PERERA AND OTHERS v. ADLINE AND OTHERS

008-SLLR-SLLR-2000-V-3-PERERA-AND-OTHERS-v.-ADLINE-AND-OTHERS.pdf


PERERA AND OTHERS
v.ADLINE AND OTHERS
COURT OF APPEALJAYASINGHE. J.
JAYAWICKREMA. J.
CA 491/96(REV)
DC MT. LAVANIA 39/93/P15th OCTOBER 199916™ NOVEMBER 199901st MARCH 200024™ APRIL 2000
Partition Law 21 of 1977 – S.48. S.48( 1), S.49 Amended, by Act No. 32 of1987 – S.16(3), 20(1). 29(3), 20(l)(b). Refusal to add Party – Case filedclaiming compensation under S.49 – Is he estopped from challengingInterlocutory Decree.
Held :
According to S.48(5) and S.48(l) it is clear that the only remedyavailable to a person who was not a party to a partition action, is to filea separate action to recover damages from any party to the action, if hesays that his land has been partitioned.
The above provisions state that "the amount of damages shall be acharge on any share of the land or any money allotted in such action”makes it clear that a party will not be prejudiced by the mere fact of notbeing added as a party – S.49(l) prevents such prejudice.
Per Jayawickrema, J.
“Although in an appropriate case this Court has jurisdiction to actin Revision and restitutio-in-integrum, but where a party hasdeliberately not shown due diligence even after he was notified bythe Surveyor to appear in Court and fails to apply to be added asa party, this Court will not exercise its jurisdiction in his favour.”
(2) It is clear that the Petitioners have accepted the finality of theJudgment and the Interlocutory Decree in this action.
APPLICATION in Revision and/or Restitutio-in-integrum from theOrder of the District Court of Mt. Lavania.
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W. Da.yara.tne with Ms. R. Jayawardane for Petitioners.
M.A.Q.M. Ghazzali with E.O. Palihapitiya for Plaintiff – Respondents.C.A. Hetlihewa for 1-6 Respondents.
Cur. adu. vult.
May 25, 2000.
JAYAWICKREMA, J.This is an application to revise the order of the learnedDistrict Judge dated 24. 07. 1996 wherein he has refused anapplication to add the Petitioners as parties to the partitionaction.
It is admitted that the Petitioners were not parties to thepartition action.
The learned Counsel for the Plaintiff – Respondent raiseda preliminary objection, in that as the Petitioners have filed twocases, viz. 1313/Mand 1314/M in the District Court of MountLavinia, under Section 49 of the Partition Act claimingmonitory compensation for the Petitioner and her childrenon the basis that their interest have been extinguished orotherwise prejudiced by the said interlocutory decreetantamount to holding out or causing or permitting thePlaintiff – Respondent to believe that the Petitioner hasaccepted the finality of the interlocutory decree and to actupon that belief. He further contended that the Petitioner isnow estopped from denying that he had accepted the finalityof the interlocutory decree and proceeded to take steps torecover from the Plaintiff – Respondent any advantage ofa compensation that may arise from the finality of theinterlocutory decree. The learned Counsel further submittedthat once a person exercises the right given under Section 49of the Partition Act. he cannot thereafter reprobate, and seekto set aside the decree upon which he has exercised such aright.
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The learned Counsel for the Petitioners submitted thatthough the Section 49 states that parties are entitled to claimdamages it does not give any prescriptive period within whichthe action for damages could be filed. Therefore the parties areguided by the Prescription Ordinance, where in Section 9 anaction for damages should be filed within a period of two yearsand therefore they instituted the above two actions in theDistrict Court through abundance of caution that they wouldloose their said rights for damages if they loose this presentapplication before this Court as to make an application forRevision and Restitutio-in-integrum is not conferred to aperson or even to a party in a partition action under thePartition Act. The learned Counsel contended that the merefact that the Petitioners instituted the above two actions doesnot in any manner amounts to an admission by them that alltheir rights have been extinguished by the interlocutory decreeentered in this case.
According to Section 48(5) of the Partition Act theinterlocutory decree or the final decree of partition entered ina partition action shall not have the final and conclusive effectgiven to it by Section 48(1) as against a person who, “nothaving been a party” to the partition action, claims any suchright, title or interest to or any land or any portion of the landto which the decree relates as is not directly or remotely derivedfrom the decree if, but only if, he proves that the decree hasbeen entered by a Court without competent jurisdiction.According to the Provisions of the Partition Act, a partitiondecree could not be challenged even on the grounds of fraudor collusion.
When one considers the above provisions it is clear thatthe only remedy a person who was not a party to a partitionaction is by way of a separate action to recover damages fromany party to the action under a Section 49(1) of the PartitionAct.
