PARTITION

(1) Every partition action shall be instituted by presenting a written plaint to the District Court, within the local limits of whose jurisdiction the land which is the subject-matter of the action is situated in whole or in part.

(2) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any land is situated, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any partition action relating to the land; and such action so entertained and disposed of shall for all purposes be deemed to be and to have been duly instituted in a court of competent jurisdiction.

(1) In addition to the particulars required to be stated in a plaint by the Civil Procedure Code, every plaint presented to a court for the purpose of instituting a partition action shall contain the following particulars:-

(2) There shall be appended to every plaint presented to a court for the purpose of instituting a partition action, a memorandum substantially in the form set out in the Second Schedule to this Law, nominating in accordance with section 81, a person to be the legal representative of the plaintiff for the purposes of the action, in the event of his death pending the final determination of the action.

(a) to any right, share or interest to, of, or in the land to which the action relates, whether vested or contingent, and whether by way of mortgage, lease, usufruct, servitude, trust, life interest, or otherwise, or

(A) to any improvements made or effected on or to the land: Provided that in the case of a mortgage, the mortgagee or any person claiming any interest under him shall be included as a party only if he has registered an address for service of legal documents in terms of sections 6 and 28 of the Mortgage Act ;

Provided further that if such mortgagee or person aforesaid claims under an instrument executed more than fifteen years prior to the institution of the action, he shall not be a necessary party to such action, unless he has registered an address for service of legal documents in terms of the aforesaid provisions of the Mortgage Act within a period of ten years prior to the date of institution of the action.

(1) The plaintiff in a partition action shall file or cause to be filed in court with the plaint-

(2) The application or each of the applications referred to in subsection (1) of this section shall be in triplicate and marked “original”, “duplicate”, and “triplicate” and substantially in the form prescribed by the Registration of Documents Ordinance and shall contain a blank space for the insertion of the number to be assigned to the action by the court.

(3) Notwithstanding anything to the contrary in the Registration of Documents Ordinance or in any regulation made thereunder, no fee shall be charged for the registration of a partition action as a Us pendens under that Ordinance.

(a) return the plaint so that the plaintiff may, then and there or within such time as may be fixed by the court, comply with those requirements; or

(b) reject the plaint: Provided that nothing herein contained shall affect the right of the court to reject the plaint on any ground specified in section 46 of the Civil Procedure Code.

(1) Where the plaint in a partition action, is accepted, the court shall forthwith –

In estimating the costs of such preliminary survey, the court shall have regard to such rates as may be prescribed by regulations.

(1) After the preliminary survey of the land to which the partition action relates is made, the court shall determine the actual costs of such survey in accordance with the rates prescribed under section 8 and if the actual costs so determined are more than the estimated costs determined under section 8, shall make order specifying the party by whom, and the date on or before which, the amount of the difference between such actual costs and such estimated costs shall be deposited in court. The court may, for sufficient cause, make a further order or orders extending the time for the deposit of such amount.

(2) If the amount due to a surveyor as the costs of the survey of a land to which a partition action relates is not paid as ordered by the court, it shall be lawful for the court to direct the recovery thereof in the same action as though the order for the payment of that amount were a decree in favour of that surveyor against the party ordered to pay that amount.

(1) After a partition action is registered as a lis pendens under the Registration of Documents Ordinance and after the return of the triplicate referred to in section 11, the plaintiff in the action shall file or cause to be filed in court a declaration under the hand of an attorney-at-law certifying that all such entries in the register maintained under that Ordinance as relate to the land constituting the subject-matter of the action have been personally inspected by that attorney-at-law after the registration of the action as a lis pendens, and containing a statement of the name of every person found upon the inspection of those entries to be a person whom the plaintiff is required by section 5 to include in the plaint as a party to the action and also, if an address of that person is registered in the aforesaid register, that address.

(2) The plaintiff in a partition action shall, together with the declaration referred to in subsection (1) of this section, file or cause to be filed in court-

(3) If the plaintiff without sufficient cause fails to comply with the provisions of the foregoing subsections of this section, the court may dismiss the action.

(1) Where the Court is satisfied that a partition action has been registered as a lis pendens under the Registration of Documents Ordinance, that the estimated costs of the preliminary survey of the land to which the action relates have been deposited in Court and that the plaintiff in the action has complied with the provisions of section 12, the Court shall order that such summonses, translations of summonses, copies and translations of the plaint or the concise statements, as the case may be, copies of the notices and copies of the translations of the notices filed in court under paragraphs (b), (c), (d), (f) and (g) of subsection (2) of section 12 be sent by registered post to the defendant and the respective Grama Niladharis; and that copies of the notice filed under paragraph (f) of subsection (2) of section 12, together with copies of translations thereof be transmitted to the Fiscal for exhibition and proclamation as provided for in subsection (3) of section 15;

(2) When making an order under subsection (1) of this section, the court shall appoint a date on or before which the defendants are required to file their statements of claims, if any, and to comply with the other requirements of the summons. The date so appointed shall be fixed with reasonable regard to the time ordinarily required for the due service of the summons and shall be a date not earlier than thirty days after the initial date fixed for the return to the commission for preliminary survey.

(3) The Registrar or any other officer of the court shall insert the date appointed by the court under subsection (2) of this section in such summonses, translations of summonses, copies of the notice and copies of the translations of the notice as are filed in court under subsection (2) of section 12, shall sign them and cause them to be sent by registered post

(4) If the language of any defendant is not the language of the court there shall be attached to the summons sent by registered post to that defendant a translation of the summons and a translation of the plaint or concise statement, as the case may be, in the language of that defendant.

