041-SLLR-SLLR-2006-V-3-JAYARATNE-AND-ANOTHER-vs.-GUNAWARDANE-AND-ANNOTHER.pdf
SCJayaratne and another Vs Gunawardane and others337
(Wlmalachandra, J.)
JAYARATNE AND ANOTHERVSGUNAWARDANE AND ANOTHERCOURT OF APPEALWIMALACHANDRAJ.
CALA 171/2003DC KALUTARA 4199/PJUNE 15. 2005DECEMBER 12. 2005
Partition Law-Final decree entered-Lots allotted-Heir seeking to substitutehimself in the room of the deceased and seeking a writ of possession inrespect of allotted lots-Order by District Court- Is it an interlocutory orderor a final order.
By final decree Lot 4f was allotted to the 2nd defendant and Lot 4gto the 3rd defendant. The 2B defendant-respondent claiming to be heirs ofthe deceased 2nd and 3rd defendants filed applications seeking tosubstitute themselves in the room of the deceased defendants and soughtwrit of possession in respect of Lots 4f and 4g. The District Court allowedthe applications.
The 15th and 18th defendants challenged that said order by way ofleave to appeal.
On a preliminary objection raised that the impugned order is a finalorder.
HELD:
In a partition action after entering the interlocutory decree theCourt has to enter the final decree. It is the final decree that allotsvarious lots to representative parties.
To constitute an order of final judgment, nothing more is necessarythan that there should be a proper litis contestation andadjudication to it on the merits. It would appear that a partitionaction is terminated only after the final decree is entered.
Mere fact that the share of each party determined by the Judge inhis judgment was entered in the interlocutory decree will not makeit a final order as it still remains to be decided, certain otherrights of parties.
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Sri Lanka Law Reports
(2006) 3 Sri L.R.
It is the final decree which specifies the shares to which the partiesare entitled to in separate lots and also compensation or owelty to beawarded in the partition action.
APPLICATION for leave to appeal from the order of the District Courtof Kalutara.
Cases referred to:
Usoof Vs. The National Bank of India 60 NLR 381 at 383
Bozsm Vs. Altrincham Urban District Council 1903 1 KB 547
Siriwardane vs. Air Ceylon Ltd. 1984 1 Sri LR 286
N. R. M. Daluwatte PC with P. P. Gunasena for 15th – 18th defendant-respondent-petitioners
Dr. Jayantha de Almeida Gunaratne PC with C. Abeywickrama for2B, 3A, 4th, 5A and 6th defendant-respondents.
Cur. adv. vult.
October 20,2006WIMALACHANDRA, J.
This is an application for leave to appeal from the order of thelearned District Judge of Kalutara dated 08.05.2003. Briefly, the factsrelevant to this application as set out in the petition are as follows :
The 1 A, 2A and 3rd plaintiffs-respondents-respondents (plaintiffs)instituted this partition action to partition the land called Millagahawattealias "Arachchiyawatte" which is in extent of 1 A, 3R, 37.5P describedin the schedule to the plaint. After trial the judgment was enteredand the interlocutory decree was entered thereafter. Prior to the entryof the final decree, the original 3rd defendant, Samaraweera MudaligeBaby Singho together with the 16th and 19th defendants transferredthe rights that would have been allotted to them in the final decree tothe 18th defendant-respondent-petitioner (18th defendant), by deedNo. 27/2641 dated 25.10.1985, marked 'P1'. The original 2A defendant,
SCJayaratne and another Vs Gunawardane and others339
(Wimatachandra, J. )
Samaraweera Mudalige Sirisena (now deceased) and the 14thdefendant-Samaraweera Mudalige Dias Appuhamy transferred therights that would have been allotted to them in the final decree to the15th defendant-respondent-petitioner (15th defendant) by deed No. 3186dated 01.01.1987, produced marked ’P2".
The Commissioner submitted to Court the final partition plan No.5495 dated 22.06.1989, produced marked 'P3'. The partition plan wasconfirmed by Court and the final decree was entered. After the finalsurvey, the 15th and 18th defendants went into occupation of the lotsallotted to the 2nd and 3rd defendants as the 2nd and 3rd defendantsto whom the said lots were allotted, transferred their rights pendingthe partition action to the 15th and 18th defendants. By the final decreethe lot 4F was alloted to 2nd defendant and the lot 4G to the 3rddefendant.
The 2B defendant-respondent claiming to be the heir of thedeceased 2A defendant, and the 3A defendant claiming to be the heirof the deceased 3rd defendant, filed two applications seeking tosubstitute themselves in the room and place of the said deceaseddefendants and sought writs of possession in respect of lots 4F and4G respectively.
