MARfKKAR MOHAMED & OTHERSCOURT OF APPEAL
S. B GOONEWARDENE J & VIKNARAJAH J.
C A. NO: 1199/85D C- COLOMBO 11168/PJUNE 14. 16 & 20.1988.
Partition — Revision — Intervention by way of application for revision — Entry ofinterlocutory decree — Notices, proclamation and publication — Sections IS and48 of Partition Act — Rule 46 of the Supreme Court Rules.
This partition action was instituted on 21.2.66 and judgment was delivered on31 10.79 and interlocutory decree was ordered to be entered. The petitioner(not a party To the action) moved the Court of Appeal in revision alleging non-compliance with S. 15 which stipulates the exhibition of notices.-publication ofthe action and oral proclamation, and entry of judgment on a plan which did notcomply with the requirements of the Partition Act.
The Appeal Court's revisionary powers remain unaffected by legislationStipulating finality and conclusiveness to decrees under the law relating topartition. Yet the Court will intervene in revision only if there is fundamental viceand to avert a miscarriage of justice.
In the case before Court the statutory requirements as to publication andexhibition of notices and proclamation had all been complied with and thesurveyor had duly and properly executed the Commissions to survey andfurnished his reports through the first of these reports the petitioner had failedto produce
The petitioner's application and claim based on prescription were madewith collateral motives to counter a tenancy suit pending against him.
Judgment had been delivered. Entry of interlocutory decree is aministerial act
The petitioner himself had failed to comply with the mandatory provisionsof Rule 46 of the Supreme Court Rules in that he had not furnished a .copy ofthe surveyor’s report to the first plan and no schedule of the land as claimed byhim had been incorporated into his petition or affidavit.
. Cases referred to:
1. Petisingho v. Ratnaweera — 62 NLR 3722 Dtssanayake v. Ehsahamy — (1978-79) — 2 SRI LR 1193. Mariam Beabee v. Seyed Mohamad — (1965) 68 NLR 36
R. A. Somawathie v Madawela and Others — S C. No. 24/72 — D.C.Kurunegala 3903/P—Minutes of 29 6.82(5 Judges) .
Navaratnasingham v Arumugam — (1980) — 2 SRI LR 1 (Affirmed byS C Appeal No: 6/81)
APPLICATION in revision in respect of judgment of D C COLOMBO
Dr Cotvm R. da Silva with N W. Seneviratna, P.B. Weerasinghe de Silva andMiss Chamantha Weerakoon for Intervenient—Petitioner.
A. C. Gooneratna, QC.. with R. C. Gooneratne for 1st Respondent(Substrtuted-Plamtiff)
Dr H. W Jayawardene, Q.C.. with M. S. A. Hassan. Keerthika Hashim andHarsha Abeysekara for 2nd Respondent (1st Defendant) and 4thRespondent (3rd Respondent).
Fair Musthapha. PC., with H. Vithanaehchi for 3rd Respondent (2ndDefendant)
Cur. adv. vult.
August 04, 1988V1KNARAJAH, J
This is an application by the ‘Intervenient Petitioner' inRevision and/or Restitutio in Integrum filed on 21st October1985 in respect of a Partition Action No. 11i 68/P institutedin the District Court of Colombo on 21st February 1966 andin which case judgment was delivered by the District Court on3110.79. The Court ordered entering of the Interlocutory decreein terms of the said judgment.
The petitioner who calls himself the Intervenient Petitioner wasneither a party to the partition action in the District Court nor didhe make any application to intervene in the District Court.
The Petition of the Petitioner filed on 21st October 1985 issupported by an affidavit of the petitioner dated 25th July 1985.
The relief claimed by the petitioner inter alia is
that the judgment in the Partition case entered on31.10.79 be vacated and set aside.
that it be ordered that this petitioner's name be added asParty Defendant and the case be sent back to the DistrictCourt for hearing afresh after addition as aforesaid.
At the outset I should state that learned Counsel appearing .forthe petitioner stated to Court that he is not pursuing hisapplication for Restitutio in Integrum.
The original plaint in the partition case was filed in the DistrictCourt on 21st February 1966 for partition of the land andpremises formerly bearing assessment No. 138 and presently* No. 142/1 situated in Greenlands Road in Timbirigasyayadescribed in schedule B to the plaint in extent A1-RO-P36. 25which is a portion of the land described in Schedule A to theplaint. The land described in Schedule A is in extentA1—R2—P27.
