JAYASEKERA v. PERERA et al

034-NLR-NLR-V-26-JAYASEKERA-v.-PERERA-et-al.pdf


( 198 )
1984.
Present : Schneider J. and Jayewardene A.J*JAYASEKERA v. PERERA et al.32—D. G. Colombo, 8,485.
Partition—Land referred to in final decree different to land referred to inplaint, and in respect of which parties proved title—Decree M givenas hereinbefore provided "—Is decree binding on persons not partiesto decree ?—Partition Ordinance, 1863.
Where the land referred to in the plaint in a partition actionand the land in respect of which the parties proved their title andobtained an interlocutory decree was not the land depicted in thesurvey plan referred to in the final decree, the final decree cannotbe regarded as a decree- “ given as hereinbefore provided" insection -9 of the Partition Ordinance, 1863, and does not bind anyperson except parties to that decree.
Jayewardene v. Weeresehere 1 followed.
1 {1917) 4 C. W. R. 406.
( 199 )
fJlHE facts are set out in the judgment.tiifa
Jayasdcera
…
E. J. Samarawickreme (with him Charles de Silva), for appellants. Peter*
H. V. Peteru (with him Weerasuriya) for respondent.
August 5, 1924. Jayewardenb A.J.—
If the facts alleged in this case are true, they disclose a novelabuse of the Partition Ordinance. The defendants say that theplaintiff and a friend who began a suit for the partition of a land Bhave emerged from the action as the owners in divided shares of anentirely different land M. Such, in fact, seems to be the claim ofthe plaintiff. The plaintiff was the owner of a land called Bata-dombagahawatta. He sold a half share of it to one Don MartenisSeneviratne on September 28, 1918. Within two weeks of thetransfer, Seneviratne instituted partition action No. 51,482 for thepartition of the land between himself and his vendor, the presentplaintiff. In the plaint the land was described with the followingboundaries: North by the field of Ameiis Perera, East by Pallemulla-kumbura, South by the garden of Niunhella Appuhamy, West bythe garden of Dehangoda Eotalawelage Mangris and others, andsaid to be 7 acres 1 rood and 25 perches, and a plan by Mr. Frida,a licensed surveyor, dated June 18, 1916, further identifying theland, was filed with the plaint.
The title of the parties was proved, and an interlocutory decreewas duly entered declaring Seneviratne entitled to a half share andthe present plaintiff to the other half, and directing a partition ofthe land described in the plaint and in Mr. Frida’s plan. A com-mission was issued to Mr. S. Batnam, also a licensed surveyor,to partition the land described in that decree.
When the commissioner went to the spot, the parties pointed outto him a land, the boundaries of which did not exactly tally withthose of the land described in the commission. The configurationof the land differed from that in Mr. Frida’s plan, and there wasa difference in the extent.
He made a preliminary survey, and- sent a report to Court with atracing of his survey. In the report he said:—
“ The parties pointed out the land to me, and I found that thedescription of the northern, eastern, and western boundariesas given in the plan filed of record tally more or less withthe boundaries as I found them on the land.* The southernboundary given in the plan is described as “ garden ofNiunhella Appuhamy ” and others. The southernboundary of the land is really an owita or low land belong-ing to Anthony Appuhamy and others.
.( 200 )
1924.
Jayhwar-DENB A.J.
Jaya#ek*ra
v.
Perera
“ The plan in the record does not agree in configuration with theland in question, nor does it answer the compass. Theextent given in the plan is 7.1.25, but upon survey 1 findthe extent to be only 5a. Or. 2p. The boundaries to theland are well defined, and c&nnot in any way mislead thesurveyor/’
“ Under these circumstances I have not been able to execute thecommission without further directions from the Court.
I submit a tracing of my survey.”
Notice of this report was given to the plaintiff’s proctor, and a fewdays later the Court made the following order: —
The surveyor present states that the land is within well-definedboundaries. He is ordered to file a scheme of partitionand report of the land within such boundaries.”
