself a half share of the land and of the houses standing thereon, andhe allotted the remaining half share to the first, second and third defend-ants. On July 18, 1933, the added defendant, the Basnayake Nilameof the Maha Dewale, Kandy, filed his answer objecting to partition, andalleging that the land sought to be partitioned was a paravane pangua ofthe Natha Dewale. On February 13, 1936, when the case came on fortrial,, the learned District Judge decided to try the first issue which is inthe following terms : Whether the land in dispute falls within the templeplan (2) if so, is the action maintainable ? Counsel for the plaintiff statedthat he could not go behind the temple plan which had already beenproduced and marked X. Another issue was then raised (3) is the landsought to be partitioned subject to services to the Natha Dewale ?
FERNANDO A.J.—Golagoda v. Mohideen.
93
No evidence was called by any party except the plaintiff, and theProctor for the added defendant contended himself with producing thetemple plan and the Service Tenure Register. In the course of hisjudgment, the learned District Judge came to the conclusion that theportion in dispute fell within the temple plan, and that the portion indispute was known as Galahitiyawa kumbura. He then proceeded tosay that there was an issue which would probably arise in the action asto whether the plaintiff and the defendants could acquire a title byprescription against the Dewale, and whether in fact they had so acquireda title.
With regard to the issues as to the services to which the land was saidto be subject, he held that on the materials before him it was impossiblefor him to say that the portion in dispute was liable to Service Tenure.At the same time, he stated that it may well have belonged to the temple,and yet may not have been liable to services. In answering the issueshe appears to have come to the conclusion that the action for partitionas such was maintainable. The trial then came on again on October 2,and on the conclusion of the proceedings of that date, the learned DistrictJudge held that the plaintiff and the defendants were entitled to the landin certain shares and dismissed the claim that had been made by theintervenients who are persons other than the added defendant.
The added defendant appeals from this decree and a preliminaryobjection was taken to the appeal. That objection was that the appealwas filed only on October 14, 1936, while the order that affects the claimof the added defendant was made on March 30, 1936. I might herestate that in making the order on October 2, 1936, the learned DistrictJudge himself remarks that if the added defendant files an applicationhe will have to return the plan, so that he himself appears to have con-templated that it was open to the added defendant to appeal, although hedid not appear to have taken any prominent part in the proceedings ofthat date.
It is clear quite apart from this observation that the appeal is in order.In Ferdinandes v. Don Davith1, it was expressly held that an appealshould not be entertained against the determination on the titles ofparties to a partition action made prior to the partition decree. Lawrie J.there considered se.ction 19 of the Partition Ordinance and stated thatalthough “ a decision with regard to a contest between two particularparties is an appealable order, we are in the habit of refusing to exercisejurisdiction and to entertain appeals against judgments which are Rotconclusive between parties to the suit ”. It is clear from this decisionthat a party with regard to whose title an order has been made prior tothe date when the Interlocutory decree is entered, may appeal againstthe Interlocutory decree when that decree is in fact entered by theDistrict Court.
With regard to the merits of the appeal, it is clear to my mind that theorder made by the learned District Judge cannot stand. The proceedingsof October 2, 1936, start with a statement of what is in dispute between
1 7 N. L. R. 216.
94
FERNANDO AJ.—Golagoda o. Mohideen.
the plaintiff and the- original defendants and with a settlement thatappears to have been arrived at between these parties. The evidencerecorded is the evidence of the plaintiff and the first defendant. Theplaintiff had purchased a share in the land in 1930 and was not able tospeak to any facts before that date. He produced certain documentsone of which was a conveyance in his favour. He also produced copiesof certain prior documents, the originals of which were not produced, andtheir non-production was not accounted for in any way. The evidencemay be summarized shortly to say. “ I bought in 1930. I also producecopies of certain prior deeds which appear to show the previous history ofthe land ”. The first defendant merely stated that the heirs of the thirddefendant were the substituted defendants. She then added that beforeshe became entitled, there'were four houses on the land, and that she hadtwo houses built. The question whether the land was the property ofthe Dewale, on whose behalf the added defendant had claimed, whetherthe land was of such a nature that title by prescription could be acquiredagainst the Dewale, whether in fact such a title had been acquired, andwhether in fact the land was liable to services to the temple appear tohave been lost sight of, and without reference to any of these questionswhich in his own opinion were relevant, the learned District Judgeproceeds to hold that the plaintiff and the defendants are entitled to theland.
It is hardly necessary to consider.the earlier authorities which have allbeen summarized in the case of Goonaratne v. The Bishop of Colombo ’.As Lyall-Grant J. said in the course of his judgment, “ it is the duty of theCourt before entering'a decree to satisfy itself that the parties appearingbefore it have a title to the land”. He quoted from the judgment ofBonser C.J. in Peris v. Perera *, where it was laid down that the Courtshould not enter a decree unless it was perfectly satisfied that thepersons in whose favour it makes the decree, are entitled to the property.-The Court should not regard these actions as merely to be decided onissues raised by and between the parties, and must satisfy itself .that theplaintiff has proved his title, and he must prove his title strictly ”. Inthe Full Bench case of Mather v. Thamotheram Pillai ,a it was laid downthat a paramount duty is cast by the Ordinance upon the District Judgeto ascertain who are the actual owners of the land before entering up adecree which is good and conclusive against the world.
For these reasons it is obvious that the Interlocutory decree entered bythe learned District Judge must be set aside. The appellant was a partyto the action and as I have already observed, he had the right to appealfrom the Interlocutory decree, although the order which affected, hisrights had been made at an earlier inquiry. I would accordingly setaside the Interlocutory decree entered, and send the case back for trialaccording to law. The plaintiff respondent will pay to the added defend-ant appellant his costs of this appeal.
Moseley J.—I agree.
Appeal allowed.
» S3 N. L. R. 337.* 1 N. L. R. 362." » 6 N. L. R. 246.