Piyasena Petera v. Margret Perera (H. A G de Silva. J)
marSret perera and two others
COURT OF APPEAL
H. A G DE SILVA. J AND G. P. S. DE SILVA. J.
C.A APPLICATION No. 1596/82 – D. C. COLOMBO 13820/PNOVEMBER 7, 1983.
Partition Law No. 21 of 1977 – Finality attached to partition decree under section48 (1) – Revision and restitutio-in-mtegrum-ln what circumstances is the claimantentitled to revision.
In an action for partition the District Court entered interlocutory decree for thepartition of the field in suit. The petitioner moved in revision against this order on theground that he had no notice either of the action or of the preliminary survey of theland and that as a result if final decree is entered, he will lose a portion of his landand suffer irreparable damages.
The finality attached to an interlocutory decree of partition under section 48 (1) ofthe Partition Law, No. 21 of 1977, does not preclude an appeal court frominterfering with such decree by way of revision or restitutio in integrum where amiscarriage of justice has occurred. In this case the corpus to be partitioned had notbeen sufficiently identified either by means of the stated boundaries or by extentand the land of the petitioner appeared to be included in the corpus. Thereforethere has been a miscarriage of justice.
Case referred to
R. A. Somawathie v. Soma Madawella nee Delwatte et aI – S. C. 24/82 : C. A.Application No. 399/77 ; D. C. Kurunegala 3909/P of 29.6.83.
APPLICATION for restitutio-in-integrum and revision from an order of the DistrictCourt, Colombo.
G. G. Mendis for petitioner.
Respondents absent and unrepresented.
Cur. adv. vuIt.
January 13. 1984
A. G. DE SILVA, J.
This is an application for restitutio-in-integrum and/or revision inrespect of a partition case in which after trial interlocutory decreewas entered for a partition of the field in suit.
Sri Lanka Law Reports
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The plaintifNrespondents filed this partition action for the partitionof a field called Nagahadeniya Kumbura and Owita of about twoperches of paddy sowing extent (vide Plan 'A'). There were nopoints of contest in this action. After trial, interlocutory decree wasentered for the partition of the field (vide interlocutory decree B').
Preliminary Plan No. 2820 dated 7th of September, 1979 ('X )which was produced at the trial depicted the field sought to bepartitioned as 15.05 perches of sowing extent. To the south of thesaid field was the land called Kahatagahawatte Millagahawattaowned by the petitioner. This land is depicted in the Plan No.1675/66 A-C dated 10th November, 1932 (vide C'). According tothe petitioner, through preliminary Plan 'X' the plaintiffs havesought to include a portion of Kahatagahawatta Millagahawatteowned by the petitioner which is to the south of the said field andas a result of this encroachment on the petitioner's land, the fieldsought to be partitioned has been enlarged from 2 perches ofpaddy sowing extent to 15.25 perches (vide 'X').
The petitioner avers that he has had no notice of this action orany notice of the preliminary survey of the land and that the saidpreliminary plan has been made according to the fraudulentinstructions given to the Commissioner by the plaintiffs. Thepetitioner fears that if the said preliminary plan is used in the final•partition the petitioner will lose a portion of his land and inconsequence suffer irreparable damages.
A perusal of the plaint filed by the plaintiffs (1st and 2ndrespondents to this application) in the partition action shows thataccording to the schedule to the plaint, the field sought to bepartitioned is Nugagahadeniya Kumbura and owita containing about2 perches of paddy sowing extent. On the south it is said to bebounded by the land belonging to one Simon de Alwis Perera andMarthenis Perera Weerasinghe. Whether these persons were thepredecessors-in-title of the petitioner is not known. Plan 'X' doesnot show that the field in suit is bounded on the south byKahatagahawatta Millagahgwatte said to be owned by thepetitioner, though Plap 'C' made in 1932 depicts the land calledKahatagahawatta Millagahawatta in extent 1 acre-0 rood-11.6perches bounded on the north by Nagaha Kumbura.