It is unfortunate that the Court took no further steps on thecommissioner’s report, for, if it had, the attempt to commit the fraud,which the present defendants say has been committed, would havebeen nipped in the bud. The commissioner, whose conduct in thematter deserves commendation, was thus compelled to survey andpartition the land pointed out to him (see FI), and he allotted lot Bto the plaintiff and lot A to the defendant, the present plaintiff, andfinal decree was entered under section 6 of the Partition Ordinancein terms of the commissioner’s scheme on June 11, 1919.
On August 4 of the same year, by deed No. 165, the plaintiff inthe partition case conveyed the lot allotted to him by the decreeto the present plaintiff, so that the plaintiff became the owner of theentire land. These transactions clearly show that the object ofthe partition action was not to terminate common possession, butmerely to obtain an indefeasible title.
The plantiff brings the present action complaining that sinceOctober, 1922, the defendants, the 1st defendant as owner and thesecond defendant as his lessee, are in the unlawful and forciblepossession of his land.
He asks that he be declared entitled to the land described in thefinal decree and shown in the final decree plan No. 586, which hecalls Batadombagahawatta, and for ejectment and damages. Thedefendants filed answer disclaiming title to the land called Bata-dombagahawatta, but they said that they were entitled to and inpossession of a land called Millegahakanatta, and that the plaintiffwas fraudulently bringing this action to deprive them of their land.They gave the boundaries of the land Millegahakanatta, which wereentirely different from the boundaries of the land Batadombagaha-watta as given iri the plaint in the partition action (No. 51,432).
They asked that the plaintiff’s action be dismissed. The plaintiff,on the other hand, contended that the land that was partitioned,inthat case was tfie land the defendants were in possession of, and that
/
( 201 )
the final decree in the case extinguished all adverse rights and gavehim a title good against the whole world—the defendants and allothers. Hie defendants insisting that the land partitioned was nottheir land Millegahakanatta, th^ parties went to trial on thefollowing issue:“ Was the land depicted in plan P 1* the land in
respect of which final decree was entered in case No. 51,482 D. C.Colombo. ”
| P 1 is a copy of the partition plan No. 586* It is also a plan ofthe land which the defendants claim and call Millegahakanatta.On the plans produced in evidence an.d the evidence of the surveyorscalled, only one answer was possible to this issue.
There cannot be the shadow of a doubt that it was in respect ofthe land depicted in plan P 1 that the final decree was entered.
The learned District Judge so held and gave judgment for theplaintiff. In appeal it is contended that the judgment of theDistrict Judge is wrong, and it is also contended that the final decree,if it applies to the land Millegahakanatta is void, because undersection 9 of the Partition Ordinance, it is only decrees for partitionor sale “ given as hereinbefore provided " that are good andconclusive against all the world ; that Millegahakanatta was notdescribed in the plaint or depicted on the plan filed with it, noevidence was led as to the title of the parties to it, and it was notthe land declared to be the property of the parties, or directed tobe partitioned in the preliminary decrees, and that it is only- dealtwith in the final decree, if at all. The first contention that theissue has been wrongly decided is, to my mind, entirely untenable.
It is argued that what is binding on the parties is the descriptionof the land given in the decree, and that the plan attached to it isirrelevant and cannot be taken into consideration for the purpose ofidentifying the corpus partitioned.
It is pointed out that in the decree the northern boundary of theland partitioned is given as “ the property of .Mangiris ” and thesouthern boundary as the deniva of Anthony Appuhamy andothers, ” but that these are not the correct boundaries of the landpartitioned according to the evidence led in the present case, there-fore the land dealt with in the final decree must be some other land.
But I do not think it is possible to ignore the survey plan filedwith, and referred to in, the decree, and it is the lots appearing inthis plan that the parties are declared entitled to under the decree.
Whatever the boundaries may he, the land partitioned has beensurveyed, and by means of the survey the land partitioned can beidentified beyond all doubt. It has been so identified in the presentcase by both the surveyors who were called as witnesses.
It has been marked off on the ground and divided by pickets.It is the land the defendants call Millegahakanatta. The issue wastherefore rightly answered in the affirmative. But the matter doesnot and cannot end there.