(1) Where the court orders the service of summons on the defendants in a partition action, the court shall order that a copy of the notice and a copy of each translation thereof filed in court under paragraph (g) of subsection (2) of section 12 be sent by registered post to the Grama Niladhari of the division or of each of the divisions in which the land or each of the lands to which the action relates is situated.

(2) Every grama seva niladhari to whom any copy of a notice and any copy of a translation thereof are sent by registered post under subsection (1) of this section shall cause such copies to be exhibited in a conspicuous position at his office for a period of not less than thirty days, and shall forward to court a report to that effect substantially in the form set out in the Second Schedule to this Law.

(3) The Fiscal shall cause-

(1) Where the court orders the service of summonses on the defendants in a partition action, the court shall forthwith order the issue of a commission to a surveyor directing him to survey the land to which the action relates and to make due return to his commission on a date to be fixed therein, which date shall be a date earlier than thirty days prior to the date specified in the summons:

Provided that the court may on application made by the Commissioner and for reasons to be recorded, extend, from time to time, the date fixed in the Commission for the return thereof, so however, that each such extension shall not exceed sixty days.

(2) The commission issued to a surveyor under subsection (1) of this section shall be substantially in the form set out in the Second Schedule to this Law and shall have attached thereto a copy of the plaint certified as a true copy by the registered attorney for the plaintiff. The court may, on such terms as to costs of survey or otherwise, issue a commission at the instance of any party to the action, authorizing the surveyor to survey any larger or smaller land than that pointed out by the plaintiff where such party claims that such survey is necessary for the adjudication of the action.

(3) Where the court orders the issue of a commission to a surveyor under subsection (1) of this section, it shall in addition order the issue to such surveyor of such number of copies of a notice substantially in the form t out in the Second Schedule to this Law together with the translations thereof, as the court may deem sufficient in the circumstances, to be served on any person (not being a party to the action) o . his agent who at the time of the survey may prefer any claim to the land to which the action relates.

(4) The surveyor shall serve the copy of the notice referred to in subsection (3) of this section on any person (not being a party to the action) or his agent who at the time of the survey prefers any claim, by personally tendering to such person or his agent such copy together with the translation thereof in the language of such person or his agent whose language is not the language of the court.

(5) The surveyor shall obtain from the person on whom a notice is served under subsection (4) of this section an acknowledgement of the receipt of such notice by signature or thumb impression of such person or his agent and the date of such service.

(6) Where any person on whom a notice is served under subsection (4) of this section is subsequently added as a defendant to the action, the notice served on such person or his agent by the surveyor under subsection (4) of this section shall be deemed to be a summons served on such person in such action under the provisions of this Law, and no further service of summons on such person shall be necessary.

(1) On receipt of his commission, the surveyor shall fix a date for commencing the survey of the land referred to therein and shall, not less than fourteen days before that date, issue notice in writing to all the parties named in the plaint that he proposes to commence the survey of the land on that date. Such notice to any party shall be sent to him by registered post to the address stated in the plaint.

(2) In addition to the written notice required to be issued to the parties under subsection (1) of this section, the surveyor shall, not less than fourteen days before the date fixed by him for commencing the survey, cause the fact that he will commence the survey on that date to be orally proclaimed, after beat of tom-tom, on the land to be surveyed.

(1) The surveyor shall duly execute the commission issued to him and, in doing so shall, where any boundary of the land surveyed by him is undefined, demarcate that boundary on the ground by means of such boundary marks as are not easily removed or destroyed and shall, on or before the date fixed for the purpose, make due return thereto and shall transmit to the court-

(2) The documents referred to in paragraphs (a), (b) and (c) of subsection (1) of this section may, without further proof, be used as evidence of the facts stated or appearing therein at any stage of the partition action :

Provided that the court shall, on the application of any party to the action and on such terms as may be determined by the court, order that the surveyor shall be summoned and examined orally on any point or matter arising on, or in connexion with, any such document or any statement of fact therein or any relevant fact which is alleged by any party to have been omitted therefrom.

(3)

(1) On or before the date specified in the summons issued in a partition action or on or before such later date as the court may fix for the purpose-

(2)

(3)

(1) The court shall order notice of a partition action to be sent by registered post-

(2)

(3) Any person receiving notice under subsection (1) of this section shall not be added as a party to the action unless he applies by motion in writing to be added on or before the date specified in the notice.

(4) Where such person is added as a party, the court shall forthwith appoint a date on or before which such party shall file his statement of claim.

(5) The provisions of section 69 shall not apply to a person to whom notice has been sent under this section.

(1) Every party to a partition action shall, not less than thirty days before the date of the trial of the action, file or cause to be filed in court a list of documents on which he relies to prove his right, share or interest to, of or in the land together with an abstract of the contents of such documents. No party shall, except with the leave of the court which may be granted on such terms as the court may determine, be at liberty to put any document in evidence on his behalf in the action if that document is not specified in a list filed as aforesaid. Nothing in this subsection shall apply to documents produced for cross-examination or handed to a witness merely to refresh his memory.

(2) Any party to a partition action who desires to inspect any document specified in the list of documents filed in court under subsection (1) of this section by any other party to the action may, by motion exparte, obtain an order of court to that other party to produce that document at such place and within such time as may be specified in the .order, for the inspection of the first- mentioned party or of his registered attorney and to permit such party or registered attorney to take copies thereof. The party obtaining such order may himself serve or cause to be served such order on that other party.

(3) Where any party to a partition action to whom an order under subsection (2) of this section is issued, fails to comply with that order in regard to any document to which that order relates, he shall not afterwards be at liberty to put that document in evidence on his behalf in the action unless he satisfies the court that he had sufficient cause for not complying with the order.

(4) In this section, ” documents” shall mean deeds, survey plans or other writings upon which any claim of title is based.

