033-SLLR-SLLR-2002-3-SAPIN-SINGHO-v.-LUWIS-SINGHO-AND-OTHERS.pdf
CA
Sapin Singho v. Luwis Singho and Others
271
SAPIN SINGHO
v.LUWIS SINGHO AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 165/89 (F)
DC GAMPAHA NO. 19414/PFEBRUARY 18, 2002
Partition – Partition Law, No. 21 of 1997, sections 48, 48 (4) and 48 (4) (a) -Right of party to prove his title to a share left unallotted in the final decree -Right recognised.
Held:
A practice has developed whereby even an intervenient is permitted toprove his title to an unallotted share after the interlocutory decree is entered.
The right of a party to prove his title to a share left unallotted in thefinal decree is recognised.
APPEAL from the judgment of the District Court of Gampaha.
Cases referred to :
Tambavitage Don Tepelis v. Thambavitage Don Albert – CA No. 352/92- DC Horana No. 2333IP.
Dantanarayana v. Nonahamy – 79 NLR Vol. 2 – 241.
CA No. 868/92 – CAM 14. 10. 1993 – DC Mt Lavinia No. 13732/P.
P. P. de Silva for 2nd and 4th defendant-appellants.
Plaintiff-respondent absent and unrepresented.
272
Sri Lanka Law Reports
[2002] 3 Sri L.R.
February 18, 2002
N. E. DISSANAYAKE, J.
This is an appeal arising out of the order dated 31. 05. 1989 made 01by the learned District Judge of Gampaha, refusing an application ofthe 2nd and 4th defendant-appellants made by way of petition andaffidavit that they be allotted shares which were left unallotted in theinterlocutory decree.
Learned Counsel appearing for the plaintiff-respondent raisedobjection to the said application of the 2nd and 4th defendant-appellantson the ground that the 2nd and 4th defendant-appellants have notmade the application under section 48 of the Partition Law. Thelearned District Judge had upheld the said objection by his order 10dated 31. 05. 1989.
Learned Counsel appering for the 2nd and 4th defendant-appellantscontended before us that section 48 of the Partition Law has noapplication to an application of this nature and contended that thelearned District Judge had erred in upholding the contention of learnedCounsel for the plaintiff-respondent that section 48 of the Partition Lawapplied.
Learned Counsel appearing for the 2nd and 4th defendant-appellants cited the case of Tambavitage Don Tepalis v.Thambavitage Don Albert'' the judgment of Edussuriya, J. 20
Edussuriya, J. at page 2 of the judgment stated that:
"Section 48 (4) (a) is not applicable to an application of thisnature and although there is no provision in the Partition Law underwhich an application of this nature can be made, a practice hasdeveloped in our Courts whereby even an intervenient is permitted
CA
Sapin Singho v. Luwis Singho and Others(Dissanayake, J.)
273
to prove his title to an unallotted share after the Interlocutory decree
was entered.0
Edussuriya, J. in his judgment further referred to the decision inthe case of Dantanarayana v. Nonahamy. Edussuriya, J. also in hisjudgment, referred to the decision in case No. CA No. 868/92(3) wherethe Court of Appeal recognised the right of a party to prove histitle to a share left unallotted in the final decree.
Therefore, the learned District Judge has erred in rejecting theapplication of the 2nd and 4th defendant-appellants to allot theunallotted share in the interlocutory decree.
We set aside the order dated 31. 05. 1989 of the learned DistrictJudge and direct the learned District Judge to hold an inquiry intothe application made by the 2nd and- 4th defendant-appellants by wayof petition and affidavit.
Appeal is allowed with costs.
The Registrar is directed to forward this record to the Registrarof the District Court of Gampaha forthwith and the learned DistrictJudge is directed to hold an inquiry in respect of the said applicationexpeditiously.
SOMAWANSA, J. – I agree.
Appeal allowed.
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