Richard and Another v. Siebel Nona and Others
(Jayawickrerna, J.)
When one take into consideration the above facts, I findthat the learned District Judge has failed to decide on thecorpus which is to be the subject matter of this partition actionand has not investigated the title to the land. The learnedDistrict Judge has completely acted in violation of theprovisions of the Partition Law and has accepted by way of asettlement, the evidence of the 1st Defendant and he hasdelivered judgment without investigating into the title of all the

In view of the above statements of the two surveyors it isclear that the parties were not able to identify the land to bepartitioned.
In view of the above facts, the Court is of the view that theland which the learned District Judge has accepted as the landto be partitioned is a land which is larger than land sought tobe partitioned by the Plaintiff in his schedule to the plaint.
On 22/2/1994 the learned District Judge pronouncedjudgment by way of a settlement and evidence was led on theconditions of settlement agreed upon between the Plaintiff andthe 9th Defendant. Even in the interlocutory decree it is statedthat the decree was entered in accordance with the terms ofsettlement. The relevant portion of the interlocutory decree isas follows

The second surveyor in his report states that he is unableto state definitely whether the land he surveyed is the sameland which is described in the schedule to the plaint.The relevant paragraph 5 of his report marked as A21 is asfollows:-
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[20011 2 Sri L.R.
parties as required by the Partition Law. It is the duty of a judgein a partition action to investigate into the title and clearly statein the judgment, the shares of each of the parties entitled tofrom the corpus.
In Banda vs. Weerasekera1121 Bertram C.J. held that '‘thecourt regards with strong disapproval any attempt to usethe Partition Ordinance for the purpose of dealing in anaction with distinctportions ofland in which shareholdersand the interests are not the same".
It was held by Garvin S.P.J. – in Eliyaiambi vs. KanapathyVeeragathie(13) that it is not contemplated by the provisions ofthe Partition Ordinance that any more than one land will bepartitioned in one proceeding.
The practice in Partition Actions has been to disapproveof any attempt to include as subject matters in one actiondistinct portion of land in which the shareholders and inter-ests are not the same (vide Cook us. Bandulaha]m/14) Banda vs.Weerasekera1151).
In the instant case some portions of land shown in PlanNo. 41/1990 were the subject matter in an earlier PartitionAction.
The duty of a j udge in a Partition Action is to ascertain whothe actual owners of the land are, and to decide the othermatters. This duty is a personal one. It is an imperative dutyin all Partition Actions that the court should examine the titleof each party to the action. It was held in Fernando vs.Mohammadu Saibu1161 that "the Court must in all cases ofpartition carefully investigate all titles, and must refuse tomake title on admissions or insufficient proof."
It was held in Visuvalingam vs. Thampoof171 that a parti-tion decree cannot be entered by settlement even after someevidence, and that in partition suits, it is the duty of the judge
Richard and Another v. Siebel Nona and Others
(Jayawickrema, J.)
to fully investigate into the title to the land and shares. In thatcase Grenier, J. Said 'The District Judge instead of proceedingwith the trial of the case and investigating into the tide of theparties, allowed them to settle the case. I find on reference tothe proceedings had before him on that date that at a certainpoint of the examination of the plaintiff a settlement wasproposed and that later a paper of settlement was put in andan interlocutory decree entered up according to the termsembodied therein. I need hardly remark that this was highlyirregular, and in the teeth of the plain requirements of thePartition Ordinance by which the duty is cast on the judge toinvestigate into tt0tttle of the parties as carefully as he can inview of the far reaching consequences of a decree in a partitionaction."
In partition suits the court ought not to proceed onadmission, but must require evidence in support of the title ofall the parties and allot to no one a share except on good proof(vide Silva vs. Paulu(18!). In Golagoda vs. Mohideen(19) it was heldthat "the court should not enter a decree in a partitionaction unless it is perfectly satisfied that the persons inwhose favour it makes the decree are entitled to theproperty. Investigation of title by the Court is a necessarypre-requisite to every partition decree".
In the instant case the lis pendens has been registered toa land of 3 acres and 3 roods in extent. This clearly proves thefact the lis pendens has not been registered in respect of theland shown in Plan No. 41/1990 which is of 4 acres I rood and18.908 perches.
It was held in Uberis vs. JayawardanePHhat "an actionin respect of one land cannot be converted into an actionin respect of another land by an amendment ofpleadingsand that when a plaint in a Partition Action is amended soas to substitute a new corpus, for the one described in thefirst plaint. Afresh lis pendens would be necesscuy."
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[2001] 2 Sri L.R.
In Bininda Vs. Sediris Singhd21), it was held in preparinga preliminary Plan in a Partition Action it is Irregular for asurveyor, to survey and include in the corpus any land otherthan that which is referred to in the plaint and which hiscommission authorises him to survey.
In the event of any party seeking to have a larger land tobe made the subject matter of the action the Court shall specifythe party to the action to file in Court an application for theregistration of the action as a lis pendens affecting such largerland and the court shall proceed with the action as though ithas been instituted in respect of such larger land after takingnecessary steps under sections 16, 17, 18 and 19 of thePartition Act. In the instant case this procedure has not beenfollowed.
When one takes into account the facts disclosed in thiscase it is abundantly clear that the learned District Judge hasacted in violation of the imperative provisions of the PartitionLaw. Hence it will be a travesty of Justice to allow the judgmentand the interlocutory decree to stand in this case.
According to the proviso to section 48 (3), the powers of theCourt of Appeal by way of revision and restitutio in integrumshall not be affected by the provisions of this subsection.
For the above reasons, acting in revision I set asidethe judgment, interlocutory decree and the amendedinterlocutory decree of the learned District Judge. Further Idismiss the plaint of the plaintiff in this Partition Action withcosts payable by the Plaintiff to the petitioner in a sum ofRS. 5,000/=
JAYASEVGHE, J. – I agree.
Application allowed