SOMASIRI vs FALEELA AND OTHERS

024-SLLR-SLLR-2005-V-2-SOMASIRI-vs-FALEELA-AND-OTHERS.pdf


CA
SOMASIRIvs.
FALEELA AND OTHERS121
COURT OF APPEALSOMAWANSA J(P/CA)
BASNAYAKE J.
A. No. 497/2004(REV.)
C. GALLE No. 13105/PFEBRUARY 10, 14, 2002
Partition Law 21 of 1977 – Section 25( 1), 48, 67 – Investigation of title imperative- Application in Revision – No appeal lodged – Could the application beentertained ? – Evidence Ordinance Section 44.
The 8th Defendant Petitioner sought to revise the Judgment of the TrialCourt, on the basis that Court had: not investigated title. Court over-ruled thepreliminary objection and held that it has power to exercise revisionaryjurisdiction having regard to the exceptional circumstances pleaded.
Held:
The error had arisen owing to the failure of the Trial Judge to investigatetitle. The trial Judge had without examining the deeds personallyfollowed the easy way by allotting the shares as prayed for in the Plaint,and had disregarded the amended statement of claim of the Petitioner.
The trial Judge must satisfy himself by personal Inquiry that the Plaintiffhas made out a title to the land sought to be partitioned and that theparties before Court are solely entitled to the land.
While it is indeed essential for parties to a partition action to state toCourt the points of contest inter-se and to obtain a determination onthem the obligations of the courts are not discharged unless theprovisions of Section 25 of the Partition Law are complied with quiteindependently of what parties may or may not do.
APPLICATION in Revision from the Judgement of the District Court of Galle.
Cases referred to :
Cynthia de Alwis vs. Marjorie de Alwis and others- 1997 3 Sri LR 113
Kumarihamy vs. Weeragama – 43 NLR 265
Sri Lanka Law Reports
(2005) 2 Sri L. R.
122
Mather vs. Thamotharampillai – 6 NLR 246
Thayatnayagam vs. Kanthiresa Pillai – 8 CWR 152
Juliana Hamine vs. Don Thomas – 59 NLR 546W. Dayaratne for 8th Defendant Petitioner.
Bimal Rajapakse for Plaintiff Respondent.
cur. adv. vult.
March 14, 2005ERIC BASNAYAKE J.
This is an application in revision by the 8th defendant petitioner (8thdefendant) to revise the judgment of the learned District Judge of Galledated 02.10.2003. By this judgment the court had ordered a partition asprayed for by the plaint. The plaintiff had given 19860/166200 shares to the8th defendant in the plaint. In the judgment, the 8th defendant had beengiven the same share. The 8th defendant complains that he was deprivedof 1.3 perches of land and the buildings No. 1,2 and 9 in the preliminaryplan marked ‘X
This court issued notice on the parties and after the objections and thecounter objections were filed, a preliminary objection was taken by theplaintiff disputing the rights of the 8th defendant to invoke revisionarypowers of the Court of Appeal without exercising the right of appeal interms of section 67 of the Partition Act. The preliminary objection wasoverruled by this Court and held that it_has power to exercise revisionarypowers having regard to the exceptional circumstances of this application.The counsel thereafter agreed to dispose of this inquiry by way of writtensubmissions. Those submissions have been tendered now.
The facts of this case are as follows. The plaintiff filed this case in theDistrict Court of Galle on 29.03.1996 to have the land described in paragraph2 to the plaint partitioned. In the plaint the plaintiff allotted 19860/166200shares to the 8th defendant. The defendant obtained this share by deed 8V 1. The defendant filed a statement of claim on 11.10. 1999. By thisstatement the 8th defendant claimed the rights he acquired through deed‘8V1 the buildings No. 1 and 9 and the area covered by the buildingbearing the assessment No. 441 in plan ‘X’. The building bearing theassessment No. 441 is identified as building No. 6 in the plan ‘X’. At thepreliminary survey , the 8th defendant claimed buildings ,1,2 and 9, whichis a well. The assessment number of building No. 1 is No. 449. There is no
CA
Somasiri vs. Faleela and others (Eric Basnayake J.)
123
separate assessment number for building No. 2. The buildings 1 and 2 areadjacent to each other. The plaintiff claimed buildings No. 1 and 2. Therewere no other claimants for building No. 9 before the surveyor, other thanthe 8th defendant.
