Sri Lanka Law Reports
PREMARATNE AND ANOTHERvAMARADASA AND OTHERSCOURT OF APPEALAMARATUNGA, J.
A.L.A. 193/2000 (LG)
C.PUGODA 214/PJUNE 6, ANDJUNE 27, 2003
Partition Law, No. 21 of 1977 – Scheme of partition – Right of way lying out-side corpus – Can it be utilised?
(i) In effecting a partition proper rights of way should be provided withinthe corpus to the distinct allotments as means of access to a publicright of way.
APPLICATION for leave to appeal from the order of the District Court ofPugoda with leave being granted.
Cases referred to :
Amarasinghe v Wanigasuriya – (1994) 2 Sri LR 203
Kanthia v Sinnethamby- (1913) 2 Balasingham Notes of Cases 19.
Thambiah v Sinnathamby – 61 NLR 421
S.F.A. Cooray with Muditha Premachandra for petitioner-appellants.
Nizam Kariapperfor plairitiff-respondentsOther respondents absent and unrepresented
Premaratne and another v
Amaradasa and others (Amaratunaa. J.)
December 11, 2003GAMINI AMARATUNGA, J.
This appeal arises from an application for leave to appeal made 01against the order of the learned District Judge of Pugoda confirmingthe final scheme of partition submitted by the Court Commissioner.
This Court granted leave to appeal to the petitioners.
Court Commissioner, Surveyor Dissanayake has submitted finalplan No 1372A dated 2/3/1999. According to this plan, on the west-ern side of the corpus there is a land said to belong to K.A.Amaradasa, the plaintiff-respondent. This land is not a part of thecorpus to be partitioned. From the western side of that private landtwo public roads extend in two directions. One road, from 10Mandawala to Pugoda extends from the west towards the north.
The other road from Mandawala to Banagala extends from the westto the south. One portion of the corpus to be partitioned is situatedbordering the Mandawala-Banagala road. The western and thenorth western boundary of the corpus dose not extend up to theMandawala-Pugoda road at any point. As stated above, the privateland of the plaintiff-respondent stands between the corpus and theMandawala-Pugoda road. In the commissioner's plan at the north-western edge of the corpus a 20 feet wide road extends from thatedge of the corpus up to Pugoda-Mandawala road but this road is 20not a part of the corpus. It is a road situated outside the corpus. Thecommon roadway, provided by the Court Commissioner in his planbegins from the north-western edge of the corpus and runs south-wards through the corpus providing access to all lots allocated toparties. This road, marked Lot 7 does not, at its northern end,extend to the Mandawala-Pugoda road. The parties have to gainaccess to that road by going through the 20 feet wide road situat-ed outside the corpus. It is stated that this roadway belongs to theplaintiff-respondent Amaradasa but it has not been specificallyproved at the partition action. There was also no proof that the co- 30owners of the corpus have acquired a servitude to use this land.Thus for all intents and purposes of the partition action this roadremains a private road situated outside the subject matter of thepartition action. The Commissioner has not provided an access tothe corpus from the Mandawala-Banagala public road although aportion of the corpus is directly bordering that public road.
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 1 Sri L.R
The 2nd and 4th defendant-appellants, (hereinafter called theappellants) objected to the commissioner's plan. They had twoobjections. The first objection was that the commissioner has notprovided an access to lot No. 4 allocated to the 2nd defendant- 40appellant from the Mandawala-Banagala road and according to thecommissioner's plan access to lot No. 4 from the Mandawala-Pugoda public road is through the above mentioned private roadsituated outside the corpus. The other objection was to the onemetre wide pathway allotted between lots 2 and 4 for the purposeof providing access to the paddy fields situated on the eastern sideof the corpus. Those paddy lands do not form a part of the corpus.Having obtained a commission from an alternative plan, the appel-lants submitted alternative plan No. 6510 dated 10/6/1999 pre-pared by surveyor Hubert Perera.so
The Court held an inquiry to decide on the final partition schemeto be adopted. At the time of the inquiry, the commissioner who pre-pared final plan No. 1372A was dead. The 2nd defendant-appellantand surveyor Hubert Perera gave evidence. In the alternative plan,the roadway providing access to all lots of the corpus begins fromthe Mandawala-Banagala road. The common roadway extendsfrom that road along the northern boundary of lot No. 5 allotted tothe plaintiff (lot 6 in the commissioner's plan) towards the interior ofthe corpus and extends upto lot No. 1 situated at the northern endof the corpus. On northern side of lot No 5. allotted to the plaintiff, 60the private land belonging to the plaintiff stands. The roadway pro-vided in the alternative plan runs between lot No 5. allotted to theplaintiff and his private land. One of the matters taken into consid-eration by the learned District Judge was that if the alternative planis accepted, the roadway provided by it separates lot No 5. allottedto the plaintiff from the plaintiff's private land thus preventing theplaintiff from having the lot allotted to him by the partition decreeand his private land as one entity.
