Sri Lanka Law Reports
I2000J 2 Sri UR.
than which is sought to be partitioned by the Plaintiff andaccordingly a Commission was issued and the Commissionerafter executing the Commission returned his Plan No. 681 on24. 10. 1975.
According to Journal Entry 54 dated 21. 03. 1977 whichwas a trial date, the 2nd Defendant stated to Court that he was
not ready for trial and obtained a date on payment of costs. Onthat day the following journal Entry appears on record
On a perusal of the above Journal Entries it is not clear onwhose instance the lis pendens has been registered for the 3rdtime.
Thereafter the case was fixed for trial and judgment wasdelivered on 11. 09. 1978 which judgment was subsequentlyset aside on an appeal made to the Court of Appeal.
Thereafter the case was fixed for trial again and thejudgment was delivered on 06. 12. 1988 against which thisrevision application had been filed.
On a perusal of the above Journal Entries and thedocuments of the photo stat copy of the case record, it is notclear whether the 2nd Defendant had taken the necessary stepsto register the lis pendens inaccordance with Section 19(l)(b)of the Partition law. The Journal Entry 54 dated 21. 03. 1977does not indicate whether the application to register the lispendens was made by the 2nd Defendant or whether it was
Thereafter according to the Journal Entiy 65 dated 08. 12.1977 the lis pendens has been registered under B 199/82.Journal Entry 65 is as follows:

Soysa v. Silva and Others (Jayawickrama, J.)
another application to get the lis pendens registered correctlyas it was done earlier by the Plaintiff.
It is to be noted here that the lis pendens was earlierregistered on the application of the Plaintiff under No. (B) 159/209 whereas on 08. 12. 1977 the lis pendens had beenregistered under (B) 199/82.
Even if one is to assume that the registration of .thelis pendens under B 199/82 was made by 2nd Defendant-Respondent for the larger land it is manifestly clear that therest of the provision of section 19(2) & (3) have not beenadhered to by the 2nd Defendant.
The mere registration of lis pendens alone would notentitle the 2nd Defendant to have a larger land partitionedunless he follows the procedure laid down under Section19(2)(a) to (g).
After the action is registered as the lis pendens affectingthe larger land the procedure laid down under 19( l)(b)(e)(f) and(g) has to be followed.
According to Section 19(2)(g) requirements of Section 12becomes applicable to a Defendant who seeks to have a largerland partitioned.
On a perusal of the case record I find none of the aboveprovisions have been adhered to by the 2nd Defendant.
In any event the 2nd Defendant has prayed for a dismissalof the action in his statement of claim.
In such a situation the only order which a Court couldmake is under Section 19(2)(c) and reject the claim to makea larger land partitioned. When one considers the aboveprovisions and the relevant Journal Entries in the case recordit is very clear that the learned District Judge had erred in lawby directing that a larger land be partitioned.
Sri Lanka Law Reports
1200012 Sri UR.
It is to be noted at this state that the learned District Judgehas disbelieved the evidence of the 1st Plaintiff and he hasconcluded that the 1st Plaintiff was not able to identify thecorpus to a certainty.
On a perusal of the evidence led in this case the lsl Plaintiffinitially has stated that the corpus should be only lot (A) butsubsequently, he has stated that lot (C) should be included,whereas the 3rd Defendant contested this position of thePlaintiff and has stated that lot (B) & (C) should be excludedfrom the corpus and only lot (A) should be partitioned.
Further it is to be noted that in answering issue No. 2, thelearned District Judge had decided that the 2nd Defendant hasprescribed to his rights but he has not indicated to what extentof the corpus he has prescribed.
For the aforesaid reasons I hold that the error in notfollowing the provision of Section 19(1) of the Partition Lawamounts to an illegality. Hence I cannot agree with thecontention of the learned counsel for the 2A Defendant-Respondent that the error is in relation to a question of fact.
For the above reasons we set aside the judgment of thelearned District Judge of Balapitiya dated 06.12.1998, and wetherefore dismiss the plaint of the Plaintiff as he has not provedand identified the corpus which is sought to be partitioned. Wealso dismiss the claim of the 2nd Defendant to have a larger landbe partitioned.
Application for revision is allowed.
We make no order as to costs.
J.A.N. DE SELVA, J. – I agree.
Application allowed.