In para 3 of this plaint it is averred that Mohamed Cassim (who'was the owner of land described in Schedule A) died on or about13th April 1925 leaving a Last Will No. 4569 dated 9thNovember 1911 and attested by Arthur William Alwis ofColombo, Notary Public and a Codicil thereto bearing No. 6043dated 22nd October 1918 also attested by the same Notarywhich was admitted to Probate in testamentary proceedingsNo. 2 2 94/T of the District Court of Colombo.
In para 4 of this plaint it is averred as follows:—
"The said Ismail Lebbe Marikar Abeisha Umma by deedNo. 793 dated 13th January 1935 conveyed a divided anddefined portion on the North West in extent thirty decimalpoint seven five perches to Hajeena Salie and the saiddivided portion did not form part of the corpus in thisaction".'
It. will be seen from both these averments in paras 3 and 4therejs no mention as to how Abeisha Umma referred to in para4 became entitled to the land. Certain facts have been omitted. Inorder to supply this deficiency an amended plaint was filed on27.6.68. The amended plaint bears the date of the original plaintviz 21.02.1966.
On the original plaint Commission was issued to Surveyor G.A. H. Philipiah who executed his commission and submittedPreliminary Plan No. 2240 dated 16th March 1967 togetherwith his field notes and his report. The preliminary plan alongwith the field notes has been filed in this application marked ‘B*.The report of the Surveyor has not been filed in this application.
According to the Preliminary Plan the corpus has beendescribed as lots Y (roadway) and Z in extent 1 A—OR—P37.9.
On 30.4.1968 on a motion filed by Proctor for plaintiff a freshcommission was issued to the same Surveyor to survey the entireland as described in Schedule A to the plaint. The Commissionerduly executed this Commission and submitted his plan No. 3113dated 20th October 1968 along with his report and field notes.The plan and field notes has been produced marked ’O' and theSurveyor's report has been produced marked D1.
On 22.08.1974 plaintiff filed a second amended plaint and inthis plaint sought to partition the entire land described in theSchedule A. which is depicted as At, A2, A3 and A4 in the planNo. 3113 of 20th October 1968. Fresh tis pendens wasregistered and trial proceeded.
After trial judgment was delivered that the corpus for partitionshould be lots Z and Y (roadway) in preliminary plan No. 2240
which correspond to lot A4 and the portion of A3 which isadjacent to Lot A4 (Lot A3 is the roadway). This is the corpuswhich was described in Schedule B. to the original plaint andinterlocutory decree was ordered to be entered in terms of thejudgment.
The petitioner is seeking to revise this judgment on the groundthat (a) no notice as contemplated by 15 (1) or 15 (2) of thePartition Law was ever to the petitioner's knowledge published asrequired and (b) that neither exhibition nor oral proclamation ascontemplated by section 15 (3) was ever done.
The petitioner further pleads in para 12 (b) of the petition that"as in 1956 he was in absolute control and possession utdominus of the land described more fully in the Schedule heretoand the house now bearing assessment No. 142/1 IsipathanaMawatha and collected the rents and produce therefrom".
Although in the petition and affidavit the petitioner speaks of aschedule giving the metes and bounds of the portion where he isclaiming he has a right there is no schedule to the petition. Thusthere is nothing in the petition as to which portion the petitioneris claiming. However learned Counsel for petitioner stated thatthe petitioner is claiming rights in a portion of the land describedin Schedule B to the original plaint which is depicted inpreliminary plan No. 2440 and that the petitioner is notinterested in the added portion in the north, by the subsequentplan No. 3113. In any event there is no specific averment as towhat extent of land the petitioner is claiming. The petitioner alsoclaims that he has prescribed to the said portion of land whichhas not been described by metes and bounds.
Learned Counsel for petitioner submitted that the judgment inthis case is null and void because there had been no proper planin terms of the Partition Act before Court to proceed to trial. Hesubmitted that after the amended plaint filed in 1974 there hasbeen no fresh commission issued to survey the entire land andthe Surveyor when he submitted his plan No. 3113 had notSurveyed the entire land as required by the Partition Law.
