Juliana B amine v. Don Thomas
1957 Present:Basnayake, C.J., and L. W. de Silva, A.J.JULIANA HAMINE el al., Appellants, and DON THOMAS el al.,
S. G. 770—D. G. Gampaha, 3,279jP
-Partition action—Title of each parly—Duty of Court to scrutinise it—Prescriptive
possession—Evidence—Partition Act, JS7o. 16 of 1951, ss. 20, 25, 48, 61.
In an action instituted under the Partition Act Ko. 16 of 1951—•
Held, that section 25 of tho Act makes it obligatory on the Court to scrutinise,quite independently of what tho parties may or may not do, the title of eachparty before any share is allotted to him. Where a party fails'to produce hismaterial documents of title, or omits to prove his title, tho procedure prescribedin sections 20 and 61 of tho Act should bo followed.
Held further, that when a witness giving evidence of prescriptive possessionstates “ I possessed ” or “ We possessed ”, the Court should insist on thosewords being explained and exemplified.
APPEAL from a judgment of the District Court, Gampaha.:
Sir Lalita PajapaJcse, Q.G., with D. O. IF. Wickremasekera, for the .
:3rd, 5th and 6th defendants-appollants.
Austin Jayasuriya, for the plaintiff-respondent.
■- Cur. adv. vull.
(1S57) 1 Devon <0 Sicbcl 52.
s (1S57) Austin’s Deports 207.
L. W. Dk SILVA, A.OT.—Juliana flaminc v. Don Thomas
September 30, 1957. X». IV. dc Silva, A.-J.—„
Tho plaintiff instituted this action for the partition of a divided portionof a la mi called Kahafagahawatto marked lot B in extent 3 roods, G and■13/100 perches on the footing that he owned G/S shares and tho 1st
defendant tho remaining 2/S shares. The plan No. 534 marked X madefor this action bj’ tho commissioner apjiointod b3" tlio District Courtrefers to lot B depicted in a plan of 1904. Tho extent of tho allegeddivided portion according to the plan X is 2 roods and 35 perches.
The 2nd and 3rd defendants, who were claimants at the survey, filedan answer alleging that Nicholas Appu, the original proprietor referredto in the plaint, was the owner of an undivided 1/12 share of JCahata-gahawattc in extent about S acres, and set out o devolution of title claim-ing flic half share which was inherited by Cathcrinnhamy as the widowof Nicholas Appu They thus joined issue with tho plaintiff. Tho 5thand Gth defendants, who arc appellants along with the 3rd defendant,are the heirs of tho deceased 2nd defendant.
A ftcr trial, tho learned District Judge pronounced his judgment andentered an interlocutory decree for a partition of the corpus dopictedin tho plan X, allotting to tho plaintiff and to tho first defendant therespective shares set out in tho plaint. Tho claim of the contestingdefendants appellants was dismissed. Their appeal questions the correct-ness of lire findings in respect of Cathcrinahamy’s half share which theyclaimed at the trial and which lias been allotted to the plaintiff'.
Points of contest were framed at tho trial with regard to the devolutionof Cathcrinahamy’s 1/2 share in relation to the respective titles pleadedand the prescriptive rights of the parties. Tho identity of tho corpuswas not specifically raised as a point of contest.
The share which devolved on Catherinahamy was conveyed by heron 3D2 in 1907 toLavaris who gifted the share to the 2nd and 3rd defend-ants on 3D3 in 1925. Thereafter Catherinahamy on PI in 193-1 pur-ported to convoy the same interests to Sclesthinu from whom the plaint iffpurchased them on P2 in 19-10. These competing deeds deal with anundivided 1/12 sharo of tho larger land of S acres. The Court had toconsider and determine whether the deeds applied to tho corpus in suitand whether the title of tho 2nd and 3rd defendants was superior to thatof the plaintiff. Tho learned District Judge held that 3D2 and 3D3did not apply to the land depicted in the plan X and upheld tho plaintiff’stitlo to it on P2. In coming to this conclusion, ho was misled by thoboundaries in the defendant’s deeds. An examination of tho documentsshows that the boundaries in the two sets of deeds aro identical. LearnedCounsel for the respondent conceded that tho trial Judgo had erred incoming to his conclusion. 3Vhero thei'o arc two titles derived from oneand tho same source, tho earlier title must prevail. Xo question ofpriority by registration was raised. It is thus obvious that tho titlewhich passed to the 2nd and 3rd defendants on 3D2 and 3D3 must prevailover PI and P2.
548'L. W. De SILVA, A.J.—Juiiana Hamine v. Don Thomas '
Having erroneously found that the plaintiff was entitled to Catherina-hamy’s 1/2 share on P2, the learned District Judge proceeded to make afinding that the 3rd defendant and the heirs of the deceased 2nd defendanthad failed to prove a title by prescription. This finding cannot besupported. The paper title being in the 2nd and 3rd defendants, theburden of proving a title by prescription was on the plaintiff. Thatburden ho has failed to discharge. Apart from the use of the wordpossess, the witnesses called by the plaintiff did not describe tho mannerof possession. Such evidence is of no value whore the Court has to finda titlo by prescription. On this aspect, it i3 sufficient to recall the obser-vations of Bertram C. J. in the Tull Bench Case of A he is v. Perera 1 :
" I wish very much that District Judges—I speak not particularly,but generally—when a witness says ‘ I possessed ’ or ‘ We possessed ’or ‘We took tho producewould not confine themselves merely torecording tho words, but would insist on those words being explainedand exemplified. I wish District- Judges would abandon the presentpractice of simply recording these words when stated by the witnesses,and would see that such facts as the witnesses have in their minds arestated in full and appear in the record. ”. .
