028-SLLR-SLLR-2002-3-GUNAWARDENA-v.-RAN-MENIKE-AND-OTHERS.pdf
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Gunawardena v. Ran Menike and Others
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GUNAWARDENA
v.RAN MENIKE AND OTHERS
COURT OF APPEALWEERASURIYA, J. (P/CA) ANDDISSANAYAKE, J.
CA NO. 808/93 (F)
DC RATNAPURA NO. 2822IPMAY 18,
JUNE 22, ANDJULY 19, 2001
Partition Action – Judgment based on a compromise – Validity – Civil ProcedureCode,- sections 91 and 408 – Strict compliance necessary.
Held:
Where there has been a settlement or compromise it must be in strictcompliance with the provisions of section 91 and section 408 of the CivilProcedure Code.
It is possible for parties to a partition action to compromise their disputesprovided the court has investigated the title of each party and satisfieditself as to the respective rights and allotment of shares upon thecompromise reached by parties.
APPEAL from the judgment of the District Court of Ratnapura.
Cases referred to:
People's Bank v. Gilbert Weerasinghe – (1986) 2 CALR 260.
Kumarihamy v. Weragama – 43 NLR 265.
Rosalin v. Maryhamy – (1994) SLR 262.
Punchiban'ta v. Punchibanda – 42 NLR 382.
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W. Dayaratne with Lasitha Kaftuwanarachchi for plaintiff-appellant,ft Dabare for 7th defendant-respondent.
Ranjan Mendis for 1st, 3rd, 4th and 5th defendant-respondents.
Daya Guruge with Senarath Weerakoon for 2nd and 10th defendant-respondents.Raja Peiris for 21st, 22nd, 24th, 28th, 31st and 32nd defendant-respondents.
Cur. adv. vuit.
October 05, 2001WEERASURIYA, J. (P/CA)
This is an appeal arising from the judgment dated 14. 12. 1993,ordering an interlocutory decree to partition the contiguous landscalled Maha Kumbura, Polwatte Kumbura, Dobagahakumbura,Muhandiramlagewatte, Pahalawatte and Weliwatte morefully describedin the schedule to the plaint and depicted in preliminary plan No. 379,dated 18. 05. 1980, made by licensed Surveyor M. S. Diyagama.
At the hearing of this appeal, learned Counsel for 1st, 3rd, 4thand 5th defendant-respondents raised a preliminary objection thatsince this judgment was based on a compromise arrived at by theparties, there is no direct right of appeal. It is necessary to deal withthis matter at the outset.
In the case of The People's Bank v. Gilbert Weerasinghe<1> it washeld that an agreement must be expressed in clear and unambiguousterms to have a binding effect on the parties to give it the effect ofamounting to an implied waiver of the right of appeal.
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Therefore, it is vital in the first instanife to ascertain whether therewas a settlement by all the parties who have a right to this land onclear and unambiguous terms to have a binding effect on the parties.
This case was taken up for trial on 11. 12. 1991 and at theconclusion of the evidence of Don Piyadasa Rupasinghe, a date was 20nominated for tendering of the documents and the schedule of shares.
It would be appear that in the absence of any points of contest andany cross-examination of the evidence of Rupasinghe, that the partieswho were present on this day had entered into a compromise to settleall their disputes. Therefore, it would be legitimate for one to assertinitially that the judgment against which this appeal has been preferred,in fact was a consent judgment. But, however, the following materialwould counter such a proposition:
The 3rd, 6th, 8th, 10th, 11th, 12th, 15th, 16th, 17th, 18th,
19th, 20th, 23rd, 25th, 26th, 27th, 29th and 30th defendant- 30respondents were absent and unrepresented.'
However, out of these defendant-respondents only the 3rd, 8th,10th, 11th, 12th, 15th, 16th, 19th, 20th and 27th defendant-respondents had filed their statements of claim.
It is necessary to state that even the parties who were in defaultwithin the meaning of section 25 (2) of the Partition Law are entitledto claim their rights disclosed in the plaint and produce the title deedsin proof of that. Therefore, there was a serious lapse on the partof the District Judge to permit a compromise without participationof all the parties.«
The Derson who gave evidence was Don PiyadasaRupasinghe the husband of the plaintiff-appellant. The questionmay arise whether he had the express authority of the
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plaintiff-appellant t& effect a compromise on her rights inthe absence of proof that she was present in Court andagreed to diminution of her rights on that day. Herentitlement of 1/3 undivided rights on deed P9 had beenreduced to 11/60.
There has been a failure to mention the terms of thecompromise, namely in what manner and to what extent the sorights were reduced to bring about a resolution of thedisputes. The plaintiff-appellant is entitled to complain thatwithout her participation her rights had been bargainedwithout reaching a consensus with all the parties who areentitled to rights on this land.
The case of the 7th defendant-appellant stands on adifferent footing, namely that there was no indication of theconsent of the attorney-at-law in respect of a diminution ofhis (7th defendant-appellant's) entitlement.
The plaint disclosed 11/18 undivided rights to 1st to 9th 60defendant-respondents, but at the purported settlement,
7th defendant-appellant's rights were completely disregarded.One fails to understand the rationale of foregoing the entirerights of a party in a compromise, when there was no mention
of any arrangement to that effect between the 7th defendant-appellant and others.
It would be significant to note that several parties had appearedsubsequently and made their claim without a reference to a compromisehaving been effected.
The lapse of this magnitude on the part of the trial Judge amounts toto an illegality, as opposed to a more irregularity. In the circumstances,
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this settlement did not have the binding Effect on the parties to giveit the effect of amounting to an implied waiver of the right of appeal.It is possible for parties to a partition action to compromise theirdisputes provided the Court has investigated the title of each partyand satisfied itself as to their respective rights and allot shares uponthe compromise reached by the parties.
In Kumarihamy v. Weragama it was held that there is nothingto prevent the Court allowing parties to compromise their disputesprovided the Court has investigated the title and has been satisfiedthat the parties before it alone have interests in the land to bepartitioned and that once such a compromise is allowed the partiesare bound by its terms.
It is noteworthy that where there has been a settlement orcompromise it must be in strict compliance with the provisions ofsections 91 and 408 of the Civil Procedure Code.
In Rosalin v. Maryham^ it was held that when an agreement isentered into the Court has to be satisfied only as to whether theagreement is between all the parties having interests in the land soughtto be partitioned. In the event of such agreement the respective shareor interest to be given to each party is based upon the compromisethat is reached and not on an examination of title.
The unsatisfactory manner in which settlements are effected incases was the subject of comment by Soertsz, J. in Punchibanda v.
(4)
Punchibanda in the following manner :
"This court has often pointed out that when settlements,adjustments, admissions, &c. are reached or made, their natureshould be explained clearly to the parties and their signatures orthumb impressions should be obtained. The consequence of this
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obvious precaution not being taken is that this court has its work ioounduly increased by wasteful appeals and by applications beingmade to it for revision or restitutio in integrum."
The manner in which the trial Judge has proceeded to effect asettlement of the disputes in this partition action is far from satisfactory.There has been failure to adhere to basic fundamentals in effectinga settlement and the adjustment of claims.
For the foregoing reasons, I set aside the judgment of the learnedDistrict Judge dated 14. 12. 1993 and order a fresh trial. The partiesmust bear their costs in this appeal. This case is remitted to the DistrictCourt for a trial de novo.no
This appeal is allowed subject to the above conditions.
DISSANAYAKE, J. – I agree.
Appeal allowed.