011-NLR-NLR-V-50-JAYAWICKREME-et-al.-Appellant-and-DON-LEWIS-Respondent.pdf
jayautichreme v. Don tewia.
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1948Present: Basnayake J.
JAYAWICKREME et al„ Appellants, and DON LEWIS,Respondent.
S. C. 126—C. R. Matara, 22,941.
Partition action—Court of Requests—Averment in answer that land is of valueof more than Rs. 300—No issue raised at trial—Duty of Court—PartitionOrdinance, section 4.
Where in a partition action brought in the Court of Requests someof the defendants in their answer stated that the land was worth overRs. 2,000, the fact that the parties did not raise this issue at the trialdoes not absolve the Court from deciding the question in view of theprovisions of section 4 of the Partition Ordinance.
Held further : Survey plans other than those which are deemed, bystatute to be accurate until the contrary is proved must be provedaccording to the rules of evidence.
^y^PPEAL from a judgment of the Commissioner of Requests, Matara.
N. E. Weerasooria, K.C., with H. W. Jayewardene, for the appellants.
W. Tambiah, for the plaintiff, respondent.
Cur. adv. vult.
BA SNA YAK B J.—Jayawickreme v. Don Lewis.
47
May 5, 1948. Basnayake J.—
By deed No. 5174 of September 25,1941, referred to in these proceedingsas P 1, the plaintiff, one Palihawadana Kodikara Don Lewis, purchasedfrom four persons named Vitiyala Vidanage Suwaris Appuhamy andVitiyala Vidanage Don Carolis, Dampellagamage Babehamy, andPothumulle Kankanange Don Allis for a sum of two hundred rupees aland called Gamageowita depicted as lot O in plan No. 830 made by
G. Perera, Surveyor, filed in D. C. Matara, Case No. 753, bounded onthe north by Ithanawaka, east by Mahaowita, south by the Nilwala-ganga,west by Radagewatta alias Bogahaowitewatta in extent 1 acre 2 roodsand 20 perches. It appears from the deed that the consideration wasnot paid in the presence of the notary. The vendors Suwaris andCarolis admit having received twenty-five rupees and fifty-six rupeesrespectively. There is no evidence as to the payments, if any, made tothe other two vendors.
Within three months of his purchase the plaintiff on December 10,1941, instituted this action under the Partition Ordinance. In his libelunder section 2 of that Ordinance the plaintiff named eight persons asco-owners. Of these eight the first and second named did not appearand take part in these proceedings. The others contested the plaintiff’saction on grounds fully stated in the respective statements filed bythem.
Although the third and fourth defendants in their statement contendthat the subject-matter of this action is worth over Rs. 2,000, the learnedCommissioner appears to have paid no heed to this averment.
It is settled law that a decree purporting to be made by a court oflimited jurisdiction with regard to a matter outside its jurisdiction is anullity. It has been decided in the case of Neelalcuttyv. Alvar1 that it isopen to any one whether a stranger or a party to the suit to impeach thevalidity of a decree passed by a court which is not competent to try thesuit. In the present case the third and fourth defendants have in theiranswer, as I have said before, made the averment that the land is worthmore than Rs. 2,000 and expressly taken the plea that the court has nojurisdiction to try the action. The learned Commissioner was thereforeunder a duty to determine this matter in pursuance of the requirementsof section 4 of the Partition Ordinance. The portion of that sectionwhich is material reads :
“ If the defendants or any of them shall appear and dispute thetitle of the plaintiffs, or shall claim larger shares or interests than theplaintiffs have stated to belong to them, or shall dispute any othermaterial allegation in the libel, the court shall in the same cause proceedto examine the titles of all the parties interested therein, and theextent of their several shares or interests, and to try and determine anyother material question in dispute between the parties … ”
The learned Commissioner has failed to carry out the imperative directionof section 4. The fact that the parties did not raise this issue specificallyat the trial does not absolve the court. It has been held by this Court
(1918) 20 N. L. JR. 372.
48
BASNAYAKE J.—Jay aw icier erne, v. Don Lewis.
in the ease of Peris et al. v. Per era et all that the eourt should notregard partition actions as merely to be decided on issues raised by andbetween the parties. The failure of the third and fourth defendantsto press their objection at the trial cannot confer jurisdiction if in factthe averment in the answer is true. Consent of parties cannot give aCourt of Requests jurisdiction to try a matter which it has no jurisdictionto try 2.
The judgment of the learned Commissioner is therefore set aside andthe case sent back so that he may decide the question whether the Courtof Requests has jurisdiction to try this action. If he finds that the valueof the land on December 10, 1941, did not exceed three hundred rupeeshe will proceed to hear and determine the case de novo. But if he findsthat the value of the land on December 10, 1941, exceeded three hundredrupees, the plaintiff’s action should be dismissed with costs with liberty,if he so desires, to institute fresh proceedings in a court of competentjurisdiction. There will be no costs of this appeal.
I refrain from saying anything on the facts of the case in view of theorder I have made. But I wish to state that I disapprove of the coursethat has been adopted in this case of putting in evidence various figuresof survey from which the court is asked to draw inferences of fact withouteither proving them or calling a qualified surveyor to explain by oralevidence the various features depicted thereon. Except in the case ofsurvey plans which are deemed by statute3 to be accurate until thecontrary is proved and to be prima facie proof of the facts exhibitedtherein, all other survey plans must be proved according to the rules ofevidence. By way of caution to the parties I wish to repeat the wordsof Baurie J. in Akbar v. Slema Lebbe 4 :—
“If on a survey I find certain conventional figures, such as a circlefilled with blue, or a number of dark lines or parallel lines red or blue,and if I find on the margin that the surveyor states that he meansthereby to represent a well or a marsh or a rock or a road or a river,I take the survey to prove that the well or marsh, the rock, the riveror road, was there when the survey was made ; but if I find such notesas “ East, Don John’s property ” or “ reservation ” or “ encroachment”,the survey does not prove the truth of these allegations. These arenot records of the observation of the surveyor. They are statements ofhearsay or the results of calculations made by him, and until we knowthe grounds for his opinion we cannot take that opinion as of probativevalue.”
.Sent back for retrial.
(1896) 1 N. L. R. 362.
Jusey Appoo v. Ukku-rala and another, (1859) 3 Lorenz 280; and Neelakutty v.Alvar et al., (1918) 20 X. L. R. 372.
Section 83 Evidence Ordinance ; Section 6 Land Surveys Ordinance ; Section 64Thoroughfares Ordinance.
‘(1893) 2 C. L. R. 175 at 176.