Learned Counsel for 2nd and 4th defendant-respondentsraised a preliminary objection that the petitioner cannot have andmaintain his application as the judgment apd decree in caseNo. 11168/P' of the District Court of Colombo is final andconclusive against air persons in terms of section 48 of thePartition Law No. 21 of 1977 and the petitioner is bound by it.Under section 48 (7) the provisions of this section shall apply toall interlocutory and final decrees entered in partition actionsinstituted under the provisions of the Partition Act No. 16 of1951.
Section 48( 1) provides as follows:—
"Save as provided in subsection (5} of this Section, theinterlocutory decree entered under section 26 and the finaldecree of partition entered under section 36'shall, subjectto the decision on any appeal which may be preferred therefrom, and in the case of an interlocutory decree, subjectalso to the provisions of subsection (4) of this section, begood and sufficient evidence of the title of any person as toany right, share or interest awarded therein to him. and befinal and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have, orclaim to have, to or in the land to which ’such decree relatesand notwithstanding any omission or defect of procedure orin the proof of title adduced before the Court or the fact thatall persons concerned are not parties to the partition actionand the right, share or interest awarded by any such decreeshall be free from all encumbrances whatsoever other thanthose specified in that decree."
Section 48 (5) provides as follows:—
"The interlocutory decree or the final decree of partitionentered in a partition action shall not have the final andconclusiver effect given to it by subsection (1) of this sectionas against a person who, not having been a party to thepartition action, claims any such right, title or interest to orin the land or any portion of the land to which the decreerelates as is not directly or remotely derived from thedecree, if. but only, if he proves that the decree has beenentered by a Court without competent jurisdiction".
It was submitted on behalf of the petitioner that as nointerlocutory decree has been entered in this case before ussection 48 does not apply to judgment.
The Court when it delivered judgment ordered thatinterlocutory decree be entered accordingly. The entering of thedecree is a purely ministerial act and the interlocutory decreewhen entered relates back to the date of judgment. SeePetisingho v. Ratnaweera (1) and Dissanayake v, Ehsahamy (2).Thus section 48 of the Partition Law applies to judgments also.
In the case of Manam Beebee v. Seyed Mohamed (3) SansomC. J. delivering the majority decision of the Divisional Bench thatheard this case said as follows at page 38.
The power of revision is an extraordinary power which isquite independant of and distinct from the appellatejurisdiction of this Court. Its object is the due administrationof justice and the correction of errors sometimes committedby this Court itself in order to avoid miscarriage of justice. Itis exercised in some cases by a Judge of his own motion,when an aggrieved person who may not be a party to theaction brings to his notice the fact that, unless the power isexercised, injustice will result. The Partition Act has not Iconceive, made any changes in this respect, and the powercan still be exercised in respect of any order or decree of alower Court".
In Mariam Beebee's case the facts were that interlocutoryDecree for partition was entered when one of the defendants, towhom a share was allotted was dead and the Court beingunaware of such death no steps were taken under section 82 tosubstitute any person to represent his estate In thesecircumstances, the Supreme Court held that the interlocutory
decree was a nullity and set aside the decree in revision.
This case was cited with approval by the Supreme Court in theun reported case of R. A. Somawathie vs. Madawe/a and OthersS.C. No. 24/82 D C. Kurunegala 3903/P—Minutes of 29.6.83(5 Judges} (4) In this case the same question as in the last case was
considered viz can the Court of Appeal interfere by way ofrevision in view of the conclusive and final effect attached topartition decrees When this case was decided the presentPartition Law was in force.
Soza J delivering the judgment of the Court stated asfollows:—
"But although the Act stipulated that decrees under thePartition Act are final and conclusive even where all personsconcerned were not parties to the action or there was anyomission or defect of procedure or in the proof of title, theSupreme Court continued in the exercise of its powers ofrevision and restitutio in integrum to set asid.e partitiondecrees when it found that the proceedings were tainted bywhat has been called fundamental vice". .
Soza J further stated as follows:—
"Accordingly the use by the legislature in successiveenactments of a form of words substantially similar to theform of words in section 48 (1) of the repealed Partition ActNo. 16 of 1951. supports the assumption that thelegislature intended to leave unaffected the powers ofrevision and restitutio in integrum vested now in the Courtof Appeal in conformity with the construction adopted bySansom C.J. in Mariam Beebee v Seyecf Mohamed."