Piyasena Perera v. Margret Perera (H A. C. de Silva. J.j
The survey report states that the boundaries in the schedule donot exist now except for Nagahadeniya on the north. It furtherstates that the extent referred to in the schedule is 2 perches whichmeasure he is now unaware of, hence it was not possible for him toidentify the land surveyed with that in the schedule. It is also statedthat the boundaries of the entire land were pointed out by theplaintiff, and there is nothing to indicate that the petitioner waspresent at the survey.
The plaintiffs-respondents though noticed have not thought fit tofile their objections and traverse the statements of fact made in thepetition.
While Plan ’X" depicts lots A & B as 15.25 perches in extent,according to the schedule to the plaint the field sought to bepartitioned is 2 perches in paddy sowing extent. This is one of thereasons why the surveyor has reported that he is unable to identifythe land with that in the schedule to the plaint.
Interlocutory decree "B' entered in the partition case shows thatallotments of shares in the field sought to bepartitionedareoutof lotsA & B of the land depicted as Naghadeniya Kumbura and Owita inPlan *X*.
Further the learned trial Judge has failed to address his mind tothe apparent discrepancy between the land described in theschedule to the plaint and the land surveyed and depicted as Lots %& B in Plan 'X', especially in the light of the statement made by thesurveyor in his report that he is unable to identify the land as thatdescribed in the schedule to the plaint.
It therefore appears that there has not been a sufficientidentification of the corpus as the land depicted in Plan ‘X’ eitherby means of the stated boundaries or by extent.
The next question to be decided is whether in view of the finalityattached to the interlocutory and final decrees of partition bysection 48 (1) of the Partition Law, No. 21 of 1977, this Courtcould interfere by revision or restitutio-in-integrum with such adecree.
Section 48 (1) enacts that-
"Save as provided in sub-section 5 of this section, the
interlocutory decree entered under.section 36 shall, subject to
Sn Lanka Law Reports
11984] I S L R.
the decision on any appeal which may be prefeved therefrom,and in the chse of an interlocutory decree, subject also to theprovisions of sub-section 4 of this section, be good and sufficientevidence of the title of any person as to any right, share andinterest awarded therein to him and be final and conclusive for allpurposes against all persons whomsoever, whatever right, title orinterest they have or claim to have, to or in the land to which suchdecree relates and notwithstanding any omission or defect ofprocedure or in the proof of title adduced before the Court or thefact that all persons concerned are not parties to the partitionaction, and the right, share or interest awarded by any suchdecree shall be free from all encumbrances whatsoever otherthan those specified in that decree. …"
The Supreme Court in the unreported case of R. A. Somawathiev. Soma Madawelta nee Delwatta et-al (1) has, after acomprehensive review of all the existing authorities on the relevantprovisions in the Partition Act, No. 16 of 1951, the Administrationof Justice (Amendment) Law, No. 25 of 1975, and the currentPartition Law, No. 21 of 1977 held that 'the powers of revision andrestitutio-in-integrum have survived all the legislation that havebeen enacted up to date. These are extraordinary powers and willbe exercised only in a fit case to avert a miscarriage of justice. Theimmunity given to partition decrees from being assailed on theground of omissions and defects of procedure as now broadlyRefined, or the failure to make ‘persons concerned' parties to theaction should not be interpreted as a licence to flout the provisionsof the Partition Law. The Court will not hesitate to use its revisionarypower to give relief where a miscarriage of justice has occurred'.
Considering the conclusions that I have arrived at, on the facts ofthis case, i.e. that the corpus to be partitioned has not beensufficiently identified as the land depicted in Plan 'X' either bystated boundaries or by extent, I feel there has been a miscarriageof justice in that the land of the petitioner appears now to beincluded in the corpus. I therefore set aside the interlocutorydecree and the proceedings had up to the time of entering suchdecree and order a re-trial of this case. The applicant will bear hisown costs of this application.
G. P. S. DE SILVA, J.-.I agree.*