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According to the provisions in Section 49(2) of thePartition Act, where an action for damages is instituted and isregistered as a lis pendens and if any damages were awarded,the amount of such damages shall be a charge on any shareof the land or any money allotted in such partition action to theDefendant or each of the Defendants in the action for damagesand such charge shall rank next in priority to the chargereferred to in Section 34(2) and the charge referred to in section63, and such charge shall be enforceable against such partyand any person deriving a right, title or interest therein orthereto from such party, not being a transferee for valuewithout notice of the right title or interest of such Plaintiff.
When one considers the above provisions of law it isabundantly clear that the only remedy that a person who is nota party to a partition action is an action for damages underSection 49(1) of the Partition Act. The above provisions whichstates that “the amount of damages shall be a charge on anyshare of the land or any money allotted in such partitionaction" makes it clear that a party will not be prejudiced by themere fact of not being added as a party to a partition action.The purpose of Section 49(1) is to prevent such prejudice.
As submitted by the learned Counsel for the Petitioner,although in an appropriate case this Court has jurisdiction toact in revision and restitutio-in-integrum, where a party hasdeliberately not shown due diligence even after he has beennotified by the Surveyor to appear in Court and fails to applythat he be added as a party, this Court will not exercise itsjurisdiction in his favour-.
The learned Counsel for the Petitioners in his writtensubmissions contended that the Surveyor failed to give noticeas required by Section 16(3) of the Partition AmendmentAct No. 32/1987 and therefore the learned Trial Judge on19. 10. 1994 has directed the Surveyor to submit proof of
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the said service of notice on 06. 12. 94. He further submittedthat the purported notice marked as P9 is not a notice incompliance of Section 16(3) of the Partition Act. LearnedCounsel further submitted that the case came up for trial evenwithout the Gramasevake’s report been produced in Court inviolation of the provisions of Section 20 of the Partition Act.
It is to be noted that on the day the Surveyor surveyed thisland, the l8t Petitioner Maha Wedage Vijitha Sudarika Perera,the mother of the 2nd, 3rd and 4th Petitioners, presented herselfbefore the Surveyor and gave her address to the Surveyor asa new claimant. The Surveyor states in his report that Lot B(2)which is part of the Corpus has become a part of the adjacentland of which the new claimant (1st Petitioner) is the owner.
On a perusal of the Journal Entries No. 11 and 16 dated19. 10. 1994 and 02. 01. 1995 respectively, we find thatthe Surveyor has personally given notice to the 1st PetitionerM.V. Kamal Vijitha Sundari Perera under Section 16(3) ofthe Partition Act. According to Journal Entiy No. 18 dated10. 02. 1995, Journal Entries No. 26 and No. 27 dated 05. 06.1995, and 13. 06. 1995 notices have been served on theGramasevaka, of 532 B, Godigamuwa South, and he has filedhis report.
The 1st Petitioner made an application to the District Courtafter the judgment in the case was delivered that she may beadded as a party to the Partition Action. The 1st Petitionergiving evidence in the District Court regarding this applicationadmitted that she made her claim before the Surveyor and thatshe received notice of this action and to appear in Court. Herevidence as is follows: “SsSte’s^d©jozsd s®@ §£)© ©^tessaO ®QaSza® SsSteGa ©@ ^Soaf Gan. SOag ©O ©aoSSasfScso. aigte ©O cesoScaO Gate S>j8gao."
Although the learned Counsel for the Petitioner submittedthat the Petitioners did not receive notice in compliance of
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Section 16(3) of the Partition Act. the 1st Petitioner herselfadmitted that she received notice of the action.
According to Section 20(3) of the Partition Act any personreceiving notice under sub Section (1) of this Section shall notbe added as a party to the action, unless he applies by a motionin writing to be added on or before the date specified in thenotice.
In the instant case, the Petitioners' names were disclosedin the 1st to 8th Defendants’ statement of claim and the Is'Petitioner was noticed under Section 16(3) of the Partition Act.
According to Section 20(1) of the Partition Act. the Courtshall order notice of Partition Action be sent by registered post:
to every claimant (not being a party to the action) whoas mentioned in the report of Surveyor under subsection (1) of the Section 18, and
to every person disclosed under paragraph (c) of subSection (1) of Section 19 by a defendant in the action.
According to Section 20(l)(b) a Defendant who disclosesany person referred to in paragraph (b) of sub Section (1) of thisSection, shall, unless the Court otherwise orders, file in Courtthe notice to be sent under that sub section to that person.
In the instant case, the Defendants who disclosed thenames of the Petitioners did not raise any issue on that basisand went along with the Plaintiff and participated in the trialand judgment was delivered accordingly.
When one take into consideration the above facts and lawit is abundantly clear that the Petitioners have accepted thefinality of the judgment and the interlocutory decree in thisaction.
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Hence the preliminary objection of the learned Counsel forthe Plaintiff – Respondent, that the Petitioners are now estoppedfrom denying the validity of the interlocutory decree is upheld.
This application for revision is dismissed with taxed costs.
JAYASINGHE, J. – I agree.
Preliminary objection upheld.
Petitioners estopped from denying the validity of theInterlocutory Decree.