REV INDUREWE DHAMMANANDA
v.PIYATISSA AND ANOTHER
COURT OF APPEALJAYASINGHE. J.
C. MATUGAMA 2678/PFEBRUARY 02, 2000JANUARY 15. 2001
Partition Law – S.5. S.44, S.48(4) – Exclusion – Non compliance ofprovisions of S.5 – Right of a Party having a right to notice – interventionby Revision – Finality of an Interlocutory Decree ■ Miscarriage ofjustice.
The Commissioner by his Report which was not disputed by the Plaintiffhas in no uncertain terms brought to the Notice of Court and to thePlaintiff that lots 1, 2, 3, 5, 8 and 6 do not form part of the corpus.
Inspite of the said Report the Plaintiff either by design or inadvertencefailed to act under S.5
The Court too ignored the Surveyor's Report and allowed portionsthat fell outside the corpus to be included without even notice tointerested parties as provided by S.5.
No effort was made to issue notice on the necessary parties.
On the bare statement of the Plaintiff lots 2. 3, 5 had been includeddespite the clear finding of the surveyor.
Per Udalagama, J.
“It is settled law that the revisionary powers of the Court of Appeal isunaffected even under the Partition Law, the provisions of S.48notwithstanding – the power of revision and restitutio in integrum ofthe Court of Appeal have survived legislation that has been enacted upto date.
APPLICATION in Revision from the Judgment of the District Court ofMatugama.
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Cases referred to :
Somawathie u. Madawala – 1985 – 2 SLR 15
Manam Bee Bee v. Seyad Mohamed
S. C. B. Walgampaya for Petitioner.
H. Witnachchl with Vijith Singh for Plaintiff Respondent.
Cur. adu. uull.
February 22, 2001.
UDALAGAMA, J.Section 5 of the Partition Law provides, inter alia, that aplaintiff shall include all persons who, whether in actualpossession or not, to his knowledge are entitled or claim to beentitled to any right, share, interest and improvement andsubject to the limitations stated therein even persons claiminginterest in a mortgage shall be included as a party.
Section 48(3) of the Partition Law, however, provides thatan interlocutory decree entered in a partition action shall havea final and conclusive effect as declared by section 48( 1)notwithstanding the provisions of even section 44 of the EvidenceOrdinance unless the decree was so entered by a court withoutcompetent jurisdiction.
The matter for decision by this court in the instant case iswhether an obvious non – compliance of the provisions of section5 aforesaid would shut out the rights of a party having a right tonotice when in fact no notice of the action was given and whethersuch party could intervene by way of revision to prevent amiscarriage of justice.
It is settled law that the revisionary powers of the Court ofAppeal is unaffected even under the partition Law, the provisionsof section 48 notwithstanding. The powers of revision andrestitutio in integrum of the Court of Appeal have survivedlegislation that has been enacted uptodate. As stated by Soza
Rew Indurewe Dhammananda v. Plyatissa and another(Udalagama, J.)
J. in Somawathie v. Madawala111, with Sharvananda J.,Wanasundera J., Wimalaratne J., and Ratwatte J. agreeing, animportant question regarding the finality of an interlocutorydecree and the powers of revision exercisable by the Court ofAppeal was dealt with in that case and one matter for decisionin Somawathie v. Madawela (supra) related to the possessionof a portion of land claimed by one Madawela to be outside thecorpus but which portion in fact had been included as formingpart of the corpus to be partitioned without notice to Madawela.The latter's claim to intervene was rejected by the District Judge.In appeal the Court of Appeal ordered a trial de novo. Againstthat order the appellant in the aforesaid case preferred an appealto the Supreme Court whereby the plaintiff – appellant contendedthat the partition decree was final and conclusive notwithstandingany omission or defect in procedure even if the personsconcerned were not parties. Thus one of the matters to bedecided by the Supreme Court was whether in view of theconclusive and final effect attending to partition decrees,whether the Court of Appeal can intervene by way of revision.
Soza J. in the course of his judgment in the aforesaid caseof Somawathie v. Madawela, inter alia, held as follows:-
"While section 48 of the Partition Law enacts that theinterlocutory decree entered shall be subject to the decisionof any appeal which may be preferred therefrom, be finaland conclusive for all purposes against all personswhomsoever, I am of the opinion that it does not affect theextra-ordinary jurisdiction exercised by way of revision orrestitutio in integrum"
Justice Soza in the course of his judgment also referred toa similar view expressed by Sansoni, C. J. in the case of Mariambee bee v. Seyad Mohamed121 which is directly relevant to thematter before this court, where it was held that the power ofrevision is an extra-ordinary power which is quite independentof and distinct from the appellate jurisdiction of this court. Itsobject is due administration of justice and the correction of errors
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sometimes committed by court itself in order to avoid miscarriageof justice.
In the instant case, it is manifestly clear the Surveyor towhom the Commission was issued by court by his report toplan No. 661 dated 22. 04. 96, in paragraph 12 in no uncertainterms brought to the notice of court and to the plaintiff that lots
, (2). (3), (5) and (8) do not form part of the corpus. In spiteof the said report the plaintiff either by design or inadvertencefailed to act under section 5 of the Partition Law. It is unfortunatethat even the court which is duty bound to investigate title in apartition action appeared to have not only ignored the Surveyor'sreport but even allowed portions that fell outside the corpus tobe included without even notice to interested parties as providedfor by section 5 aforesaid. The plaintiff in the original court hassignificantly not disputed the report of the Surveyor.
In all the attendant circumstances of this case. I am inclinedto the view, that inspite of the Surveyor's report detailing theareas to be excluded no effort was made to issue notice on thenecessary parties and at the trial when the contents of the reportof the Surveyor was considered the same received scantattention. Besides the report of the Surveyor without doubtbecame very relevant to the investigation of title. This. I hold isa glaring lapse which taints the entire proceedings and transcendthe bounds of procedural errors. In accordance with the evidenceof the plaintiff lot (1) depicted in the plan had been exemptedfrom the partition and on the bare statement of the plaintiff lots
(3) (5) and (8) had been included despite the clear findingof the Surveyor who said that the said lots formed part of aseparate adjoining land. In the absence of cogent evidence ofprescriptive possession of the lots (2) (3) (5) and (8) which lotsthe Surveyor categorically stated formed part of the adjoiningland and there been no steps taken under the provisions ofsection 5 of the Partition Law and, however, as setting aside allproceedings would be too sweeping and may cause unnecessaryhardship, inconvenience and delay, I would in the circumstances,to meet the ends of justice direct that the interlocutory decree
Rew Indurewe Dhammananda u. Ptyatissa and another(Udalagama, J.)
entered be amended to also exclude lots (2) (3) (5) and (8)depicted in plan No. 661 dated 22. 04. 96 made by K. D. L.Wijenayake, Licensed Surveyor, and filed of record in D. C.Matugama case No. 2878/P
After the interlicutory decree is amended, the action canproceed in accordance with the law.
Subject to this variation the appeal is dismissed. No costs.
JAYASINGHE, J. – I agree.
Interlocutory decree amended