SOERTSZ A.C.J.—Hendrick v. GimaraJiamine.
1945Present: Soertsz A.C. J. and Canekeratne J.HENDRICK, Appellant, and GIMAR AH AMINE, Respondent.
72—D. G. (Inty.) Malar a, 14,800.
Partition—Scheme of Commissioner—Rival scheme by Surveyor—Remittal of thescheme to Commissioner to modify his scheme—Partition Ordinance,s. 5.
Where a scheme of partition submitted by a Surveyor is found to bebetter than that submitted by the Commissioner in the case, the propercourse to adopt would be to remit the scheme to the Commissionerappointed under section 5 of the Partition Ordinance with a directionto him to modify the scheme on the lines prepared by the Surveyor.
PPEAL from an order of the District Judge of Matara.
N.E. Weerasoaria, K.C. (with him G. J. RaruUunge), for the plaintiffand eighteenth defendant, appellants.
A. Rajapakse, K.C. (with him H. W. Jayewardene), for the seven-teenth, nineteenth and twentieth defendants, respondents.
November 7, 1945. Soebtsz A.C.J.—
The question, on this appeal, is whether the trial Judge -preferred ascheme of partition that was not satisfactory in comparison with thescheme the appellants desired to have adopted.
Ounawardene v. Baby Nona.
We have examined the two schemes and the distribution of the planta-tions and buildings, and we find that in respect of the distribution ofbuildings and plantations the scheme that commended itself to thetrial Judge is the better scheme. As he points out that scheme breaks upthe land into more satisfactory blocks than does the scheme of theCommissioner.
It is not correct to say that the lots given to the appellants consist ofentirely owita land. But as I observed in the case S. C. 27/D.C. (Inty.)Matara, No. 154/13,628* in which judgment was delivered today, theproper course for the District Judge to follow is to remit the case to theCommissioner appointed under section 5 with directions for him tomodify his scheme on the lines, more or less, of the scheme prepared bySurveyor Amarasekere and to submit it with a schedule of appraisement.It is undesirable and indeed irregular to substitute another Surveyorfor the Commissioner appointed by Court. I fix; costs payable to theseventeenth, nineteenth and twentieth defendants in respect of thisinquiry in the two courts at Rs. 52*50.
Cakbkbbatote J.—I agree.
HENDRIK , Appellant, and GIMARAHAMINE, Respondent