Piyaseeli v Mendis and others
MENDIS AND OTHERSCOURT OF APPEALDISSANAYAKE, J.
A. 203/90 (F)
C.MATARA 10449/POCTOBER 4 AND 11, 2002MAY 12, 2003
Partition Law No. 21 of 1977 – Sections 25 and 26 – Investigation of title -Main function – Failure – Civil Procedure Code- – Failure to comply with sec-tion 187 – Devoid of reasons – Can a partition decree be the subject of a pri-vate agreement between parties? Evidence Ordinance – Partition Act, No. 16of 1951 – Section 25 – Partition Ordinance No. 10 of 1863 – Section 9 and 48.
Main function of the trial Judge in a partition action is to investigatetitle, it is a necessary prerequisite to every partition action.
Partition decrees cannot be the subject of a private agreementbetween parties on matters of title which the Court is bound by lawto examine. There is a greater need for the exercise of Judicial cau-tion before a decree is entered. “On an appeal in a partition actionif it appears to the Court of Appeal that the investigation has beendefective it should set aside the decree and make an order for prop-er investigation.”
APPEAL from the Judgment of the District Court of Matara.
Cases referred to:
Juliana Hamine v Don Thomas – 59 NLR 549
Sirimalie v D.J.Pinchi Ukku – 60 NLR 448 at 451
P.M.Cooray v Wijesuriya — 62 NLR 158 at 160-161
Mohamedaly Adamjee v Hadad Sadeen – 58 NLR 217 at 226
Rohan Sahabandu for defendant-appellant.Hemasiri Withanachchi for plaintiffs-respondents.
Sri Lanka Law Reports
 3 Sri L.R
November 14, 2003SOMAWANSA, J.
The plaintiffs-respondents instituted this partition action seeking apartition of the land called and known as ‘Gorakagahawatta’ alias‘Bakmeegahawatta’ in extent of 21/2 kurunis kurakkan sowing more-fully described in the schedule to the plaint! The position of the plain-tiffs-respondents was that the original owner of the land sought to bepartitioned was Sedohamy and his rights, title and interest devolvedon the 1st and 2nd plaintiffs-respondents, 1st to 6th and 8th to 11thdefendants-respondents and the 7th defendant-appellant.
The contesting 7th defendant-appellant while denying the pedi-gree of the plaintiff-respondent took up the position that the prelim-inary plan No.1845 dated 23.03.81 prepared by N.Wijeweera,Licensed Surveyor marked X depicts 3 lands and that the originalowner of Lot 01 depicted in the said plan marked X was one JasinAratchchige Laishamy and the original owner of Lots 2 and 3depicted in the said plan marked X was Jasin Aratchchige JohnAppu. On this basis the contesting 7th defendant-appellant disput-ed-the corpus to be partitioned and also the pedigree of the plain-tiffs-respondents and went on to plead that the 7th defendant-appellant is in possession and occupation of the land sought to bepartitioned for well over 10 years and that the plaintiffs-respondentsnor her predecessors in title ever had possession of the same.
The parties went to trial on 18 points of contest and at the con-clusion of the trial the learned Additional District Judge by his judg-ment dated 22.01.90 held with the plaintiffs-respondents. It is fromthe said judgment that the contesting 7th defendant-appellant haspreferred this appeal.
At the hearing of this appeal, it was contended by the counselfor the 7th defendant-appellant that the judgment of the learnedAdditional District Judge is devoid of reasons and an analysis of theevidence led, in that the learned District Judge has considered onlythe documents marked by the plaintiffs-respondents and no refer-ence made either to the documents marked by the 7th defendant-appellant or to the documents marked and tendered by the otherdefendants-respondents. It appears to me that there is force in thisargument.
Piyaseeli v Mendis and others
On an examination of the judgment it could be seen that thelearned Additional District Judge does refer to one documentmarked by the 7th defendant-appellant and that being 7V7. Exceptfor this document the learned Additional District Judge does notrefer to any other documents marked either by the 7th defendant-appellant or the other defendants-respondents, when in fact 9V1 to9V7/10V1 to 10V3,14V1 and 7V1 to 7V8 were marked at the trial.
In fact even as regards the documents marked by the plaintiff-respondents, the learned Additional District Judge has had only acursory look at them. It is to be seen that in the two pagejudgmentof the learned Additional District Judge there is no proper investi-gation as to the identity of the corpus or as to the title of parties,when there was a contest among them as to the corpus as well asthe pedigree. Learned Additional District Judge himself says thatnot only the 7th defendant-appellant but also the 1st to 6th, 9th,
, 15th and 17th defendants-respondents too have a contest with theplaintiff-appellant in respect of the pedigree. However it is to benoted that no reference is made to that contest in the judgment buthaving come to a finding as to who the original owner was thelearned Additional District Judge had proceeded to accept the pedi-gree of the plaintiff-respondent. It is also interesting to note that asfor possession of the land to be partitioned, the learned AdditionalDistrict Judge has come to a finding that the fact that the plaintiff-respondent claimed the coconut husks that were on the land beforethe Surveyor was sufficient to establish that the plaintiff-respondenthad rights to the corpus and was in possession of the same!
