040-NLR-NLR-V-50-MUTHUMENIKA-et-al.-Appellants-and-APPUHAMY-Respondent.pdf
162
DIAS J.—Mitthumenilca v. Appuhamy
1048
Present: Dias and Gratiaen JJ.
MUTHTJMENIKA et al., Appellants, and APPUHAMY,Respondent.
S. C. 515—D. C. Kurunegala, 1,362a.
Partition action—Prelirrvinary survey—-Glctirn- before surveyor—Party notnoticed—Decree as hereinbefore provided—Section 9—Duty of plaintiff inpartition action-^Action for damages—Measure of damages.
.Failure to notice a party disclosed' in the surveyor’s report does notdestroy the conclusive effect of a final decree in a partition action.
It is the duty of the plaintiff to see that all the necessary parties arebrought before the Court. Where, therefore, the plaintiff knew thatthere was an intervenient disclosed in the surveyor’s report,^his failureto make such intervenient a party amounts to such a breach of duty aswould give rise to a claim for damages under section 9 of the PartitionOrdinance.
The measure of damages suffered by such person is the value of hisright in the land which he lost by reason of the final decree being entered.
-Ak-PPEAL. from a judgment of the District Judge, Kurunegala.
A. Hayley, K.C., with C. R. Gunaraine, for defendants, appellants.
N.E. Weerasooria, K.C., with W. D. Ounasekera and G. T. Samara-ivickreme, for plaintiff, respondent.
September 8, 1948. Dias J.—
The present plaintiff instituted a partition action, D. C., Kurunegala,1,362, in regard to a land called Kahatagahamulawatta, valued atRs. 1,000. His root of title was a Crown Grant P 1 dated July 19, 1929.The original co-owners were said to be :—
Ukkubanda’s share devolved on the plaintiff ; Singhoappu’s 2/8 devolvedon the defendant to that action subject to the plaintiff’s life interest.Dingirimenika’s share was alleged to have also devolved on the defendant,but as those deeds were not available the plaintiff did not recite them inbis plaint in the partition action.
That action had rather a chequered career. The journal of the case isthe exhibit D 6. The action was instituted in 1943. Although thiswas a partition action, and the law requires that no summons shouldissue until the lis pendens is registered, there is nothing to show that thiswas done. Summons was served on the sole defendant, who is a servantof the plaintiff. He filed no answer but appeared in person and acceptedthe share allotted to him in the plaint. Thereupon a commission was
Cur. adv. vult.
TJkkubanda, who was entitled toDingirim enika, who was entitled toSinghoappu, who was entitled to
3/8
3/8
2/8
DIAS J.—JSt uthumenika v. Appuhamy.
163
issued for what is known as the preliminary survey. The plan wasfiled on July 7, 1943, whereupon the Court fixed the ease for “ ex partetrial
Had the plaintiff’s proctor done his duty, or had the Court been vigilant,the surveyor’s report D 1 dated July 5, 1943, would have indicated thatone K. M. Kiribanda or some person on his behalf had made a claim tothe corpus sought to he partitioned. Ordinarily, in such cases, the Courtwould add the party disclosed and order process to issue on him so as toenable him to intervene. This was not done.
The trial took place in December, 1943. We do not.know what evidence,-oral or documentary, was led, and whether the defendant produced hisdeeds or proved his title. After trial interlocutory decree was enteredand a commission was issued for the final partition. The report of thesurveyor is dated April 18, 1944, and states that he made the partition“ after due notice to the parties and in the presence of the defendantafter affixing notices on the land and by beat of tom-tom have done inaccordance with Ordinance No. 10 of 1 863 ”. Final decree was enteredon June 21, 1944.
The plaintiff then took out a writ of possession. On November 3,1944, when the Fiscal endeavoured to place the plaintiff in possession ofhis divided share, he was obstructed by the appellants and possessioncould not be given him.
