044-SLLR-SLLR-2004-V-1-JAYARATNE-AND-ANOTHER-v.-PREMADASA-AND-OTHERS.pdf
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JAYARATNE AND ANOTHERvPREMADASA AND OTHERSSUPREME COURTS.N. SILVA, C.J.
ISMAIL, J. ANDWEERASURIYA, J.
S.C.APPEAL NO. 20/2003
A.L.A. NO. 28/2002
C. RATNAPURA No. 940/P17 NOVEMBER, 2003
Partition – Preliminary survey discloses much larger land than claimed -Decree for the larger extent – Power of the court to order partition of the larg-er land and thereafter on a petition by strangers to vary the corpus to 30 acres- Court's power to give relief under section 48(4) of the Partition Law.
The original plaintiff filed an action for a partitioning of a land of 30 acres.The surveyor who did the preliminary survey produced a plan for 71 acres 1rood and 30 perches. At the trial judgment was delivered without a contestwhich was followed up with an interlocutory decree and further steps weretaken to partition the larger land, on a Final Plan.
Thereafter three persons who were not parties to the action applied to setaside the judgment or alternatively to vary the corpus to 30 acres and for rightsto that land.
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The surveyors had after the preliminary survey failed to seek directionsfrom court: and no steps to amend the plaint and lis pendens were taken.
Held:
The court had no jurisdiction to vary the judgment. The decree isfinal subject to appeal under section 48(1) and also revision or resti-tutio in integrum. The court may also vary the judgement under sec-tion 48(4) only in respect of the parties and in the limited circum-stances prescribed by that section of the law as amended by Act,No. 17 of 1997.
The proceedings of the District Court leading up to the trial andinterlocutory decree were bad and should be set aside.
APPEAL from the judgment of the Court of Appeal.
Case referred to:
Somawathie v Madawala (1983) 2 SRI LR 15Manohara de Silva for 2nd plaintiff-appellant.
The petitioners respondents and 3-8 plaintiff-respondents absent andunrepresented.
Cur.adv.vult
February 13, 2004WEERASURIYA, J.
The original plaintiffs instituted action in the District Court of 01Ratnapura seeking to partition the amalgamated lands calledGalinnhena, Abeyhena, Imbulehena, Pitaowitehena, Kehelella,Paragahahena and Kadjugahahena in extent about 30 acres.S.Ramakrishnan, Licensed Surveyor who was commissioned to dothe preliminary survey, surveyed an extent of 71 Acres 1 Rood 20Perches as forming the corpus and submitted his plan and reportbearing No.1020, dated 05.04.1976. The trial which commenced on29.06.1983 was concluded without a contest and the judgment wasdelivered on the same day allowing a partition of the land as depicted 10in the preliminary plan containing an extent of 71 Acres 1 Rood an 20Perches. The interlocutory decree was entered in terms of the judg-ment and a commission was issued to prepare the final plan and aftera long delay, Commissioner C.G. Punchihewa submitted his final planand report bearing No.487 on 05.03.1999. On 19.03.1999 the peti-tioner-respondent-respondents filed an application seeking to set
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aside the judgment and the interlocutory decree or in the alternativeto restrict the corpus to 30 acres. Learned District Judge after hearingthe parties, by his order dated 27.01.2000, allowed the application to
vary the judgment and the interlocutory decree by restricting the cor-pus to 30 Acres.
The Court of Appeal granted leave to appeal on the application bythe appellants and thereafter upon the conclusion of the hearing by itsorder dated 07.03.2002, dismissed the appeal and affirmed the orderof the District Judge.
The appellants sought special leave to appeal from the order of theCourt of Appeal on 07.03.2003, and this Court granted them leave onthe following questions of law as set out in paragraph 19 of their peti-tion.
Did the Court of Appeal err in upholding the order of the DistrictCourt, when the District Court lacked jurisdiction to make suchorder and/or to' alter the judgment and interlocutory decree
– entered by Court?
Did the Court of Appeal err in upholding the order of the DistrictCourt made in 940/P D.C. Ratnapura which limited the extentof the corpus to 30 acres without identifying the same?
Did the Court of Appeal err in upholding the said order of theDistrict Court when the District Court had misdirected itself inallowing the respondents’ application to limit the corpus to 30acres inasmuch as the said respondents had only made aclaim to 9 3/4 acres from the surveyed land?
Did the Court of Appeal err in upholding the order of the DistrictCourt when the respondents had failed to show, trace or provetheir title to the land which they were seeking to exclude fromthe corpus?
Did the Court of Appeal err in upholding the order of the DistrictCourt when the respondent’s application was totally miscon-ceived in law inasmuch as they were not entitled to have andmaintain an application under section 48 of the Partition Law
and/or section 839 of the Civil Procedure Code?
Did the Court of Appeal err in upholding the order of the DistrictCourt when the respondents were estopped in law from mak-ing their application?
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Did the Court of Appeal misdirect itself in not properly consid-ering the grounds of appeal set out in paragraph 16 of the peti-tion made to the Court of Appeal and the questions of law for-mulated in the written submissions of the petitioners.
It is convenient to deal with questions 1 -5 together since they con-cern with the scope and content of section 48(4) of the Partition Lawand its applicability to the circumstances of this case.