, It is to be seen that the learned Additional District Judge has notdealt with or considered the right, title and interest of the parties andhas failed to evaluate the evidence adduced on behalf of the 7thdefendant-appellant as well as the other defendants-respondentsand thereby seriously misdirected himself. It is well established thatthe main function of the trial Judge in a partition action is to investi-gate title. Our Courts have repeatedly pointed out that investigationof title by the Court of first instance is a necessary pre-requisite toevery partition action and that inadequacy of the investigation of titleby the trial Court as in the instant case is a ground on which Court ofAppeal must necessarily set aside the decree and remit the case tothe trial Court for a proper investigation of title.
Sri Lanka Law Reports
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On an examination of the evidence led and also the judgment ofthe learned District Judge, I would hold that the learned DistrictJudge has failed to comply with the provisions of section 187 of theCivil Procedure Code as well as section 25 of the Partition Law,
No.21 of 1977 and has failed to investigate title.
Section 187 of the Civil Procedure Code reads as follows:
‘The judgment shall contain a concise statement of the case, 80the points for determination, the decision thereon, and the rea-sons for such decision; and the opinions of the assessors (ifany) shall be prefixed to judgment and signed by such asses-sors respectively”.
Section 25 of the Partition Law reads as follows:
“the court shall examine the title of each party and shall
hear and receive evidence in support thereof and shall try anddetermine all questions of law and fact arising in that action inregard to the right, share, or interest of each party to, of, or inland to which the action relates, and shall consider and decide gowhich of the orders mentioned in section 26 should be made.”
In the case of Juliana Hamine v Don Thomas <1) at 549 per L.W.de Silva, A.J.
“We are of the opinion that a partition decree cannot be thesubject of a private arrangement between parties on matters oftitle which the Court is bound by law to examine. While it isindeed essential for parties to a partition action to state to theCourt the points of contest inter se and to obtain a determina-tion on them, the obligations of the Court are not dischargedunless the provisions of section 25 of the Act are complied with 100quite independently of what parties may or may not do. Theinterlocutory decree which the court has to enter in accordancewith its findings in terms of section 26 of the Act is final in char-acter since no interventions are possible or permitted aftersuch a decree. There is therefore the greater need for theexercise of judicial caution before a decree is entered.”
In the case of Sirimalie v D.J.Pinchi UkktJ2) at 451 per Sansoni, J.
“It should be remembered that section 25 of the Partition Act,
Piyaseeli v Mendis and others
No. 16 of 1951, requires the Court to “examine the title of eachparty and hear and receive evidence in support thereof, and notry and determine all questions of law and fact arising in regardto the right, share and interest of each party”. In this case thetrial judge has failed to perform these duties and it is not toolate for us to require him to perform them at another trial.”
In the case of PM.Cooray v Wijesuriya (3> at 160/161 perSinnatamby, J.
“ It is a common occurrence for a deed to purport to conveyeither much more or much less than what a person is entitledto. Before a Court can accept as correct a share which is stat-ed in a deed to belong to the vendor there must be clear and 120unequivocal proof of how the vendor became entitled to thatshare. How then is the proof to be established in a Court ofLaw? It only too frequently happens, especially in uncontestedcases, that the Court is far from strict in ensuring that the pro-visions of the Evidence Ordinance are observed; and whenthis happens where there is a contest in regard to the pedi-gree, as in the present case, the inference is that the Court hasfailed totally to discharge the functions imposed upon it by sec-tion 25 of the Act. It cannot be impressed too strongly that theobligation to examine carefully the title of the parties becomes 130all the more imperative in view of the far reaching effects ofsection 48 of the new Act which seems to have been speciallyenacted to overcome the effect of the decisions of our Courtswhich tended to alleviate and mitigate the rigours of the con-clusive effect of section 9 of the repealed Partition OrdinanceNo. 10-of 1863.”
In the case of Mohamedaly Adamjee v Hadad Sadeeri4) at 226per Lord Cohen.
“On an appeal in a partition action if it appears to the court ofappeal that the investigation has been defective it should set 140aside the decree and make an order for proper investigation.”
In the instant case as stated above, the learned District Judgehas failed to investigate the title of the parties to the action. In thecircumstances, the judgment, of the learned Additional DistrictJudge cannot stand. I am mindful of the fact that the action has
Sri Lanka Law Reports
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been filed in 1980. However to embark on an investigation of titleof the parties at this stage would be to take upon myself the func-tion of the trial judge. Hence in the circumstances, I have no otheroption but to give directions for a re-trial.
In view of the above reasons, I would allow the appeal of the 7thdefendant-appellant and set aside the judgment of the learnedAdditional District Judge and direct a trial de novo. The learnedDistrict Judge is directed to hear and conclude this action as expe-ditiously as possible. The plaintiffs-respondents will payRs 5000/- as costs of this appeal.
The Registrar is directed to send the case record to the appro-priate District Court forthwith.
DISSANAYAKE, J. – I agree.
Trial de novo ordered.