Action under section 325 of the Civil Procedure Code had to be takenby the plaintiff thereafter. The Court ordered both parties to file properpleadings. The result is that the subsidiary proceedings (D. C., Kurune-gala, 1,362a) is an action by the plaintiff to the original action againstthe two appellants who are in possession of the disputed lot B.
The plaintiff is now seeking to be declared entitled to Lot B, for theejectment of the appellants and for damages.
The appellants, on the other hand, contend that Lot B is the landcalled Walaspitiyapahalahena. Admittedly, the land claimed by bothsides is the same land. The appellants say that the original owners wereRanhamy and Appuhamy, and that on the chain of title pleaded bythem that land has devolved on them. They assert that Ukkubanda,Dingirimenika and Singhoappu (who are the persons through whomthe plaintiff claims) fraudulently obtained the Crown grant dated July19, 1927. In D. C., Kurunegala, 13,919 K. M. Kiribanda (the husbandof the 1st appellant) sued Singhoappu (1st defendant), Ukkubanda (2nddefendant), Magiris (3rd defendant) and Podinona (4th defendant) tovindicate title. In that case K. M. Kiribanda and Podinona weredeclared entitled to the land in dispute and that they and their successorsare in possession. They assert that the partition action was collusive,that the decree in case No. 13,919 operates as res judicata, and that thedecree in the partition action does not bind them because they weregiven no notice of it, and because there has been no proper investigationof title. Alternatively, they claim that if the final decree is held to bebinding on them, they should be awarded a sum of Rs. 1,000 as damagesunder section 9 of the Partition Ordinance.
164
DIAS J.—Muthumenika v. A-ppuhamy
It is obvious from the evidence led in the second trial that when thesurveyor went to the land to make the preliminary plan, the lot in disputewas in the possession of a person claiming through or on behalf of K. M.Kiribanda (deceased). The plaintiff in his evidence says that the 1stappellant was present. She however denies this. Plaintiff says that heexpected trouble from the appellants and that is the reason why heinstructed his proctor to take out a writ of possession. It is also clearthat had the facts stated in the surveyor’s report regarding the claimon behalf of Kiribanda been brought to the notice of the Judge, thecourse which the trial subsequently took would have been different.There is, however, no evidence before us to hold that the partition decreewas obtained fraudulently or eollusively. The Privy Council has laiddown that in civil proceedings fraud must be established beyondreasonable doubt. A finding of fraud cannot be based on mere suspicionor conjecture—Narayanan Chettiar v. Official Assignee 1, Coomaraswamy v.Vivayagamoorthy2. The appellants, on whom this heavy onus rested,have led no evidence to establish this.
We are, therefore, in the presence of a final decree which has beenentered in a partition action, and which binds the whole world. Theburden of proof rests on the appellants to establish some ground to showthat it does not bind them.
It is urged that the conclusive nature of the final decree is destroyedby the fact that neither the plaintiff nor the Court took steps to noticethe party disclosed in the surveyor’s report.
The Partition Ordinance does not make provision for interventions.Owing to local conditions, however, a long established practice hasgrown up of admitting interventions up to the final decree stage andup to the time a decree for sale is entered. As an auxilliary to this,another long standing practice has grown up of ordering what is called apreliminary survey. • The practice in different Courts vary, but eitherbefore the issue of summons or more frequently after all the parties havebeen brought before the Court, a commission is issued to a surveyor to-go to the land and demarcate the corpus which the plaintiff seeks topartition. The reason for this is stated in Jayawardene on Partition atp 71 : “ If a survey is made on the orders of the Court on notice publiclygiven, persons claiming shares or interests in the land sought to bepartitioned, whom the plaintiff has failed to join as parties, will have anopportunity of intervening and asserting their claims before the Courtproceeds to hear evidence. Otherwise, claimants who have not beenmade parties to the action will, as a rule, not have any notice of the action^except perhaps accidentally, until after evidence has been recorded andan interlocutory or final decree entered, the commissioner proceedsto the spot to survey and partition, or to sell the land under section 5or 8. Very frequently in these suits, claimants who have been kept outof the case'by the plaintiff, or the defendant, come into Court withpetitions of intervention, after the commissioner has proceeded to thespot to execute the interlocutory decree, and only those who have to dealwith such interventions know the delay, trouble and waste of time causedthereby ”. It will be noted that these preliminary surveys are not anessential step provided by the Partition Ordinance itself. Nevertheless,they are now recognised aa a regular step in the action.