(1) After the expiry of the period fixed for the filing of statements of claim, and after the return of the surveyor to the commission for preliminary survey has been received, the court shall appoint a date for the case to be called in open court in order to fix the date of trial of the action and shall give notice in writing of such date by registered post to all parties who have furnished a registered address and tendered the costs of such notice as provided by subsection (3) of section 19.

(2) On the day appointed under subsection (1) of this section, or where it appears to the court that the case is not ready for trial, on any later date to which the matter shall on that date have been postponed, the court shall fix the date of trial of every partition action in open court. It shall not be necessary to give notice of the date of trial to any party, unless the court in special circumstances otherwise orders.

(1) On the date fixed for the trial of a partition action or on any other date to which the trial may be postponed or adjourned, the court shall examine the title of each party and shall hear and receive evidence in support thereof and shall try and determine all questions of law and fact arising in that action in regard to the right, share, or interest of each party to, of, or in the land to which the action relates, and shall consider and decide which of the orders mentioned in section 26 should be made.

(2) If a defendant shall fail to file a statement of claim on the due date the trial may proceed ex parte as against such party in default, who shall not be entitled, without the leave of court, to raise any contest or dispute the claim of any other party to the action at the trial.

(3) The court may permit a party in default to participate in the trial after notice to the other parties to the action affected by the claim or dispute set up or raised by such party in default, on being satisfied of the bona fides of such claim or dispute, and upon such terms as to costs and filing of a statement of claim or otherwise as the court shall deem fit.

(1) At the conclusion of the trial of a partition action, or on such later date as the court may fix, the court shall pronounce judgment in open court, and the judgment shall be dated and signed by the Judge at the time of pronouncing it. As soon as may be after the judgment is pronounced, the court shall enter an interlocutory decree in accordance with the findings in the judgment, and such decree shall be signed by the Judge.

(2) The interlocutory decree may include one or more of the following orders, so however that the orders are not inconsistent with one another:-

(3) Where by virtue of an order made under subsection (1), a person is entitled to an undivided extent of land which, by reason of its trivialness in extent or value or of it being less than the minimum extent required by any written law regulating the subdivision of land for development purposes, the court considers it inexpedient to allot to that person a divided portion, the court may, in lieu of ordering the allotment of a divided portion of the land to mat person and on the payment to that person of such compensation as may be determined by court, allot that extent to any other person who is entitled to an undivided extent of the land to which the action relates.

(4) Where a partition action is in respect of two or more lands, the interlocutory decree may, in lieu of ordering the allotment of divided portions in all such lands to the persons entitled thereto, order that-

whether with or without any divided portion or portions of any other such land or lands, be allotted to any such person, whether with or without the award to him of owelty or of compensation for any improvements made by him to any such land. In any order under this subsection the court shall determine the amount of any owelty or of any compensation for improvements and the party by whom and the party to whom such owelty or compensation shall be paid.

(5) Where in an interlocutory decree the court has ordered the sale of a share or portion of the land and the partition of the remainder, the court may allot to each of the parties such share of the money to be realized by the sale of the share or portion of land ordered to be sold, or such share of the soil in the remainder ordered to be partitioned, or such share of both the money and the remainder of the land, as the court may consider just in the circumstances of each case.

(1) Where the court decides that the land shall be sold in lots, the court shall, at the time of pronouncing judgment or on a later date notified by the court, order the issue of a commission for the division of the land into lots to a person to be named in the order and in open court fix the returnable date of the commission.

(2) The court shall at the time of pronouncing judgment or on a later date notified by the court, order the issue of a commission for sale, or for partition, or for both sale and partition, or of two separate commissions for sale and for partition as the case may require, to a person to be named in the order and shall in open court fix the returnable date of the commission:

Provided that, where the court orders a sale, the court shall, if the value of the extent of land to be sold is not more than two thousand five hundred rupees, and may, if such value is more than two thousand five hundred rupees, order the Fiscal to conduct the sale in accordance with the provisions of this Law.

(3) Where the court decides that the land or any portion thereof shall be partitioned, the commission under subsection (2) of this section shall be issued to the surveyor who made the preliminary survey unless the court directs that such commission shall be issued to some other surveyor.

(4) The court may from time to time extend the returnable date referred to in subsection (1) or subsection (2) of this section.

(5) The court may revoke a commission issued under this section and order the issue of a fresh commission.

(a) a copy of the interlocutory decree certified as a true copy by the Registrar or by any other officer of the court, or by the registered attorney for the party who takes out the commission, and

(b) a statement specifying the place of residence of each party who has been allotted in the interlocutory decree .any right, share or interest to, of or in the land to which the decree relates.

(1) Where the court orders commission to be issued, the court shall-

(2) If the costs are not deposited in court by the party specified on or before the date fixed under subsection (1) of this section or within such further time as may be allowed by the court on application made in that behalf, the court may order or permit any other party to deposit the costs and fix a date for that purpose.

(3) If the costs are not deposited by the party ordered or permitted so to do under subsection (2) of this section on or before the date fixed for the purpose or within such further time as may be allowed, the court may dismiss the action or make such other order as the circumstances may require.

(4) The party depositing costs under this section shall be given credit therefor in such manner as the court may direct.

(5) After the survey for the final partition of the land has been made, the court shall determine the actual costs of such survey in accordance with the rates prescribed under paragraph (a) of subsection (1) and if there is any deficiency, the court shall make an order specifying the person by whom, and the date on or before which, the amount of such deficiency shall be deposited in court.

(6) If the amount of such deficiency is not paid on the due date as ordered by court, it shall be lawful for the court to direct the recovery thereof in the same action as though the order for the payment of that amount were a decree in favour of that surveyor against the party ordered to pay that amount-

(1) On receipt of a commission to partition the land, the surveyor shall fix a date for partitioning the land and shall, at least fourteen .days before that date, issue notice in writing to each party mentioned in the statement attached to the commission that the land will be partitioned on that date. .