Referring to the 20 feet wide road situated at the northern edgeof the corpus, which has been used by the Court Commissioner to 7Cconnect the common roadway demarcated within the corpus withthe Mandawala-Pugoda road, the learned Judge has held that if theappellants say that it is a private road, they must prove it. Withrespect this was an erroneous conclusion. That road is situated
Premaratne and another v
Amaradasa and others (Amaratunga, J.)
outside the corpus and not a part of it. It is not a public road. If it isto be used to connect the common roadway demarcated within thecorpus with the Mandawala-Pugoda public road there must be evi-dence that the co-owners of the land to be partitioned haveacquired a right of servitude to use that road way. There was nosuch evidence. Accordingly it is a private road not belonging to thecorpus.
The question of law to be considered in this case, namelywhether a surveyor in effecting partition could utilize a right of waylying outside the corpus to facilitate the division of the corpus, hasbeen considered by this Court in Amarasinghe v Wanigasuriya (1)S. N. Silva J. (as he then was) having considered previous author-ities on the subject explained the legal position as follows.
“The question whether a surveyor in effecting partition could uti-lize a right of way lying outside the corpus, to facilitate a division,was the subject matter in the case of Kanthia v SinnathambyW.In that case the commissioner refused to take into account aright of way lying outside and to the north of the land which wasthe subject of the partition action. It appears that the land to thenorth belong to the plaintiff in the action. The decision of thecommissioner was challenged in the Supreme Court andLascelles, CJ. held that there was no error in the refusal of thecommissioner to effect a partition using the right of way which isoutside the corpus. It was observed that the fact the right of wayserved the plaintiff in respect of another land was irrelevant tothe decision to be made. The rationale of the decision is quiteclear, that in the process of partitioning proper rights of wayshould be provided from within the corpus as access to a pub-lic right of way. If not, as noted above, the partition decreewould be the beginning of a new wave of litigation for servitudesof way. This judgment was followed in the case of Thambiah vSinnathamb/3l Weerasuriya, J. firmy ruled out the possibility ofa declaration being made in a partition action as to a right of wayclaimed in respect of a land outside the subject matter of theaction. Therefore it could be taken as settled law that in effect-ing a partition proper rights of way should be provided within thecorpus to the distinct allotments, as means of access to a pub-lic right of way (pp 206-207 emphasis added).
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 1 Sri L.R
The legal principle explained above very clearly indicates thatthe use of a 20 feet wide road situated outside the corpus to pro-vide to the parties a means of access to the public road was wrongand contrary to law and therefore plan No. 1372A should not havebeen accepted for that reason. The alternative plan No. 6510 pro-vides the common roadway directly from the Mandawala-Banagalapublic road. The foot path one metre wide extending from the Westto the East in order to provide access to the paddy fields situated 120outside the corpus on its Eastern side was also unnecessary. It hasbeen stated that all parties could gain access to their paddy fieldsthrough the lots allocated to them. In any way the provision of a footpath through the corpus to paddy fields situated outside the corpuswas unnecessary and unwarranted. The learned Judge's orderapproving the scheme of partition proposed by Commissioner'splan No. 1372A was wrong and contrary to law and therefore thatorder is hereby set aside. The alternative plan No. 6510 which pro-vides access to all lots from Mandawala-Banagala public road isaccording to law and the learned Judge is hereby directed to accept 130that plan. In a situation like this the normal procedure is for theCourt to direct the commissioner to modify his scheme of partitionaccording to the alternative plan accepted by the Court. In thisinstance the commissioner who prepared plan No. 1372A is dead.
If the surveyor who prepared plan No. 6510 is in the panel of sur-veyors the Court may accept that plan or get another commission-er to prepare the final scheme of partition in accordance with thealternative plan. Whatever may be the course adopted by Court,the Court has to ensure that the common access to the corpusmust have a direct link with the Banagala-Mandawala public road uoand that there is no foot path running across the corpus from theWest to the East providing a means of access to the paddy fieldssituated, outside the corpus. The appeal is allowed and the orderaccepting plan No.1372Ais hereby formally set aside and the Courtis directed to give effect to the directions set out above and enterfinal decree accordingly. The 2nd and 4th defendant-appellants areentitled to the cost incurred by them to get the alternative planNo. 6510 prepared.
PREMARATNE AND ANOTHER v. AMARADASA AND OTHERS