1 {1941) A.. I. R. Privy Council 93.2 {1945) 46 N. L. R. at p. 249.
DIAS J.—Muthwmenika v. Appuhamy
165
Did the failure of the Court to notice the intervenients destroy theconclusive effect of the final decree ? The power of the Court to add aparty to any action is governed by section 18 of the Civil Procedure Code.That power is discretionary. I do not think the failure of a Judge toperform an act which is discretionary can affect the final decree in apartition case. In order to deprive a final decree in a partition actionof its conclusive character it is" necessary in terms of section 9 of theOrdinance to show that such decree was not “ given as hereinbeforeprovided ”. A Divisional Court in Siwanadicm Chetty v. Talawasingiia1held that this means that in order to attack the conclusive nature of afinal decree it must be shown that there was a failure to observe suchessential steps as might be considered imperative, i.e.-, by the Ordinanceitself. As I have pointed out it is nowhere provided by thePartition Ordinance that it is the duty of a plaintiff to draw theattention of the Court to possible intervenients. The duty of theplaintiff prescribed by the Ordinance is to be found in section 2. Hemust disclose the names of all the co-owners, and mortgagees. There isno statutory duty cast on him to disclose intervenients. That duty hasbeen imposed on him by a practice having the force of law which hasbeen evolved by judicial interpretation. My view is that while hisfailure to disclose an intervenient he is aware of or should have beenaware of, may give rise to a claim for damages against him under section 9,it will not entitle an intervenient who has been shut out by such omissionto attack the validity of the final decree on the ground that it was not“ given as hereinbefore provided ”.
It is next contended that there was no proper investigation of titlein the partition action, and that, consequently, the final decree is notconclusive. Assuming that the deeds produced in that action have notbeen proved by calling the notary and one attesting witness as requiredby the Evidence Ordinance, the onus was still on the appellants to showthat the oral evidence adduced did not establish title. For example,the claimants in a partition action may have no deeds or documents.Their title may be based exclusively on prescriptive possession andinheritance. It cannot be assumed in the absence of proof that the evi-dence led was defective. It was for the appellants to produce certifiedcopies of the evidence led in the partition case to show that there was noproper investigation of title. In the absence of such evidence it cannotbe said that they have succeeded in rebutting the presumption ofregularity attaching to judicial acts.
It is also argued that the requirements of the proviso to section 5 ofthe Partition Ordinance have not been complied with in regard to thenotice to be given before the final partition is made. The commissioneris the officer of the Court. In this case he has reported : “I made apartition of the land after due notice to the parties ….. after
affixing notices on the land and by beat of tom-tom ” in accordancewith the provisions of the Partition Ordinance. When a person callson a friend and relates that fact to another, he does not say “ I walkedup to the front door, rang the bell, asked if they were at home, andwalked in after wiping my feet on the door mat ”. He merely says
* (1927) 28 N. i. R. at p. 509.
166
DIAS J.—M.uthumenika v. Appukamy
** I called on X ”, and it "will be presumed that he did the other thingswhich he does n'Ot refer to. In the same Way, when the commissionermade his report, there is a rebuttable presumption that he performedall the acts required to be done by law. It is for the appellants to rebutthat presumption of regularity. They have failed to do so.
It is, therefore, impossible to hold that the final decree in this casewas not given “ as hereinbefore provided ” within the meaning of section9 of the Partition Ordinance. I hold that the final decree is valid andbinding and wipes out whatever title the appellants had to this land.