(2) A notice to any party under subsection (I) of this section shall be sent to him by registered post addressed to his place of residence specified in the statement attached to the commission.

(3) In addition to the written notice required to be issued under subsection (1) of this section the surveyor shall, at least ten days before the date fixed for partitioning the land, cause to be orally proclaimed on the land after beat of tom-tom, the fact that the land will be partitioned on that date.

(4) The date fixed under subsection (1) of this section for partitioning the land may from time to time be altered to a later date by the surveyor by written notice addressed to the parties mentioned in that subsection. Every such notice shall, not less than seven days before such later date, be served in the manner provided in subsection (2) of this section and a copy of the notice shall, in addition, be exhibited in a conspicuous position on the land.

(1) The surveyor shall, on the date or altered date fixed for partitioning the land, proceed to the land and prepare a scheme of partition in conformity with the interlocutory decree and with any special directions contained in his commission and demarcate the divided portions on the land by means of such boundary marks as are not easily removed or destroyed. He shall Inform the parties present of the returnable date of-his commission fixed under section 27.

(2) Where any divided portion or portions that are to be allotted to any person under an interlocutory decree are less than the minimum extent required by written law regulating the subdivision of land for development purposes, the surveyor shall, so far as is practicable, divide the land in such a manner as would enable the allotment or sale of such portions as one lot.

(1) The surveyor shall make his return to the commission, verified by affidavit, substantially in the form set out in the Second Schedule to this Law, on or before the returnable date or the extended date (as the case may be) fixed under section 27, and together with such return he shall transmit to the court-

(2) Where no provision is made in the interlocutory decree for the allotment of a lot in common, the surveyor shall not allot a lot in common to any parties without the written consent of those parties.

(1) Where under any scheme of partition prepared by a surveyor, payment has to be made to or by any party to a partition action in respect of compensation for improvements to the land or of owelty, the amount of such payment shall, in the first instance, be assessed by the surveyor and shall be finally determined by the court.

(2) The amount determined by the court, under subsection (1) of this section or under subsection (4) of section 26, as compensation for improvements or as owelty shall, from the date on which final decree is entered, be a charge on the portion of the land or the extent of land finally allotted to the party made liable for the payment of such compensation or owelty, as the case may be.

(1) On the date fixed under section 35,
or on any later date which the Court may fix for
the purpose, the Court may, after summary
inquiry:

(2)The provisions of sections 41,42,43,44, 45, 45A, 46, 47 and 48(2) shall, mutatis mutandis, apply to a sale ordered under paragraph (b) of subsection (1).

(1) The person who receives a commission to divide a land into lots for the purpose of the sale of the land in lots shall make his return to the commission verified by affidavit on or before the returnable date or the extended returnable date fixed under section 27, and together with such a return he shall transmit to the court-

(2) After the person referred to in subsection (1) of this section makes a return to the commission, the court shall fix a date for the consideration of the scheme of division of the land into lots proposed by such person. On such date, or on any later date which the court may fix for the purpose, the court shall after summary inquiry confirm such scheme with or without modification.

(1) Where in a partition action the court orders the issue of a commission to any person to sell the land in lots or otherwise than in lots or orders the Fiscal to sell the land, the court shall fix a date on or before which that person or the Fiscal, as the case may be, shall transmit to the court a valuation of the land.

(2) The valuation referred to in subsection (1) of this section shall show separately and in detail-

(3) After considering the valuation under the preceding provisions of this section and after such inquiry as the court may consider necessary, the court shall determine the value of the land or, where the land is to be sold in lots, the value of each of the lots and the value of the improvements.

(1) After determining the value of the land or, where the land is to be sold in lots, the value of each of the tots, and the value of the improvements, the court shall prescribe the conditions of sate and issue such orders as the court may consider necessary for the conduct of the sale, including orders as to the manner in which and the number of days before which notice of the sale or adjourned sale of the land shall be given and published by the person responsible for the sale,

(2) The court may, on application made in that behalf by a co-owner who desires to purchase the land or a lot, specify the terms as to credit to be allowed to him at the sale, having regard to the amounts, if any, payable by him by way of pro rata costs, compensation for improvements, owelty, mortgage debts or otherwise.

(a) first put up the land or, where the land is to be sold in lots, put up each lot to auction among the co-owners thereof, and if the highest bid made at that auction is not less than the value of the land or of that lot determined by the court under section 38, declare the co-owner by whom that bid was made to be the purchaser of the land or of that lot; and

(b) if no co-owner becomes the purchaser of the land or of any lot, put the land or that lot up to public auction, permit the co-owners to bid thereat, and declare the highest bidder- at such public auction to be the purchaser of the land or of that lot.

(1) Any person dissatisfied with an order of the Court made under section 45 may prefer an appeal against such order to the Court of Appeal, with the leave of the Court of Appeal first had and obtained

(2) The provisions of Chapter LVIII of the Civil Procedure Code relating to applications for leave to appeal shall, mutatis mutandis, apply to applications for leave to appeal against orders made under sections 36A and 45A’ ‘.

(1) The court shall cause to be prepared by a party named by the court a schedule of distribution showing the amount which each party is entitled to withdraw out of the money deposited in court.

(2) No money shall be withdrawn from court by any party until the schedule of distribution has been approved by the court.

(3) A party entitled to compensation in respect of a plantation or a building or otherwise shall share proportionately with the other parties in any gain or loss, as the case may be, resulting from the sale of the land at a figure above or below the value determined by the court under section 38.