Jaybwab*DKKB Aj.
Jayawker*
v*
Ptrtr*
( 202 )
i>:
AB-
Jayasekera
Perera
The second contention submitted (or the appellants raises in myopinion the real issue in the case; Was the final decree, P 3,44 given as hereinbefore provided ? If not, the decree is useless,and does not bind anybody. It has been held in several cases thatwhen a decree under the Partition Ordinance is pleaded as a basisof title, it is open to the party against whom it is pleaded to showthat it is not a decree 44 given as hereinbefore provided, ” and so,has not the conclusive effect given to .decrees under section 9.Samardkoon v. Jayewardene,1 Fernando v. Shewakram2 see alsoDias v. Carlinahamy 2 and Neeldkutty v. Alvar *
In Jayewardene v. Weere&ekere (supra), De Sampayo J. explainedthe expression decree 44 given as hereinbefore provided. ” He saidthat this expression appears 44 to have reference to such essentialsteps as investigation into the title, the order to partition the land,and the allotments of shares in severalty according to the Com-missioner’s report.
It does not apply to the provisions in the Ordinance which weremerely directory. Wood Benton C.J. agreed with this view, and inNeeldkutty v. Alvar (supra) „ Bertram C.J. adopted the same view.He said:44 The effect of the words 4 given as hereinbefore provided *
has been considered by this Court in a recent case (Jayewardene v.Weeresekere (supra)), and it was there laid down that the expression4 giyen as hereinbefore provided ' referred only to such essentialsteps as might be considered imperative, and not to such provisionsof the Ordinance as were of a directory nature only, ”—and heldthat ’ the Requirement of competency in the Court in section 2cannot be regarded as otherwise than imperative and essential.
What are the facts in the present case? The appellant wishesto prove that the land, whether it is called Millegahakanatta orBatadombagahawatta, dealt with in the final decree, was not thesubject-matter of partition action No. 51,432, in which the decreewas entered. There was no investigation into the titles of the ownersin common of this land. The interlocutory order made no decla-ration with regard to the rights of the parties to it, and did not directit to be partitioned. The references in the plaint, and in Mr. Frida’splan, and all the steps taken in the action and at the trial were to,and in respect of, a land which is at some distance from the landactually partitioned and shown in plan No. 276 (D 1) made byMr. Jayawardene, licensed surveyor, as lot B, which also shows theland actually partitioned as lot A. If the defendants can provetheir allegation they will, in my opinion, succeed in proving thatnone of the essential or imperative requirements of the Ordinance inrespect of a land sought to be partitioned under it, have been com-plied with in respect of the land partitioned under the final decree.
1 (1909) 12 N. L. R. $16.3 (1919) 21 N. L. R. 112.
* (1917) 20 N. L. R. 28.4 (1918) 20 N. L. R. $72
( 208 )
The defendants have made out a strong primd facie case in supportof their allegations, and it would be a distinct denial of justice torefuse them an opportunity of proving them.
In my opinion, therefore, if the defendants succeed in provingthat the land referred to in the plaint and in Mr. Frida's plan, endthe land in respect of which the parties in ease No. 57,342 provedtheir title and obtained an interlocutory decree is not the landdepicted in F 1, the final decree cannot be regarded as a decree14 given as hereinbefore provided," and would not bind any personexcept perhaps the parties to that decree.
In this view it becomes unnecessary to deal with the defendants'application to amend their answer so as to include a claim fordamages under section 9.
But it will be open to the defendants to renew their application,if so advised, when the case goes back for trial.v
I would accordingly set aside the decree in favour of the plaintiff,and sent the case back for the decision of the issue whether the finaldecree on which the plaintiff’s title is based is a decree 41 given ashereinbefore provided ” in the light of the opinions expressed above.: The plaintiff is entitled to the costs of the first trial, but thecosts of this appeal and the costs of the subsequent trial will abidethe event.
Schneider J.—J agree.
Sent back.
mt
Jaykwab-dbnbAJ.
Jayasekero
v.
Perera –