111-NLR-NLR-V-48-JOHN-SINGHO-Appellant-and-PEDRIS-HAMY-et-al.-Respondents.pdf
John Singho v. Pedris Hamy.
345
1947Present: Wijeyewardene and Jayatileke JJ.
JOHN SINGHO, Appellant, and PEDRIS HAMY, et al., Respondents.
S. C. 59—D. C. (Inty.) Kalutara, 24,550.
Partition action—Points in dispute agreed on—Other matters decided—Duty oftrial Judge.
Where in a partition action all parties agree on the points in disputeand state them to Court the Judge should not consider without givingdue notice to the parties any other matters that may appear to him toarise between the parties in the course of the proceedings. The position,will however be different where the points in dispute are not set down,in the form of issues.
1 (1926) 28 N. L. B. 401.
(1946) 47 N. L. R. 564.
346WIJEYEWARDENE J.—John Singho v. Pedris Homy.
JfPEAL. from a judgment of the District Judge of Kalutara.
E. A. P. Wijeratne, for the plaintiff, appellant.
■S'. W. Jayasuriya, for the defendants, respondents.
May 14, 1947. Wijeyewardene J.—
This is a partition action. At the commencement of the trial theJudge made the following note : —
“ The dispute is whether Andiris Naide owned the land or whether
Aberan, his son, owned the land. The plaintiff says Andiris owned it,
the fifth and eleventh defendants say that Aberan owned it. ”
On the evidence before him, the Judge was satisfied that no one who-was not a party to the action had an interest in the property. He foundalso on a balance of evidence that Andiris Naide, and not Aberan, was theoriginal owner. On those findings he should have entered a decreedeclaring the successors in title from Andiris Naide entitled to theundivided shares of the land as ascertained by him. Instead of followingthat procedure—and he should have followed that procedure in view ofthe note he made at the beginning of the trial—he took upon himself-to decide whether some of the successors in title of Aberan had notacquired title by prescriptive possession against all the other parties.This appears to have been a self-imposed task, considering that theparties had told him that the dispute between them was whether AndirisNaide or Aberan was the original owner. It cannot be said that theplaintiff has not been prejudiced by the action of the District Judgein deciding the question of prescriptive possession in these circumstances.A Judge may find it frequently very convenient to state, in the form ofissues, the matters in dispute between the parties in a partition action.After satisfying himself that no person other than the parties to the actionhas interests in the property, he will in such a case decide the issuesframed by him and enter a decree for partition or sale according to hisfinding on those issues. He should not in such circumstances consider,without giving due notice to the parties, any matters in dispute that mayappear to him to arise between them in the course of the proceedings.The position, of course, will be different where the Judge does not setdown, in the form of issues, the matters in dispute in a partition action.In such a case the parties will be presumed to have asked the Court toadjudicate on all the matters in dispute as disclosed by the pleadings.It is contended for the contesting respondents that they did not intend toconfine themselves only to the question of fact recorded by the Judge,and the manner in which the Judge dealt with the case seems to supportthis contention to some extent.
1 set aside the judgment of the District Judge and send the case backdor a fresh trial before another Judge. The contesting respondents willpay the appellant the costs of proceedings of November 19, 1945, and thecosts of appeal.
Jayetileke J.—I agree.
Sent back for re-trial.