(1) Save as provided in subsection (5) of this section, the interlocutory decree entered under section 26 and the final decree of partition entered under section 36 shall, subject to the decision on any appeal which may be preferred therefrom, and in the case of an interlocutory decree, subject also to the provisions of subsection (4) of this section, be good and sufficient evidence of the title of any person as to any right, share or interest awarded therein to him and be final and conclusive for all purposes against all persons whomsoever, whatever right, title or interest they have, or claim to have, to or in the land to which such decree relates and notwithstanding any omission or defect of procedure or in the proof of title adduced before the court or the fact that all persons concerned are not parties to the partition action; and the right, share or interest awarded by any such decree shall be free from all encumbrances whatsoever other than those specified in that decree. In this subsection ” omission or defect of procedure ‘* shall include an omission or failure-

In this subsection and in the next subsection ” encumbrance” means any mortgage, lease, usufruct, servitude, life interest, trust, or any interest whatsoever howsoever arising except a constructive or charitable trust, a lease at will or for a period not exceeding one month.

(2) Where in pursuance of the interlocutory decree a land or any lot thereof is sold, the certificate of sale entered in favour of the purchaser shall be conclusive evidence of the purchaser’s title to the land or lot as at the date of the confirmation of sale, free from all encumbrances whatsoever except any servitude which is expressly specified in such interlocutory decree and a lease at will or for a period not exceeding one month.

(3) The interlocutory decree and the final decree of partition entered in a partition action shall have the final and conclusive effect declared by subsection (1) of this section notwithstanding the provisions of section 44 of the Evidence Ordinance, and accordingly such provisions shall not apply to such decrees.

The powers of the Court of Appeal by way of revision and restitution in integrum shall not be affected by the provisions of this subsection,

(4)

(5) The interlocutory decree or the final decree of partition entered in a partition action shall not have the final and conclusive effect given to it by subsection (1) of this section as against a person who, not having been a party to the partition action, claims any such right, title or interest to or in the land or any portion of the land to which the decree relates as is not directly or remotely derived from the decree, if, but only if, he proves that the decree has been entered by a court without competent jurisdiction.

(6) Where by an interlocutory or final decree a right, share or interest has been awarded to a party but such party was dead at the time, such decree shall be deemed to be a decree in favour of the representatives in interest of such deceased person at the date of such decree.

(7) The provisions of this section shall apply to all interlocutory and final decrees entered in partition actions instituted under the provisions of the Partition Act, No. 16 of 1951,* and under the provisions relating to partition actions contained in the Administration of Justice Law, No. 44 of 1973, repealed by the Civil Courts Procedure (Special Provisions) Law, 1977. (*” Chapter 69 of the 1956 Edition of the Legislative Enactments, which has been repealed by the Administration of Justice Law, No. 44 of 1973, as amended by Law No. 25 of 1975.)

(1) Any person, not being a party to a partition action, whose rights to the land to which the action relates have been extinguished or who is otherwise prejudiced by the interlocutory decree entered in the action, may, by separate action instituted not later than five years from the date of the final decree in the partition action, recover damages from any party to the action by whose act, whether of commission or omission, such damages may have accrued and where the whole or any part of such damages cannot be recovered from any such party, recover such damages or part thereof from any other person who has benefited by any such act of such party.

Any person who has benefited by such act may be made a defendant in such separate action and shall, if damages are awarded in that action, be bound by the award to the extent of such benefit as may be determined by the court, to be that derived by him from such act.

(2) Where such action for damages as is referred to in subsection (1) of this section is instituted and is registered as a Us pendens under the Registration of Documents Ordinance in, or in continuation of the folio in which the said interlocutory decree was registered before the decree of partition is entered under section 36 or the schedule of distribution is approved by the court under section 47, in the partition action relating to that land, then, if any damages are awarded to the plaintiff in the action for damages-

and such charge shall be enforceable against such party and any person deriving a right, title or interest therein or thereto from such party, not being a transferee for value without notice of the right, title or interest of such plaintiff.

(3) For the purposes of subsection (1) of this section a party to a partition action on whom summons had not been served or a party to such an action being a minor or a person of unsound mind, who shall not have been duly represented by a guardian ad litem. shall be deemed to be a person who was not a party to the said action.

And where an application for special leave under the provisions of subsection (4) of section 48 had been refused without an adjudication upon the merits of the claim set up by such party, the order refusing leave shall not be a bar to an action under subsection (1) of this section by the same party.

(1) If in an interlocutory decree for partition any undivided share of the land constituting the subject-matter of the partition action in which such decree is entered is declared to be subject to a mortgage or lease the rights of the mortgagee or of the purchaser of the mortgaged share under a mortgage decree, or of the lessee, shall-

(2) If in an interlocutory decree for sale any undivided share of the land constituting the subject-matter of the partition action in which such decree is entered is declared to be subject to a mortgage or lease, the rights of the mortgagee or of the purchaser of the mortgaged share under a mortgage decree, or of the lessee, shall be limited to the mortgagor’s or lessor’s share of the net proceeds of the sale of the land.

(3) If in any interlocutory decree for partition or sale any undivided share is declared subject to a usufruct, life interest, trust, right of revocation -or right of re- transfer, the right of such usufructuary, life interest holder, beneficiary or of the person entitled to a right of revocation or of re- transfer shall be limited-

(1) Every party to a partition action who has been declared to be entitled to any land by any final decree entered under this Law and every person who has purchased any land at any sale held under this Law and in whose favour a certificate of sale in respect of the land so purchased has been entered by the court, shall be entitled to obtain from the court, in the same action, on application made by motion in that behalf, an order for the delivery to him of possession of the land :

Provided that where such party is liable to pay any amount as owelty or as compensation for improvements, he shall not be entitled to obtain such order until that amount is paid.

