027-NLR-NLR-V-74-J-.-A-JANE-NONA-Appellant-and-N.-L.-DINGIRI-MAHATMAYA-et-al-Respondents.pdf
SIRIMAXJE, J.—Jane Nona r. Dingirimahatmaya
105
1968Present: Sirimane, J., and de Kretser, J.
J. A. JANE KONA, Appellant, and N. L. DT.XGIRI-MAIIATMAYA ct al., Respondents
S. C. 570jCC {F)—D. O. Avissaucl/a, 9745jPPartition action-—Plaintiff's title—acquirement of a full and comprehensive pedigree.
In a partition action tho plaintiff must sot out his titlo fully. “ It is thoduty of a plaintiff in a partition action to set out to tho host of his knowloilgoami ability a full and conijirohonsivo pedigree showing tho devolution of titlowith roforonco to all tho deeds of sale on which titlo is allogod to havo passed.In view of tho very far reaching consequences of a clccroo umlor t.ho PartitionAct, a Court should not assist a plaintiff who eithor through carolossncss orindifference docs not place ljoforo tho Court ovidenco which should bo availableto him. ”
Appeal from a judgment of the District Court, Avissaivclla.Frederick IF. Obcycsclcre, for tho 1st defendant-appellant.Ralph de Silva-, for the plaintiff-respondent.
Cur. ady. vail.
July 10, 196S. Stuimaxk, J.—
This was a partition action for the land depicted in Plan (PI) whichthe plaintiff called “ Berennewatta ”, "presently known as ‘Pahala-watta ’ ” according to the plaint.
I must state here in view of certain submissions made in the course ofthe appeal, that it is the duty of a plaintiff in a partition action to set outto the best of his knowledge and ability a full and comprehensive pedigreeshowing the devolution of title with reference to all the deeds of sale onwhich title is alleged to have passed. In view of the very far reachingconsequences of a decree under the Partition Act, a Court should notassist a plaintiff who either through carelessness or indifference does notplace before the Court evidence which should be available to him.
The plaint in this case averred that the original owners were Sima andSethu. Sima left 4 children, and the plaintiff claimed certain undividedshares under two of the children, basing his claim on 2 deeds, P2aml P3,which referred to the land as “Berennewatta The other two children—the p'.aint averred—“are alleged to have sold” to two other p?rsonswho “are alleged to have sold ” to the 1st defendant. Sethu’s 1/2share is also "alleged to have sold” to Thenharuy, who in turn is “allegedto have s.olcl” to tho 1st defendant. One can hardly describe this as asatisfactory statement of the devolution of titlo.
106
SlitIMANT3, J.—Jane Nona v. Dingirimahaimaya
The 1st defendant filed answer denying that the land was called“ Bcrcnnewatta ”—that the deeds pleaded by the plaintiff were notacted upon in relation to the land surveyed, and that the plaintiff did nothave even a day’s possession of the corpus. She claimed the entireland shown in PI and another portion to the West shown as Lot 2 inher Plan 1D1 on an entirely different title and on prescriptive possessionIt is idle therefore for the plaintiff to pretend that he did not realisethe importance of proving (if such was the case) that the 1st defendant orher predecessors had purchased from persons set out in his pedigree.
The 1st defendant pleaded that one Roslyn Koch and another werethe original owners of the entirety depicted in Plan 1D1, that theypossessed it as a separate entirety from 192G to 1912 and that they soldthat entirety on 1D2 of 1942 to C. M. G. Fernando and F. E. Fernando,who on 1D3 of 1951 sold to M. de Mel and Mrs. 13. M. do Mel, who on1D4 of 1952 sold to her. She said that she herself possessed the landsince 1943 under her pi-edcccssors in title and continued to do so aftershe purchased from them.
. The case had come up for trial on 7.3.GG, and the point of contest waswhether the 1st defendant was entitled to the entirety. The plaintiffgave evidencer-' He made no effort to show that the 1st defendant orany of her predecessors in title had purchased from any person or personsset out in his pedigree. In the course of the plaintiff’s evidence it wasfound that two of theplaintiff’s sisters to whom lie had not allotted rightsin the pedigree were entitled to rights if that pedigree was correct, andso the case was put off.
On the next trial date, some 7 months later, the plaintiff gave evidenceagain. Still he made no effort whatsoever to show that the 1st defendant'srights to this land (which he conceded) were in any way connected withthe pedigree he put forward. Indeed his evidence was even morevague than before. He said nothing about two of the children of thealleged 1/2 share owner Sima, and in regard to the other alleged ownerof 1/2 share Sethu, he said that- those interests devolved on the 1stdefendant ”.
I must say that even in an uncontcsted case this evidence of devolutionof title can hardly be considered sufficient on which to base a decree.
In the course of the 1st defendant’s evidence, after setting out hertitle and stating that she possessed the entire corpus from 1943, she alsosaid that there had been some " amicable division ” between RoslynKoch and the plaintiff as a result of which Koch and his successors intitle possessed the entire land surveyed, and the plaintiff possessed outsideit to the cast. This statement cannot be made use of to supply- deficienciesin the plaintiff’s case and advance an argument that Roslyn Koch andthe plaintiff are therefore co-owners of the corpus surveyed.
Wijclunye v. Pcrera
107
– In regard to possession one need not look be'ond the plaintiff’s ease.He called one witness who admitted that he knew nothing of the landafter 1910. Hi3 evidence therefore does not help the plaintiff in thecontest against the defendants.
In cross-examination the plaintiff said at one stage that the land was apart of Pindcniya Estate owned by Mr. and Mrs. Koch, that thereafterthe land and the Estate devolved on the Fernandos, and that thereafterthose two sold to Mr. and Mrs. dc Mel. He also said that the 1st defen-dant’s son built the house on the eastern side of the land in 1953, andwent on to say that the 1st defendant camcto resideon this land a longtime before that—when the land was possessed by Mr. and Mrs. dc Mels’predecessors. lie then went on to say that after the 1st defendant cameto reside on the land she enjoyed the entirely and gave him no produce.
The District Judge in dealing with the title said, It is possible thatthe ICochs had purchased the 3/4th share from the heirs of Sethu and 'Sima ”—a most dangerous assumption in a partition case without aniota of evidence to support it.
In regard to possession he said, “ However, possession has been on thebasis that they (i.e., the Kochs) were entitled to a 3/4th share at leastas far back as 193S This is a serious misdirection on the evidence ledin the case.
The point in dispute should have been answered in favour of the 1stdefendant.
The appeal is allowed, and the plaintiff’s action is dismissed withcosts both here and below.
de Khetseb, J.—I agree.
Appeal allowed.