The Court of Appeal has sought to justify the order of the DistrictJudge by reference to the inherent powers of the District Court interms of section 839 of the Civil Procedure Code. It is apparent thatthe learned District Judge had acted solely in terms of the provisionsof section 48 of the Partition Law since he made express reference toit in the course of his order and made no mention of section 839 of theCivil Procedure Code. Even the petitioners had failed to plead theinvocation of the provisions of section 839 of the Civil ProcedureCode.
Section 48(4) of the- Partition Law as amended by Act, No.17 of1997 makes provision for a party to a partition action, as enumeratedhereinafter whose right, title or interest in respect of the land has beenextinguished by reason of the entering of the interlocutory decree orotherwise prejudiced by the interlocutory decree to make an applica-tion for special leave to establish the right, title or interest in respectof the land. This provision seeks to provide such relief to a limited cat-egory namely to a party (a) who has not been served with summonsor (b) being a minor or a person of unsound mind who has not beenduly represented by a guardian ad litem or (c) being a party who hasduly filed his statement of claim and registered his address fails toappear at the trial. Any application for such relief shall be by petitionsupported by an affidavit setting out the nature and extent of his right,share or interest to the land and shall specify to what extent and inwhat manner the applicant seeks to have the interlocutory decreeamended, modified or set aside and the parties affected thereby.
. The application of the petitioner-respondent-respondents dated19.03.1999 was to set aside the judgment and interlocutory decreeentered or in the alternative to restrict the corpus to 30 acres asdescribed in the schedule to the plaint. It would be clear that this appli-cation was outside the scope of section 48(4) of the Partition Law forseveral reasons, namely (a) it was not made by the parties to the
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action, (b) it was intended to set aside the interlocutory decree or inthe alternative to restrict the corpus to 30 Acres, (c) it did not set outthe nature and extent of the right, share or interest of the parties to theland to which the action relates and (d) it did not specify to what extentand in what manner the parties seek to have the interlocutory decreeamended, modified or set aside. It must be noted that a party couldmake an application to set aside the interlocutory decree only wherethe party is entitled to the entirety .of the property.
It is significant that section 48(1) of the Partition Law gives final 100and conclusive effect to the interlocutory decree subject to the deci-sion on any appeal which may be preferred therefrom and sub sec-tion (4) as referred to earlier. Having regard to the stringent provisionsof section 48 of the Partition Law which had as their object the finali-ty of the interlocutory decree it is obvious that learned District Judgehad acted in blatant disregard of the provisions of section 48.
On a consideration of the above material it would be manifest thatDistrict Court had no jurisdiction to entertain the application of the peti-tioner-respondent-respondents to seek the relief they prayed for andthe application was misconceived. The Court of Appeal has taken the noerroneous view that notwithstanding the provisions of section 48,learned District Judge was justified in restricting the corpus to 30acres using the inherent powers of Court in terms of section 839 of theCivil Procedure Code. For the foregoing reasons I hold that the Courtof Appeal has erred in affirming the order of the District Judge whichwas patently outside his jurisdiction. Therefore, I set aside the order ofthe District Judge dated 04.11.1998 and the order of the Court ofAppeal dated 07.03.2002.
The petitioner-respondent-respondents were not parties to theaction and therefore no question of estoppel would arise in respect of 120their application to claim relief.
It is not necessary to consider the material referred to in questionNo.7, since most of the matters arising from paragraph 16 of the peti-tion of appeal presented to Court of Appeal had been dealt with in dis-cussing the other questions.
The revisionary powers of the Appellate Court are unaffectedalthough section 48 of the Partition Law invests interlocutory decreesentered under the Partition Law with finality. Thus the exercise of pow-
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ers of revision and restitution in integrum to set aside partition decreeswhen it is found that the proceedings were tainted by what has been 130called fundamental vice is available to the Appellate Court/1)
Licensed Surveyor Ramakrishnan who was commissioned to dothe preliminary survey had failed to locate and identify the amalga-mated lands as described in the schedule to the plaint. By surveyingan extent of 71 Acres, which exceeded the extent he was commis-sioned to survey by 41 Acres, the Commissioner had failed to complywith the terms of the commission. The Commissioner should havereported the fact that he was unable to locate a land of about 30 Acresand asked for further instructions from the District Judge. It is unfortu-nate that even the learned District Judge who heard the case had hofailed to give due consideration to the wide discrepancy in the extent.
On a perusal of the supplementary report of the Commissioner itwould appear that on a superimposition of lot 33 of F.V.P. 259 on thepreliminary plan certain lots would fall outside lot 33 and therefore cer-tain exclusions had been recommended from the corpus. At the trialcontents of the supplementary report appear to have received scantattention of the Court.
On the above material, I hold that the District Court had actedwrongly in proceeding to trial in respect of what appeared to be a larg-er land than that described in the plaint and not properly identified. 150In any event the peremptory steps relating to an amendment of theplaint, the registration of a new lis pendens and the fresh declarationin terms of section 12 have not been complied with. Therefore, I setaside the proceedings in the District Court leading up to the trial andthe judgment and the interlocutory decree. However, I make no orderas to costs.
S.N. SILVA, C.J.-I agree.
ISMAIL, J.-I agree.
Appeal allowed.