The learned District Judge, after an inquiry with regard to theapplications made by the 2B and 3A defendants-respondents madeorder on 08.05.2003 allowing the said applications. It is against thisorder the 15th and 18th defendants have filed this application for leaveto appeal. In the impugned order the learned judge held that the 2Band 3A defendants are entitled to the possession of the aforesaid lots4F and 4G in the partition plan.
The 2B and 3A defendants raised a preliminary objection that,upon entering of the interlocutory decree in relation to the allotment ofshares in the corpus, the partition action has come to an end and thefinal decree is only concerned with regard to the physical demarcationof separate allotments upon the final survey, and that the order of thelearned judge entering the interlocutory decree is a final order. Thelearned President's Counsel for the 2B and 2A defendants submittedthat as the judgment and the interlocutory decree entered in this
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(2005) 3 Sri L. R.
action are final orders, the application for leave to appeal ismisconceived.
The question to be determined is, does the interlocutory decreefinally dispose of the rights of the parties, and if it does, is thereanything more to decide in relation to the rights of the parties. Thatmeans, was there a finality in the adjudication of the rights of theparties upon the entering of the interlocutory decree?
In the case Usoof Vs. The National Bank of India0* at 383Sansoni, J. (as then he was) cited Bozson Vs. Altrincham Urban DistrictCouncil2 where the Chief Justice said "It seems to me that the real testfor determining this question ought to be this. Does the judgment orOrder as made, finally dispose of the rights of the parties? If it does,then I think it ought to be treated as a final order, but if it does not, it isthen in my opinion, an interlocutory order." His Lordship refers toViscount Cares finding. "The orders now under appeal do not finallydispose of those rights, but leave them to be determined by the courtsin the ordinary way."
In the case of Siriwardena Vs. Air Ceylon Ltd., Sharvananda J.(as he then was) held that,
"To decide whether a party dissatisfied with theorder of a civil court should lodge a direct appealunder section 754(1) of the Civil Procedure Code orappeal with the leave of Court first had and obtainedunder section 754(2) of the Civil Procedure Code thedefinitions of 'judgment* and 'order' in section 754(5)should be applied.
In view of the definition in section 754(5) of theCivil Procedure Code the procedure of direct appealis available to a party dissatisfied not only with ajudgment entered in terms of section 184 of the CivilProcedure Code but also with an order having the effectof a final judgment, that is, a final order. Orders whichare not judgments under section 184 of the CivilProcedure Code or final orders are interlocutory ordersfrom which a party dissatisfied can appeal but onlywith leave to appeal.
sc
Jayaratne and another Vs Gunawardane and others (Wimalachandra, J. )
341
The tests to be applied to determine whether an order hasthe effect of a final judgment and so qualifies as a judgmentunder section 754(5) of the Civil Procedure Code are –
It must be an order finally disposing of the rights ofthe parties.
The order cannot be treated as a final order, if thesuit or the action is still left alive for the purpose ofdetermining the rights and liabilities of the partiesin the ordinary way.
The finality of the order must be determined inrelation to the suit.
The mere fact that a cardinal point in the suit hasbeen decided or even a vital and important issuedetermined in the case, is not enough to make anorder a final one."
It appears that the real test for determining the question is, whetherthe judgment or order as made, finally disposes of the rights of theparties. If it does, it could be treated as a final order and if it does notit is an interlocutory order. In the instant case the entering of theinterlocutory decree does not finally dispose of the rights of the partiesbut leaves them to be determined by the Court in the ordinary way.
The second test formulated by Sharvananda, J. in the aforesaidcase is, if the suit or action is still left alive for the purpose of determiningthe rights and liabilities of the parties in the ordinary way, the ordercannot be treated as a final order. In a partition action after enteringthe interlocutory decree the Court has to enter the final decree. It isthe final decree that allots various lots to respective parties. Toconstitute an order of final judgment, nothing more is necessary thanthat there should be a proper litis contestatio and adjudication to it onthe merits. Hence, it appears that a partition action is terminated onlyafter the final decree is entered.
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Sri Lanka Law Reports
(2006) 3 Sri L. R.
In the circumstances, applying the principle laid down in theaforesaid cases it appears that the mere fact that the share of eachparty determined by the judge in his judgment was entered in theinterlocutory decree will not make it a final order as it still remains tobe decided certain other rights of the parties. It is the final decreewhich specifies the shares to which the parties are entitled to inseparate lots and also compensation or owelty to be awarded in thepartition action.
In these circumstances on the basis of the Siriwardena Vs. AirCeylon Ltd., case, cited above, the order from which leave to appeal issought is not in effect a final judgment. Accordingly, the preliminaryobjection raised by the respondents is overruled and leave to appeal isgranted on the correctness of the order made by the learned DistrictJudge of Kalutara on 08.05.2003.
Preliminary objection overruled.The order is a interlocutory order.Leave to appeal granted.