At the commencement of the trial there was no dispute with regard tothe corpus and the pedigree of the plaintiff. The dispute was with regard tothe buildings 1,2 and 9 over which issues 1 and 3 were raised. While thecase was proceeding, the 8th defendant filed an amended statement ofclaim. In the amended statement the 8th defendant claimed 1.3 perchesin addition to what he claimed through deed 8V1. This 1.3 perches waspurchased from the 1st defendant prior to the institution of this actionthrough deed No. 920 and marked ‘8V2’. The 8th defendant claims that heowned building bearing assessment No. 449 with ah area of 1.3 perches,through this deed. The building bearing assessment No. 449 is shown inplan ‘X’ as building No. 1 which the 8th defendant had already claimed inthe original statement. In evidence too the 8th defendant (through hiswitness) claimed 6.62 perches over which there is no dispute and 1.3perches and building No. 1 in plan ‘X’ (assessment No. 449) through deed‘8 V 2’. He also claimed the well which is No. 9 in plan X. The 8th defendantdid not claim building bearing assessment No. 441 (No. 6 in plan 'X’)either in the amended statement of claim or in oral evidence. It appears tome that 441 is a typing error as there is no basis to claim building No. 441.The correct No. appears to be No. 449 which is building No. 1 in the plan X.
The learned District Judge identified the main dispute in this case asinvolving buildings No. 1,2, 6, 7 and 9. The learned Judge states that the8th defendant failed to superimpose the plan (No. 2549) showing the landsthat he had purchased on plan ‘X’. Therefore he said that the lands referredto by deeds 8V 1 and 8 V 2 fall outside the corpus. Hence the learnedJudge finds that the 8th defendant failed to prove the ownership to buildingsNo. 1 and 2. The learned counsel for the plaintiff too submits in the writtensubmissions tendered to court that the burden was on the 8th defendantto prove that the lands purchased by the 8 th defendant on deeds ‘8V1’and ‘8 V2’ formed part of the corpus and the 8th defendant failed to dischargethis burden. The learned counsel further submits that this is a frivolousapplication which should be dismissed with heavy costs.
12-
Sri Lanka Law Reports
(2005) 2 Sri L. R.
The 8th defendant produced two deeds marked ‘8V1 ’ and ‘8V2’ to provehis case. By considering the deed 8V1, it may be construed that theplaintiff had given the 8th defendant 19860/166200 shares in the plaint.The learned District Judge too had given 19860/166200 shares to the 8thdefendant in the judgment on the same basis. That is by regarding the 8thdefendant as having obtained a share through this deed. Therefore, itbecomes clear that the learned Judge erred in stating that the land referredto by deed 8V1 does not form part of this land.
The 8th defendant claimed 1.3 perches together with building No.1through deed marked 8V2. The learned Judge states that the land referredto by this deed too does not form part of the corpus. By deed 8V2 the 8thdefendant purchased 1.3 perches of land together with building No. 449from the 1 st defendant in 1995. This action was filed in 1996. The building449 is shown in the preliminary plan marked X as building No. 1. The 8thdefendant claimed buildings No. 1,2 and 9 before the surveyor. The plaintifftoo claimed buildings 1 and 2 before the surveyor. The plaintiff said inevidence that he had no possession. Although, the 8th defendant doesnot say anything about possession, one can assume that the 8th defendanthad been in possession, considering the fact that the 8th defendantpurchased this building from the 1st defendant. The learned counsel forthe 8th defendant states in the written submissions filed that the 8thdefendant’s son constructed a building and has a barber salon in thatpremises. This fact had not been challenged by the plaintiff. It is againstall these unchallenged evidence that the learned Judge states that theland referred to in deed 8V2 outside the corpus. I am of the view that thelearned Judge erred in this respect too.
The error had arisen owing to the failure of the learned District Judge toinvestigate the title of the parties which he was required to do in terms ofsection 25(1) of the Partition Law No. 21 of 1977. The section providesthat
“On the date fixed for the trial of a partition action or on any otherdate to which the trial may be postponed or adjourned, the court shallexamine the title of each party anti shall hear and receive evidence insupport thereof and shall try and determine all questions of law andfact arising in that action in regard to the right, share or interest of eachparty to, of, or in the land to which the action relates, and shall considerand decide which of the orders mentioned in section 26 should be made”(emphasis is mine).
CA
Somasiri vs. Faleela and others (Eric Basnayake J.)