“The Revisionary power of the Court set out in MariamBeebee v Seyed Mohamed therefore remains applicableeven after the enactment of the Administration of Justice(Amendment) Law No. 25 of 1975 and the Partition LawNo. 21 of 1977 The powers of revision and restitutio inintegrum have survived all the legislation that has beenenacted upto date. There are extraordinary powers and willbe exercised only in a fit case to avert a miscarriage ofjustice".*
The facts of the case before the Supreme Court were
(1) There was no proper compliance with section 12 (1) ofthe Partition Act No. 16 of 1951 which was operative at the time this
case was filed. Under this provision it was imperative that aProctor should file a declaration under his hand certifying that allsuch entries on the register maintained under the Registration ofDocuments Ordinance have been personally inspected by himafter the registration of lis pendens, and giving the names andaddresses of every person found upon such inspection to be anecessary party to an action under section 5 of the Act. The -declaration failed to disclose the name of Madawela the name ofthe petitioner whose deed had been registered.
(2) In the surveyor’s report attached to plan depicting thecorpus the name of Madawela was disclosed but no notice wasissued to him as required by section 22 (1) (a) of the PartitionAct
On the facts of this case Soza J stated "Indeed the facts of thiscase cry aloud for the intervention of this Court to prevent whatotherwise would be a miscarriage of justice".
Even in this case the Supreme Court did not set aside all theproceedings but only excluded the particular lot in whichMadawela was concerned from the interlocutory decree.
Thus the Court of Appeal has the power to exercise the extra-ordinary jurisdiction by way of revision in respect of judgmentsand decrees entered in partition cases provided that the Court issatisfied that there is a fundamental vice in the proceeding whichculminated in the judgment or interlocutory decree and if theCourt did not interfere there would be a miscarriage of justice.
The next question to be considered is whether in the casebefore us there is a taint of fundamental vice in the proceedingsand whether it is a fit case where this Court should interfere.
The petitioner in his affidavit states that in the year 1956although still very young he was a riding boy at the SelvaratnamStables and was in absolute cdntrol and possession ut dominusof the land and house now bearing No. 142/1. IsipathanaMawatha In his affidavit the petitioner states in the schedule thedescription of this land which he claims is given but there is noschedule either in the petition or affidavit. Petitioner states thathe kept and stabled a race horse and several Arab ponies in aroom tn the said premises No. 142/1. He further states thatsince the year 1956 he has possessed the land and premisesaforesaid undisturbed and uninterruptedly and by a title adverse’to and independent of all others and has acquired a valid titlethereto by prescription. He has annexed to the affidavit anotheraffidavit from one Albert. According to Albert's affidavit in late1956 he went to reside in a room at 142/1 Isipathana.Mawatha,Colombo and was living there from 1956 to 1969. According toAlbert the petitioner was in possession of premises No. 142/1and the surrounding land from 1956 to 1969 as owner. In 1969Albert after getting married shifted to his parent's house inTimbirigasyaya.
The petitioner in his affidavit avers
that no notice as contemplated by section 15(1} and 15(2) of the Partition Law was ever to his knowledgeexhibited as required.
that neither exhibition nor oral proclamation ascontemplated by section 15 (3) was eveF done.
When this partition action was instituted in 1966 the PartitionAct No. 16 of 1951 (Cap 69) was in operation. Section 15 (1),(2} and section (3} of the Partition Law correspond to section 15(1). (2) and (4) of the Partition Act.
According to the journal entries of the Partition caseNo. 11168/P under J.E. No. (6) dated 16.9.66 it is stated that"papers under section 12 filed, check and issue for 7.12.66”.
These are the requisite notices which have to be sent to Fiscalto be served on the Grama Sevaka for exhibition On the land.
According to J.E. (10) stated 7,12.66
(1) "Notice of institution served on G.S. and affixed on land".
Proof of publication in the Times of Ceylon filed.
I have perused the original record in the Partition case and Ifipd the Fiscal had made a return to Court dated 24th November1966 in which the Process Server has reported that he servedthe notice by "beating tom-tom and by affixing a duplicate to thefront door of the said building bearing number 142/1 GreenlandRoad Colombo thereof on 18th November 1966".