(2)

(1) Any person-

and whose possession has been, or is interfered with or who has been dispossessed, shall, if such interference or dispossession occurs within ten years of the date of the final decree of partition or the entering of the certificate of sale, as the case may be, be entitled to make application , in the same action, by way of petition for restoration of possession, within twelve months of the date of such interference or dispossession, as the case may be.

(2)The person against whom the application for restoration of possession is made, shall be made the respondent to the application.

(3) The Court shall, after due inquiry into the matter, make order for delivery of possession or otherwise as the justice of the case may require :

Provided that, no order for delivery of possession of the land shall be made where the respondent is a person who derives his title to the land in dispute or part thereof directly from the final decree of partition or sale, or is a person who has acquired title to such land from a person who has derived title to such land under the final decree of partition or sale, or from the privies or heirs of such second mentioned person.

(1) A court exercising jurisdiction in a partition action shall have full power to give effect to every order or decree made or entered in the action (including the power to order delivery of possession of any land or portion of land to any person entitled thereto) and to punish as for contempt of court any person who-

(2) Where, under subsection (1) of this section, a person is convicted of obstructing or resisting a surveyor engaged, under the authority of the court, in doing any work on a land, the court may, in addition to the imposition of any punishment on that person under that subsection, order him to pay an amount determined by the court as the expenses of the surveyor if in consequence of the obstruction or resistance it is necessary for the surveyor to proceed again to such land for the purpose of doing such work.

Any amount ordered by the court under this subsection to be paid by any person may be recovered as though that amount were a fine imposed on that person by the court.

(1) Where a person having the ownership of a permanent plantation, apart from the soil, on the land to which a partition action relates is a party to the action, he shall be entitled only to receive compensation in respect of that plantation.

(2) The ownership of a permanent plantation, apart from the soil, on a land may, for the purposes of subsection (1) of this section, be established by proof of any agreement with the owner of the land or of any custom recognized in the locality in which the land is situated, notwithstanding the provisions of the Prevention of Frauds Ordinance.

(1) A co-owner shall not be entitled to institute a partition action in respect of a land it there exists a valid deed of partnership which binds such co-owner to cultivate that land or to raise crops or produce thereon for the purpose of selling such crops or produce or which is for the purpose of carrying on any trade, manufacture or occupation relating to, or connected with, the joint ownership of that land, and if any of the terms, conditions or covenants of that deed of partnership will be avoided, infringed or violated by a partition or sale of the land.

(2) The provisions of subsection (1) of this section shall not apply in any case in which the right to institute a partition action has been expressly reserved in the deed of partnership referred to in that subsection.

(1) In any partition action, the following costs shall,, unless the court otherwise directs, be borne by the parties to the action in the proportion of their respective rights to the land to which the action relates:-

(2) The costs referred to in subsection (I) of this section shall be known as the ” recoverable costs ” and the proportionate share thereof to be borne by each of the parties shall be known as the “pro rata” costs of that party and shall be recoverable in the same action from that party by the party who has incurred the recoverable costs.

(1) It shall be lawful for the court at any stage of a partition action to order any party to give security for costs it the court is of opinion that the party has been guilty of unreasonable delay in presenting or prosecuting his claim, or for other good and sufficient cause.

(2) Where any party to a partition action who is ordered under subsection (1) of this section to give security for costs fails to give such security within the time allowed therefor by the court, then-

(3) Where the trial of- a partition action is postponed or adjourned in consequence of such delay on the part of a party to the action as is referred to in subsection (1) of this section, the court may order that any costs payable by that party because of the postponement or adjournment shall be pre-paid.

(4) If any party ordered to pre-pay costs under subsection (3) of this section fails to make such pre-payment of costs, the court may make any of the orders referred to in subsection (2) of this section as it may deem fit, according as the party in default is a plaintiff or defendant.

(a) fix a date for the payment of such costs or charges and stay proceedings until such payment is made; and

(b) where such payment is not made on or before that date, dismiss the action.

(1) After a partition action is duly registered as a Us pendens under the Registration of Documents Ordinance no voluntary alienation, lease or hypothecation of any undivided share or interest of or in the land to which the action relates shall be made or effected until the final determination of the action by dismissal thereof, or by the entry of a decree of partition under section 36 or by the entry of a certificate of sale.

(2) Any voluntary alienation, lease or hypothecation made or effected in contravention of the provisions of subsection (1) of this section shall be void ;

Provided that any such voluntary alienation, lease or hypothecation shall, in the event of the partition action being dismissed, be deemed to be valid.

(3) Any assignment, after the institution of a partition action, of a lease or hypothecation effected prior to the registration of such partition action as a Us pendens shall not be affected by the provisions of subsections (1) and (2) of this section.

(1) Subject to the provisions of sections 36A and 45A, an appeal shall lie to the Court of Appeal against any judgment, decree or order made or entered by any court in any partition action; and all the provisions of the Civil Procedure Code shall, subject to the succeeding provisions of this section, apply accordingly to any such appeal as though a judgment, decree or order made or entered in a partition action were a judgment, decree or order made or entered in any action as defined for the purposes of that Code.

(2) Where an appeal has been preferred against any judgment, decree or order, made or entered in any court in a partition action, the court shall forward to the Court of Appeal, all papers and proceedings relevant to the judgment, decree or order appealed against, retaining a copy of the judgment, decree or order appealed against and the duplicate of the plan and report transmitted to court under section 32.

(3) Where an appeal has been preferred against any judgment, decree or order made or entered by any court in any partition action, such court may, on application made by way of petition and affidavit in that behalf, make such orders, pending the determination of the appeal, as may be necessary to prevent any waste, or damage to the land in respect of which such action was instituted. Any such Order may be given effect to in the manner provided for in section 53.