In regard to the appellants’ claim for damages, the position is different.The facts prove that the plaintiff never had possession of the land indispute. When the preliminary survey was made the plaintiff became -• aware that the 1st appellant was in possession and was claiming the landthrough her husband, X. M. Kiribanda. The act of the plaintiff in pro-ceeding with the case without disclosing a possible intervenient was awrongful act, and was a breach of a duty incumbent on a plaintiff to apartition action. It was not a duty expressly created by the PartitionOrdinance, but is one which arises out of the practice established by along established cur.-ms curiae having the force of law. In the case ofCassim v. De Vos1 it was laid down that where a person knowing thatanother claimed to be the owner of a land instituted an action for parti-tion without making that other a party thereto, the latter was entitledto damages. Ennis J. with whom de Sampayo J. agreed said “ It isunnecessary to consider whether the act of the 1st defendant was frau-dulent or wilful. It is sufficient that he caused damage, and that it wasdone knowing that the present plaintiff has preferred a claim to the land ”.In Suweneris v. Mohamed2 a I>ivisional Court held that “a right torecover damages must be based on a breach of a legal duty, and in myopinion the words of the proviso can only point to some breach by theparty sought to be charged of a duty which he owed to the person seekingto recover damages. They cannot, in my opinion, refer to somethingwhich is solely attributable to the operation of the Ordinance. I can seenothing which the defendant has done or omitted which his duty to theplaintiffs required him not to do -or to omit. By no fault or unfairnesson his part, by no lack of care or inquiry which he was under any obli-gation to make, but simply and solely by availing himself of the Parti-tion Ordinance he has given an indefeasible title to what he purchasedunder due process of law —See also Almeada v. Dissanayalca 3.
It is well established that it is the plaintiff whose duty it is to havethe management and conduct of a partition action through the Court.The Judge looks to the plaintiff and his legal advisers to see that allsteps are taken, and that all the necessary parties are brought before theCourt. Even an uncontested partition case takes some time before itterminates in a final decree. Therefore, even if the plaintiff and hisproctor did not know at the outset that there was an intervenient dis-closed in the surveyor’s report, it was their duty to take steps by exami-ning the record and relevant papers to satisfy themselves before finaldecree was entered that nobody is shut out. Their failure to do so inmy opinion amounts to such a breach of the duty owed to the 1st appellant
i [1924) 25 N. L. S. 447.* [1928) 30 N. L. R. 11.
3 (1948) 49 N. L. RJ257.
In re Aalin Nona
167
which gives rise to a claim for damages. There are also these furthercircumstances: Admittedly the land claimed by the appellants is apart of the corpus partitioned. There was the earlier decree in theaction No. 13,919 against the plaintiff's predecessors in title. Thereis the fact that the plaintiff knew that there were persons in possessionclaiming adversely to him and which made him realise that he couldnot get possession. The cumulative effect of all these facts, coupledwith the failure of the plaintiff to intimate to the Court that there was atleast one intervenient, is a breach of a duty he owed to the appellants.In my opinion there was here not only damnum,, but injuria as well.
The measure of the damages suffered by the appellants is the valueof their rights in the land which they lost. On this point there is noevidence. In the partition action the plaintiff valued the whole corpus.at Rs. 1,000. We do not know what the value of lot B is. The case must,therefore, go back in order that the appellants’ damages may be assessed,unless the parties agree on the quantum of damages. This will be thevalue of lot B which the appellants have lost.
I affirm the decree declaring the plaintiff entitled to lot B, the orderfor the ejectment of the appellants therefrom and for the payment ofdamages by the appellants to the plaintiff at Rs. 50 per annum. I setaside the decree dismissing the appellants’ claim in reeonvention andenter judgment in their favour for the damages sustained by them inconsequence of being deprived of their title to lot B. The case will goback to the District Court for the assessment of these damages unlessthe parties reach an agreement on this point. The measure of theappellants’ damages will be the value of lot B at the date of the finaldecree. This sum the plaintiff must pay to the appellants. Bach partywill bear their own costs in the lower Court. The plaintiff will pay tothe appellants half the costs of this appeal.
Oeatuin J.—I agree.
Decree varied.