There is also a further report that he served this notice on theGrama Sevaka, Timbirigasyaya by affixing duplicates to theNotice Board of the Grama Sevaka, Timbirigasyaya on 18thNovember 1968.
These notices are the required notices for institution of aPartition Action and which have to be exhibited on the land andproclaimed by beat of tom-tom under the Partition Act so thatpersons who have any interest in the land ca'n intervene.
Notice of action was also published in the Times of Ceylon andthe newspaper has been filed of record.
The notice was affixed on the front door of 142/1 GreenlandRoad which is the land described in Schedule B of the originalplaint and depicted in Preliminary Plan No. 2240 dated 30.11.66marked B' and filed in the proceedings. The plan is marked Y inthe partition case. According to learned Counsel for petitioner itis a portion of this land the petitioner claims that he hasprescribed to and which he claims he was in possession ofduring this time. The petition of course does not describe the'land he claimed by metes and bounds.
Nowhere in the petition or affidavit does the petitioner evenattempt to explain as to why he did not intervene despite all thispublication and exhibition on the land. He does not even state asto when he first became aware of this. Partition Action, nor doeshe explain the delay in making this application to this Courtalmost six years after judgment was delivered. Petitioner makes abare assertion that no notice of whatever kind or nature' wasgiven to him and that there was no publication.
The petitioner’s claim that there was no notice of action orpublication as required by section 15 (1), (2) and 15 (4) of thePartition Act is without any merit and unfounded.
The next complaint of learned Counsel for the petitioner is thatthe judgment is void and of no force or effect in law because tljejudgment is based on the plan No. 3113 dated 31 st July 1968which is not a due and proper plan under the Partition Act.
It was submitted on behalf of the petitioner that according tothe field notes filed by the surveyor he has not surveyed lot A4shown in the plan although according to what is depicted on theplan 3113 the entire land is purported to have been surveyedand that this plan No. 3113 was prepared in 1968 but theamended plaint was filed in 1974 on which the parties went totrial. Counsel's further submission was that under the PartitionAct a fresh commission should have been issued on theAmended Plaint.
ft would appear that on the original plaint filed on 21stFebruary 1966 the land sought to be partitioned was the landdescribed in Schedule'B in extent A1. R1. P36.25. On this plainta commission was issued to the surveyor to survey the land asrequired by the Partition Act. On this commission the Surveyorafter surveying the land submitted the plan No. 2240 whichshows lot Z in extent 1A. RO. P23.6 as the corpus to bepartitioned and lot Y in extent OA. OR. P 14.3 as the roadwayboth aggregating to A1. RO. P37.9, together with his report.
In these proceedings the plan has been filed marked Btogether with field notes but the report of the suveyor has notbeen filed although reference was made to the report in thepetition and affidavit. This is a very relevant document for thepetitioner's case but the petitioner has chosen not to furnish acopy of the said report. According to the said report (which Ihave perused from the original record) there has been an oralproclamation of the date on which this survey is to take place,and if the petitioner had any right or title to a portion of this landhe would have been present at the survey and made a claim. Thepetitioner was not present at the survey nor did anybody makeany claim on his behalf. According to the report of the surveyorthe survey was done on 30th November 1966 and notice of thesurvey was fixed on this land on 22nd November 1966.
On the application of the plaintiff a second commission wasissued to survey the entire land described in Schedule A to theplaint. The same surveyor executed this Commission andsubmitted plan No. 3113 dated 20th October 1968 togetherwith the field notes and report. Copy of the said plan No. 3113 isfiled in these proceedings marked 'D' together with the fieldnotes. Copy of the report of the surveyor has been producedmarked D1.
Submission of Counsel for petitioner is that on perusing thefield notes attached to plan No. 3113 the field notes do notrelate to A4 in the plan. Lot A4 corresponds to lot Z in the firstpreliminary plan No. 2240. He further submitted that the entireland has not been surveyed as depicted in plan 3113. but onlylots A1 and A2 have been surveyed. He further submitted thatjudgment in this case was based on the second plan No. 3113which is not a survey of the entire land and therefore thejudgment is void.