But a finding on the mere devolution of title as set out in the judgmentof the Court of trial is of no consecpienee unless there is also a finding whichdetermines tho corpus to which that title relates. While tho plaintiffpurported to obtain a titlo on P2 to 1/12 share of a land of S acres, hepurported to obtain a title on P4 to 1 /4 share of lot B in extent 3 roods,G • 13 perches. He did not adduce any evidence to explain how the corpushe has sought to partition was reduced at various stages. The plaintdocs not refer to a plan, nor does it aver how the divided portion markedlot B came into existence. The plan of 1904 referred to in tho plan Xmade for the purposes of this action was not produced at tho trial. Theboundaries appearing in the plaint are different from those shown intho plan X. There is no evidence what-over to identify tho land describedin the plaint with tho land depicted in the plan X. The material elicitedin the cross-examination of the plaintiff confirms his ignorance anduncertainty :—
Q. This land is a portion of a bigger land 1A. I do not know. It is a separate portion.
Q. Who pointed out the boundaries to the surveyor ?
A. The 1st defendant and I.
Q. All round this land are portions of Kahatagahawatte ?
Q. So that this is also a portion of Kahatagahawatte ?
A. Must be..’
Tho learned District Judge has not considered this aspect of the case.The speculative nature of tho plaintiff’s purchases is borne out by hisown deeds. Search was dispensed with on his purchase of a 1/12 share of a
(1010) 21 N. D. It. at 32G.
L,. V D£ SILVA, A.J.—Juliana flaming r. Don Thomas
larger land on P2. His next purchaso of a 1/4 share of lot B on PJ wasmade eleven days later through another Nofcarje Learned Counsel forthe appellants has brought some of those matters to our notice sincethey have a bearing on the investigation of the titlo of the parties.
I now turn to tho title of the 1st defendant. Ho filed no answer, but aProctor filed liis proxy. According to the plaint, two of Nicholas Appu’schildren arc said to have sold their 2/S shares to tho 1st defendant. Thoonlv evideneo touching his title was given bj' tho plaintiff who did nomore than repeat his .averment in the plaint. Tho title deeds of the1st defendant were not produced at the trial though ho was present inCourt and expresod a desire to have his interests allotted on the northernside. The Court had no opportunity of examining his titlo. Neverthelesstho judgment states : “ the 1st defendant has obtained title to 2/S sharefrom two of the children of Nicholas Appu. ”
But learned Counsel for tho plaintiff respondent lias pointed out thatthe title of the 1st defendant is not tho subject of this appeal and hasargued that tho appellants arc not entitled to rely uj>on matters whichthe trial Judge was not called upon to decide. We are unable to acceptthis contention without qualification. This is a partition action governedbj’ tho Partition Act No. IGoflOol. Section 25 of the Act is as follows —-
“ On tho date fixed for the trial of a partition action or on any otherdate to which tho trial may be adjourned, the court shall examine thetitle of each ytarty and shall hear and receive evidence in support thereofand shall try and determine all questions of law and fact arising in thataction in regard to the right, share, or interest of each party to, of, or inthe land to which that action relates, and shall consider and decidewhich of the orders mentioned in section 26 should be made. ”
Since this provision of law makes it obligatory on tho Court to examinetho title of each party, the title of the 1st defendant had to be subjectedto scrutiny before any share was allotted to him. The finding that the1st defendant has obtained title to a 2/S share is unfounded. Thelearned trial Judge does not appear to have made use of section 20 or 01of tho Partition Act. Section 20 prescribes tho stop which the Courtshould rake when a party to a partition action fails to produce at the trialhis material documents of title, while section 61 proscribes the procedureto be followed where a party omits to prove his title. Wo wish tocommend tho use of these sections. Without an examination of the 1stdefendant’s titlo, the Court of trial could not, without causing prejudiceto tho other parties, proceed to the next stage of considering and decidingwhich of the orders mentioned in section 26 of tho Act should bo made.
e aro of the opinion that a partition decree cannot bo tho subject ofa private arrangement between parties on matters of title which theCourt is bound by law to examine. While it is indeed essential for partiesto a partition action to state to the Court the points of contest inter seand to obtain a determination on them, tho obligations of the Court aronot discharged unless the provisions of section 25 of tho Act arc compliedwith quite independently of what parties may or may not do. Tho
550 -WEEKASOORIYA, J.—Alice v. Excise Inspector, Kandy '
. interlocutory decree •which the court has to enter in accordance with itsfindings in terms of section 26 of the Act is final in character since nointerventions are possible or permitted after such a decree. There istherefore the greater need for the exercise of judicial caution before adecree is entered. The court of trial should bo mindful of the specialprovisions relating to decrees as laid down in section 48 of the Act.According to its, terms, the interlocutory and final decrcos shall be goodand sufficient evidence of the title of any person as to the interests awardedtherein and shall bo final and conclusive for all purposes against all' persons, whomsoever, notwithstanding any omission or defect of procedureor in the proof of title adduced before the court, and notwithstanding theprovisions of section 44 of the Evidence Ordinanace, and subject only 'to the two exceptions specified in sub-section 3 of section 4S of the Act.
We are of the opinion that the plaintiff has failed to prove a title to theproperty he has sought to partition. On a consideration of all thematters to which we have referred, we allow the appeal and dismiss theplaintiff's action with costs both here and in the court below.
Basxayakj', C.J.—I agree..’.
JULIANA HAMINE et al., Appellants, and DON THOMAS et al., Repondents