(1) The court may at any time before judgment is delivered in a partition action add as a party to the action, on such terms as to payment or prepayment of costs as the court may order-

(1A) Any person who applies to be added as a party under the provisions of subsection (1) of this section, shall file, along with his application, a memorandum substantially in the Form set out in the Second Schedule to this Law nominating in accordance with the provisions of section 81, a person to be his legal representative for the purposes of the partition action in the event of his death pending the final determination of the action.

(2) Where a person is a party to a partition action and his right, title and interest to or in the land to which the partition action relates are sold, during the pendency of the partition action, in execution of, or under any decree, order or process of any court, the purchaser of such right, title and interest at the sale shall be entitled to be substituted for that person as a party to the partition action, and such purchaser when so substituted, shall be bound by the proceedings in the partition action up to the time of substitution. The purchaser shall, along with his application to be substituted, file a memorandum, substantially in the form set out in the Second Schedule to this Law, nominating in accordance with the provisions of section 81, a person to be his legal representative for the purposes of the partition action in the event of his death pending the final determination of the action.

(3) Where a party to a partition action derives his right, share or interest to, of or in the land to which the action relates under or by virtue of a revocable deed of gift made by any other person or an instrument which reserves to any other person the right to claim a re-transfer of such right, share or interest as aforesaid within a period specified therein, such other person shall be entitled to intervene at any time before judgment in the said action and establish the right claimed by him as if he had been a co- owner at the time of the institution of the action. An intervenient under this subsection shall, with his application to intervene, file a memorandum substantially in the form set out in the Second Schedule to this Law nominating, in accordance with the provisions of section 81, a person to be his legal representative for the purposes of the partition action in the event of his death pending the final determination of the action.

(4) It shall be lawful for the court to order any person applying to be added as a party under subsection (1), to give security for costs or prepay costs if the court is of opinion that such applicant has been guilty of unreasonable delay in presenting his claim or for other good and sufficient cause.

(5) In determining the quantum of the costs to be ordered under this section, the court shall take into consideration, any delay on the part of the applicant, the stage at which the action is, any expenditure caused unreasonably to the parties and any other matter that the court may consider relevant.

(6) Where any person referred to in this section who is ordered to give security for costs or prepay costs, fails to give such security or make prepayment of costs, within the time allowed therefor by court, the court may reject his application.

(1) No partition action shall abate by reason of the non-prosecution thereof, but, if a partition action is not prosecuted with reasonable diligence after the court has endeavoured to compel the parties to bring the action to a termination, the court may dismiss the action;

Provided, however, that in a case where a plaintiff fails or neglects to prosecute a partition action, the court may, by order, permit any defendant to prosecute that action and may substitute him as a plaintiff for the purpose and may make such order as to costs as the court may deem fit.

(2) Any party in a partition action or any person claiming an interest in the land in respect of which such action has been instituted, may, if no steps have been taken to prosecute the action for a period of two years, apply, by way of motion to court, to have such action dismissed, and the court may dismiss the action if it is satisfied that dismissal is justified in all the circumstances of the case

(3) Where the court dismisses an action under this section, it shall cause a copy of the order of dismissal of the action to be registered at the Land Registry in the folio in which the lis pendens in the action was registered, or the continuation thereof.

(1) Every party to a partition action who, knowing that any person has any interest in the land to which such action relates, fraudulently or dishonestly fails or omits to disclose in the pleading filed by him the fact that such person has such interest or that such person is a necessary party to such action, shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to a fine not exceeding one thousand five hundred rupees, or to imprisonment of either description for a period not exceeding eighteen months, or to both such fine and imprisonment.

(2) No prosecution for an offence under subsection (1) of this section shall be entertained without the sanction of the Attorney-General.

(3) A person guilty of an offence under subsection (1) of this section shall also, by reason of his fraudulent or dishonest failure or omission mentioned in that subsection, be guilty of a contempt of the court in which the partition action referred to in that subsection has been instituted and may be punished for such contempt in accordance with the provisions of Chapter LXV of the Civil Procedure Code.

(1) Whoever, being a person to whom a commission for the survey, partition or sale of any land has been issued, makes any statement which he knows or has reasonable cause to believe to be false in the return made by him to such commission, or inserts in the survey plan or in the plan of partition prepared by him or in his field notes any signs, marks or particulars which he knows or has reasonable cause to believe to be false shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to a fine not exceeding one thousand five hundred rupees, or to imprisonment of either description for a period not exceeding eighteen months or to both such fine and imprisonment.

(2) A person guilty of an offence under subsection (1) of this section shall also, by reason of his false return, survey plan, plan of partition, or field notes, be guilty of a contempt of the. court which issued the commission referred to in that subsection and may be punished for such contempt in accordance with the provisions of Chapter LXV of the Civil Procedure Code.

(1) Every court having jurisdiction to try a partition action shall from time to time prepare a list of surveyors who reside or carry on business within the jurisdiction of such court, to whom commissions may be issued under this Law.

(2) Before including the name of a surveyor in the list prepared under subsection (1) , the court shall make such inquiries as may be necessary to ascertain, whether such surveyor will be regularly available to undertake commissions issued by the court.

(1) All pleadings and processes and all documents filed or produced in a partition action under this Law shall be exempt from stamp duty.

(2) All partition deeds shall be exempt from stamp duty.

(3) Nothing herein contained shall affect the proviso to paragraph (b) of the Exemptions under the heading ” F- Miscellaneous ” in Part II of Schedule A* to the Stamp Ordinance.

(1) The dismissal of a partition action in respect of any land under section 9, section 12, section 29, section 62, section 65 or section 70 shall not operate as a bar to the institution of another partition action in respect of that land-

(2) The dismissal of a partition action under section 29, section 62, section 65 or section 70 shall not affect the final and conclusive effect given by section 48 to the interlocutory decree entered in such action.