On perusing the judgment which has been produced marked Git would appear that both plans with the report were produced inthis case. The trial Judge in the very first page of his judgmentrefers to plan No. 2240 marked Y and the report marked Y1. Healso refers to the survey plan 3113 marked X and the reportmarked XI. Thus it is not correct to say that trial proceededonly on the second survey plan. It was also submitted that planNo. 2626A referred to in plans 2240 and 3113 has not beenproduced at the trial. Even that too is not correct because planNo. 2626 A was produced at the trial marked 1D1.
The surveyor.has not shown in the field notes attached to planNo. 3113 the lot A4 because in the earlier plan No. 2240 thatsame lot is shown as Lot Z and the field notes to plan No. 2240showed that that lot has been surveyed. Both plans 2240 and3113 have been made use of at the trial.
According to the judgment of the learned District Judge thecorpus for the partition action has been restricted to the landshovyn in plan No. 2240 which was the land described inSchedule B to the original plaint. The portions added after the
original preliminary, survey plan No. 2260 have been excludedfrom the corpus.
In any event the submission of the learned Counsel forpetitioner is in respect of the entire land referred to in theamended plaint filed in 1974 but this is purely of academicinterest because the corpus to be partitioned is restricted to LotZ in plan No. 2240 which is lot A4 in plan 3113 which isdescribed in Schedule B to the original plaint filed in 1966. Infact the petitioner claims an interest in,lot Z in plan No. 2240and is not interested in any other lots. The submission of learnedCounsel for petitioner that the judgment is null and void as thereis no due and proper plan cannot be upheld. The procedure setout in the Partition Act has been followed in the partition actionand there is no cause for complaint.
The petitioner's father was a monthly lessee of the 4threspondent of the land the subject matter of the said PartitionAction No. P/11168 and the 4th respondent has filed plaint on7th May 1980 in the District Court of Colombo in caseNo. ZL/3435 to have him ejected. A copy of the plaint marked Mwas filed with the petitioner's application. The petitioner's fatherdied and the petitioner was substituted as substituted defendant.The petitioner as substituted defendant filed his answer on 7thNovember 1984 in the same case No. ZL/3435 claiming title tothis land. It was after having filed this answer that the petitionerfiled this petition in Revision in October 1985 to set aside thejudgment in the partition case. As the petitioner was a monthlylessee the petitioner was not made a defendant.
I hold that the petitioner had every opportunity to intervenebefore judgment but did not do so although notice of institutionof the partition action was given as required by the Partition Actand was published in the newspaper. The petitioner did not evenprefer a claim before the Surveyor when he went for thepreliminary survey.
The judgment entered in this case is final and conclusive andthere is no ground on which this judgment can be assailed. Theproceedings and judgment are not tainted with any fundamental
vice and there is no reason whatsoever which would warrant thisCourt to interfere. The petitioner's application therefore fails.
I have so far been dealing with the merits of the applicationmade by the petitioner.
the petitioner has not complied with Rule 46 of the SupremeCourt Rules 1978 in that the petitioner has not annexed to hispetition a copy of the surveyor's report to the preliminary planNo. 2240 although reference is made in the petition to suchreport.
Rule 46 reads thus:
"Every application made to the Court of Appeal for theexercise of powers vested in the Court of Appeal by Articles140 and 141 of the Constitution shall be by way of petition 'and affidavit in support of the averments set out in thepetition and shall be accompanied by originals ofdocuments material to the case of duly certified copiesthereof in the form of exhibits. Application by way ofrevision or restitutio in integrum under Article 138 of theConstitution shall be made in like manner and beaccompanied by two sets of copies of proceedings in theCourt of First Instance, tribunal or other institution".
Compliance with this rule is a mandatory requirementvide Navaratnasingham v. Arumugam (5). This was affirmedin the same case jn the Supreme Court in S.C. Appeal No.6/81.
The copy of the surveyor’s report to the plan No. 2240 isa document material to the case. The surveyor's report tothe second plan No. 3113 has been filed which in turnrefers to the first report. Further the petition and affidavitrefers to a schedule of the land which the petitioner claimshe has prescribed to but there is no schedule either in thepetition or affidavit
In view of these material defects in the application madeby the petitioner, I hold that the petitioner cannot maintainthis application apart from the merits of his application.
I dismiss the petitioner's application with costs.
S. B. GOONEWARDENE. J. — I agree .Application dismissed