CrDALAGAMA, O'. — Samara toon v.r Punch i Panda
1975 Present:Samerawickrame, J-, Udalagama, JM and
Weeraratne, J.S. M. S. B. SAMARAKOON, Appellant and S. M. PUNCHI-BANDA and others, Respondents
S. C. 197/70 (Inty)—D. C. Kandy 4236/P
Partiti'rn Act—Sections 52, 53 and 79—Applicability of Section 337 ofthe Civil Procedure Code.
The provisions of Section 337 of the Civil Procedure Code do notapply where a party to a partition action applies to Court for anorder to put him in possession of the lots allotted to him in thefinal decree. The correct procedure that should be adopted is setout in Section 52 of the Partition Act.
_^PPEAL from an order of the District Court, Kandy.
Nimal Senanayake with Miss S. M. Senaratne and R. Perera forthe Plaintiff-Appellant.
H. W. Jayewardenes with Miss I. V. Marasinghe for the*Defendant-Respondents.
Cur. adv. vult.
June 6, 1975: Udalagama, J.—
The plaintiff-appellant brought this action to partition thedivided western portion out of Heenatiponayage Kumbura of tv/opelas paddy sowing extent and Mederiyangodahena of li acresin extent, and on 11.9.1955 final decree was entered allotting tothe plaintiff lot No. 1 in final plan No. 4105A of 4.1.1955 and lotNo. 1 in final plan No. 4106A of 4.1.1955.
L UALAGAMA, J. — Samara koan v. Bunchi Banda
On 3.7.57 the plaintiff-appellant applied for an order to put himin possession of the said lots allotted to him in the final decree.This application was allowed on 23. 1. 1961. The plaintiff-appel-lant however did not pursue with this application and obtainpossession of the said respective lots. According to affidavit filedof record in this case, the defendants who are his brothers, hadpersuaded him not to humiliate them, by taking possession ofthe lot through the fiscal with all the attendant publicity such astep would involve. Further they promised to sell their sharesof the said two lands to him (Plaintiff-Appellant). However, thedefendants in breach of this undertaking, were found by theplaintiff-appellant taking steps in 1968, to sell their rights tooutsiders. So on 5.3.68, the plaintiff-appellant applied for writ ofpossession.
The learned District Judge had wanted notice of theapplication, given to the other parties. On 22.2.70 the 1stdefendant-respondent filed objections against the issue of writalleging inter-alia : —
That there had been earlier applications on 24.6.57 and
29.2.68 and the plaintiff-appellant had failed to showdue diligence.
That 10 years had elapsed, since decree was entered and
'therefore the present application could not bemaintained.
The learned District Judge upheld the objection of the 1stdefendant-respondent and refused to issue an order to place theplaintiff-appellant in possession of the respective lots.
The objections raised by the 1st defendant-respondent rest onthe short question, whether Section 337 of the Civil ProcedureCode applies innn application for an order, under a final decree,directing the fiscal to place the applicant in possession of thelots allotted to him in the final decree and to eject any person inunlawful possession thereof.
Under Section 52 of the Partition Act, every party to a parti-tion action who has been declared entitled to any land by anyfinal decree entered under the Act shall be entitled to obtain fromthe Court, in the same action, on application made by motion inthat behalf, an order for the delivery to him of possession of theland.
UDAXiAGAMA, J. — Samarakoon v. Puncki Banda
And under Section 53 a Court exercising its jurisdiction in apartition action has full power to give effect to every ordermade in the action including the power to order delivery ofpossession of any land or portion of land to any person entitledthereto and to punish as for Contempt of Court any person yhodisobeys any such order.
These sections are in my view, compendious enough, to giveeffectual possession to a party, who has been allotted shares in afinal partition decree. There is, therefore no necessity to resort tothe provisions, dealing with execution proceedings, in the CivilProcedure Code.
The case of Hadjiar v. Mohamadu—4 CWR—371 was decidedunder the old Partition Ordinance which did not contain provi-sions similar to Sections 52 and 53 of the Partition Act — Section79 of the Partition Act provides for resort to the provisions ofthe Civil Procedure Code, if there is a casus omissus in the Act.As there is provision for the taking of possession of a lot declaredin a final partition decree, there is no necessity to- resort to theProvisions of the Civil Procedure Code under Section 79 of thePartition Act.
Learned counsel for the plaintiff-appellant also relied on thedecision—Charles Singho v. Appuhamy—58 CLW—83. In theview, I have taken that Section 337 of the Civil Procedure Codewould not apply, in the present case, I do not think, it would benecessary to consider the correctness of the decision in that case
The correct procedure that should be adopted in giving posses-sion of a divided lot, to a party who had been declared entitledto it under a final partition decree, is set out in Section 5? of thePartition Act.
A party requiring possession must apply by way of a motionin the same action for an order for tha delivery of possession ofthe lot. The Court thereafter on being satisfied that the personapplying is entitled to the order will issue an order to the Fiscalto put the party in possession of the lot. The Fiscal on receivingthe order, will repair to the land and deliver possession of thelot to the party.
If the Fiscal is resisted, he will report the resistence to Courtand the procedure set out in Section 53 of the Partition Act willapply.
[JDAL.AGAMA, 0. — Samarakoon v. Punchi Banda
In the proceedings under Section 53, it will be open to the partyresisting, to satisfy the Court, that his resistence did not consti-tute a Contempt of the Court. This he could do, for example byshowing that he had prescribed to the said lot after the finaldecree had been entered, and the party applying for an order ofpossession under Section 52, had no right to be given possessionof the land.
In the present case, the plaintiff-appellant applied to havehimself placed in possession of the lots to which he was declaredentitled to, in the final partition decree on 3.7.57. On 23.1.61 thelearned District Judge allowed the application “ if in order ”.
I agree with the learned counsel for the plaintiff-appellant thatthis was a most unsatisfactory order and amounted to no order.Be that as it may, the plaintiff-appellant did not proceed to takedelivery of possession of the lots, for the reasons stated in theaffidavit of 30.10.68 and referred to by me earlier at the beginningof this judgment.
On 5.3.68 the plaintiff-appellant made a second application foran order for delivery of possession of the lots to which he wasdeclared entitled to in the final partition decree. This applicationwas refused by the learned District Judge upholding thatSection 337 of the Civil Procedure Code applied.
In view of the conclusion I have arrived at, that Section 337 ofthe Civil Procedure Code does not apply to an application underSection 52 of the Partition Act, the learned District Judge’sorder cannot be upheld.
I would set aside the order of the learned District Judgeappealed from and allow the application of the plaintiff-appellantfor an order of delivery of possession of Lot 1 in final planNo. 4105A of 4.1.1955 and lot 1 in final partition plan No. 4106Aof 4.1.1955. It will be open to the 1st defendant to take up anydefence he chooses should proceedings be initiated under Section53 of the Partition Act. The plaintiff-appellant will be entitled tothe costs of the inquiry held on 25.10.70 and the costs of thisappeal.
Samerawickrami;, J.—I agree.
Weeraratne, J.—I agree.
S. M. S. B. SAMARAKOON, Appellant and S. M. PUNCHI BANDA and others, Responden