125
Justice F.N.D. Jayasuriya observed in Cynthia de Alwis vs. Marjorie deAlwis and two others1 as follows :
“A District Judge trying a partition action is under a sacredduty to investigate into title on all material that is forthcomingat the commencement of the trial. His Lordship cited a dicta byJustice De Kretser in Kumarihamy vs. Weeragama (2) where HisLordship states thus “A number-of decisions of this court haveemphasized the duty of the court to investigate title fully and not totreat a partition action as an action inter partes. His Lordship alsoquoted Chief Justice Layard in Mather Vs. Thamotharam Pillai3 that“ t he trial judge must satisfy himself by personal inquiry that theplaintiff has made out a title to the land sought to be partitionedand that the parties before court are solely entitled to the land”.In the exercise of this sacred duty to investigate title a trial judgecannot be found fault with for being too careful in his investigation.He has every right even to call for evidence after the parties haveclosed their cases – Thayalnayagam vs. Kanthiresa Pillai.(4)
His Lordship L. W. De Silva A. J. held in Juliana Hamine vs. DonThomas(5) that “a partition decree cannot be the subject of aprivate arrangement between parties on matters of title whichthe court is bound by law to examine. While it is indeed essentialfor parties to a partition action to state to the court the points ofcontest inter se and to obtain a determination on them, theobligations of the courts are not discharged unless the provisionsof section 25 of the Act (same as section 25 of the Partition Law)are complied with quite independently of what parties may ormay not do. The interlocutory decree which the court has toenter in accordance with its findings in terms of section 26 ofthe Act is final in character since no interventions are possibleor permitted after such a decree. There is therefore the greaterneed for the exercise of judicial caution before a decree isentered. The court of trial should be mindful of the specialprovisions relating to decrees as laid down in section 48 of theAct. According to its terms, the interlocutory and final decreesshall be good and sufficient evidence of the title of any personas to the interests awarded therein.and shall be final andconclusive for all purposes against all persons, whomsoever,notwithstanding any omission or defect of procedure or in the

126
Sri Lanka Lai-.' Reports
(2005) 2 Sri L. R.
proof of title adduced before the court. and notwithstandingthe provisions of section 44 of the Evidence Ordinance, andsubject only to the two exceptions specified in sub-section 3 ofsection 48 of the Act”.
It is unfortunate that the learned District Judge, without examining thedeeds personally, followed the easy way by allotting the shares as prayedfor in the plaint and fell into this grave error in concluding that the landsreferred to in deeds 8V1 and 8V2 did not form part of the corpus. Theplaintiff had given the due share to the 8th defendant on deed 8V1. The 8thdefendant had acquired building No. 1 (assessment No. 449) by deed 8V2and claimed same in the original statement filed on 11.10.1999. Althoughthe 8th defendant was entitled to the soil as well (1.3 perches) by thisdeed, he had failed to claim the same in the original statement. This hehas done in the amended statement of claim filed thereafter. The 8thdefendant’s amended statement of claim was allowed after an inquiry/,subject to costs. The learned Judge by holding that the lands referred toby the deeds 8V1 and 8V2 do not form part of the corpus deprived the 8th_ defendant of what he acquired by deed 8V2; that is 1.3 perches of landand the building No. 1 which he is occupying. The 8th defendant is thereforeentitled to the share allotted to him in the judgment namely 19860/166200and 1.3 perches of the soil.
The 8th defendant acquired this 1.3 perches of land from the 1stdefendant. Therefore, the 1 st defendant's share should be less 1.3 perches.This 1.3 perches is the area that is covered by the building bearing theassessment No. 449 (building No.1 in plan X). Therefore, it is the 8thdefendant who is entitled to this building. The 8th defendant was the onlyclaimant before the surveyor of the well which is numbered as No. 9 inplan X. The plaintiff who was present before the surveyor and claimedbuildings No. 1 and 2 did not claim the well. There is no evidence that itwas the plaintiff who constructed it. There is no evidence of the plaintiffeven using this well. The plaintiff had no possession in the land. Therefore,there is no basis to give the well to the plaintiff. On the material beforecourt, it is the 8th defendant to whom this well should have been given.Therefore, I am of the view that it is the 8th defendant who is entitled to thewell.
The building No. 2 appears to have had no separate assessment number.It appears that it is part of the building No. 449. The building No. 2 wasclaimed by the 8th defendant and the plaintiff. If the plaintiff had nopossession in the land, it was the 8th defendant who occupied this building
CA
Tissera and Others vs. Le&lawathie and Others,
127
and therefore buildings No. 1,2 and 9 should have been given to the 8thdefendant. In view of the foregoing reasons I allow this application by the8th defendant in terms of prayer (C) to the petition with costs fixed at Rs.5,000.
ANDREW SOMAWANSA J. (P/CA) — l agree
Application allowed.