(1) Where a day is fixed or time .appointed for doing any act or taking any proceeding by a party to the action, the court may, from time to time, upon application by such party and if sufficient cause is shown, fix another day or enlarge or abridge the time appointed, upon such terms, if any, as to the court may seem proper.

(2) The day may be refixed or the time enlarged although the application for the same is not made until after the expiration of the day or time fixed or appointed.

(3) The court may, for sufficient cause, either on the application of the parties or of its own motion, advance or postpone the trial to any other day, upon such terms as to costs or otherwise as to it shall seem proper.

(4) Where a date is fixed on or before which an act has to be done by a party to the action or a return has to be made to a commission issued by the court, the case shall be called in open court on such date for the purpose of making an appropriate order in connection therewith or relating thereto.

(1) Every party to a partition action or any other person required to file a memorandum under this Law, (hereinafter referred to as “the nominator”) shall file, or cause to be filed in court, a memorandum, substantially in the form set out in the Second Schedule to this Law, nominating at least one person, and not more than three persons, in order of preference, to be his legal representative for the purposes of the action in the event of his death pending the final determination of the action.

(2)

(3) The court may at any time before the final determination of the action, on its awn motion or on the application of any party, require a party to the action or any person required to file a memorandum under the provisions of this Law, to file such memorandum on or before a date appointed for such purpose by court.

(4) A nominee may, at any time prior to the death of the nominator apply, with notice to the nominator, to court by way of motion to withdraw his consent to be such nominee and in such event the court shall make order that he ceases to be the nominee of the nominator and shall cause the name of such nominee to be struck off the memorandum filed by the nominator.

(5) A nominator may, subject to the provisions of subsection (1) of this section, at any time before the final determination of the action make application, with notice to the nominees, to tender a fresh memorandum nominating one or more nominees. On the filing of such new memorandum, the previous memorandum of such nominator shall stand revoked and the nomination contained in such fresh memorandum shall forthwith take effect

(6) On the death of a nominator, the person first nominated in the memorandum filed by the nominator in order of preference, shall be deemed to be the legal representative of such nominator for the purposes of the action from the time of his death.

(7) A nominee deemed to be the legal representative of a deceased nominator shall be entitled to take all such steps for the purposes of the action as the deceased nominator would have been entitled to take had he been alive.

(8)

(9) Notwithstanding that a party or person has failed to file a memorandum under the provisions of this” section, and that there has been no appointment of a legal representative to represent the estate of such deceased party or person, any judgment or decree entered in the action or any order made, partition or sale effected or thing done in the action shall be deemed to be valid and effective and in conformity with the provisions of this Law and shall bind the legal heirs and representatives of such deceased party or person. Such failure to file a memorandum shall also not be a ground for invalidating the proceedings in such action.

(10)

(11)

(12) No proceeding under this Law shall be postponed or adjourned nor any step in the action postponed by reason of the death of a party or person required to file a memorandum under this Law.

(13) An application under subsections (4), (5),(8)(a),(10)or (11)shall not be aground for the postponement of the trial. The court may however grant a postponement on the payment of costs by the person making the application, if it is of the opinion mat it is in the interests of justice to allow such postponement.

(14) For the purposes of this section “legal representative” means, a person who represents me estate of a deceased party or person, for the purposes of the action, by virtue of a nomination, or of an appointment by court under this section.

(1) Every action, proceeding or other matter relating to partition actions already instituted and pending under the provisions of the Administration of Justice Law, No. 44 of 1973, in any court, original or appellate, on the appointed date shall be continued and proceeded with to final judgment, completion or execution under the provisions of this Law, as if the same had been instituted after the coming into operation of this Law.

(2) Every action, proceeding or other matter relating to partition actions already instituted and pending under the provisions of the Administration of Justice Law, No. 44 of 1973, in any Magistrate’s Court on the appointed date shall stand removed to the District Court of the district within which such Magistrate’s Court is situate and such District Court shall have jurisdiction to continue and proceed with such action to final judgment, completion or execution under the provisions of this Law, as if the same had been instituted in such District Court after the coming into operation of this Law. ,

(1) The Minister may make regulations In respect of any matter which is required or authorized by this Act to be prescribed.

(2) Every regulation made by the Minister shall be published in the Gazette and shall come into operation on the date of such publication or on such later date as may be specified in the regulation

(3) Every regulation made by the Minister shall, as soon as convenient after its publication in the Gazette, be brought before Parliament for approval. Any regulation which is not so approved shall be deemed to be rescinded as from the date of such disapproval but without prejudice to any thing done thereunder.

(4) Notification of the date on which any regulation made by the Minister is so deemed to be rescinded shall be published in the Gazette”.

(1) In this Law, unless the context otherwise requires-

” appointed date ” means the 15th day of December 1977;

” boundary marks” means the marks made or set up on a land, at the time of the partition thereof, for the purpose of defining the boundaries of the divided portions into which the land is partitioned, whether such marks consist of ditches or fences along the boundaries or of posts of hard wood or other material erected at suitable points on the boundaries;

” constructive or charitable trust” has the same meaning as in the Trusts Ordinance;

” land “, when used with reference to a partition action, means the land or lands constituting the subject-matter of that action;

” partition action” means an action instituted under this Law for the partition or sale of any land or lands belonging in common to two or more owners and includes any action, proceeding or other matter continued under section 82;

” registered attorney” has the same meaning as in the Civil Procedure Code; ” surveyor” means a surveyor whose name is included in a list prepared under section 73 and for the time being in force.

(2) For the purposes of sections 39, 41 and 43,

” co-owner ” means a party to whom a share of the land has been allotted in the interlocutory decree and includes a person who has been declared by such decree to be entitled to any right to compensation for improvements.