059-SLLR-SLLR-2003-V-3-SUMANAWATHIE-AND-ANOTHER-v.-ANDREAS-AND-OTHERS.pdf
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SUMANAWATHIE AND ANOTHERVANDREAS AND OTHERSCOURT OF APPEALDISSANAVAKE, J.
SOMAWANSA, J.
CA 528/96(F)
D.C. GALLE 9171 /PSEPTEMBER 9, 2003
Partition Law No. 21 of 1977 – Sections 25 and 27 – Framing of Issues – Is itimperative? Examination of title – Investigation defective – Can the Judgmentstand? Civil Procedure Code – Section' 187 – Requisites of a Judgment -Evaluation of evidence – Partition Ordinance No. 10 of 1863 – Section 9.
HELD:
There is a failure on the part of Court to evaluate the evidence in termsof S. 187, C.P.C. and Sections 25/27 – Partition Law.
Partition Decree cannot be the subject of a private agreement betweenparties on matters of title which the Court is bound by law to examine.
On an appeal in a Partition Action if it appears to the Court of Appealthat the investigation has been defective it should set aside the decreeand make an order for proper investigation.
APPEAL from the Judgment of the District Court of GalleCases referred to:
John Singho v Pedris Hamy – 48 NLR 345
Juliana Hamine v Don Thomas – 59 NLR at 549
Sirimalee v D.J.Pinchi Ukku – 60 NLR 448 at 451.
P.M.Cooray v Wijesuriya – 62 NLR 158 at 160/161.
Mohamadaiy Adamjee v Hadederd Sadeen – 58 NLR 271 at 236
Nehru Gunatilake P.C. with Dhammika Pathirana for plaintiff-appellantsD.Akurugoda with K.Nanayakkara for the 16,19,20 defendants-respondents.
Cur. adv. vult
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Sumanawathie and another v Andreas and others
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November 7, 2003SOMAWANSA, J.
The plaintiffs-appellants instituted this partition action in the 01District Court of Galle seeking to partition the land called andknown as ‘Poddiwela Kebella’ morefully described in the scheduleto the plaint.
There was no contest with regard to the land to be partitionedor the improvements. The only contest was in respect of the devo-lution of title to the land.
At the trial five admissions were recorded and parties went totrial on 25 points of contest and at the conclusion of the trial thelearned District Judge by his judgment dated 28.06.1996 dismissed 10the action of the plaintiffs-appellants. It is from the said judgmentthat the plaintiffs-appellants have lodged this appeal.
It is contended by the counsel for the plaintiffs-appellants thatthe learned District Judge has failed to evaluate the evidenceadduced in respect of the 3rd original owner Mapalagama LiyanageDon Philip de Silva and has thereby seriously misdirected himself.
On an examination of the judgment of the learned District Judge itis to be seen that the contention of the counsel for the plaintiffs-appellants is correct.
At the trial the 2nd plaintiff-appellant had given evidence and 20had spoken to the devolution of title of the 3rd original owner thesaid Don Philip de Silva. It is to be seen that the 19th defendant-respondent also under cross examination has admitted the title ofthe 3rd original owner. However the learned District Judge has notconsidered or dealt with the rights, title and interest of the said 3rdoriginal owner Don Philip de Silva.
The learned District Judge in his judgment has observed thatthere was a contest between the plaintiffs-appellants and the 16th,
19th, 20th, 21th, and 37th defendants-respondents and goes on tostate that what he has to decide is according to whose pedigrees 30should the corpus be partitioned. Thereafter the learned DistrictJudge goes on to examine the various pedigrees put forward by theparties, but does not embark on an examination of title of parties.According to the plaintiffs-appellants’ pedigree one of the original
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owners Weliwatta Liyanage Solomon Appuhamy had only two chil-dren. However the learned District Judge has come to a finding thathe could not accept this position as the 21 st and 37th defendants-respondents’ pedigree showed that the said Solomon Appuhamyhad 4 children. He also has come to a finding that the pedigree ofthe plaintiff-appellant cannot be accepted as the 21st and 37thdefendants-respondents in their statement of claim aver that thereare other original owners. It is also to be'noted that when the con-testing 19th defendant-respondent sought to mark a deed on whichthe 19th defendant-respondent derived title he was prevented frommarking the said deed as it was not referred to in the statement ofclaim filed by him.
As for possession it appears that the learned District Judgehas come to a finding that the plaintiff-appellant has failed to provehis possession, for the reason that the 2nd plaintiff-appellant didnot possess a farmer’s identity card nor was his name included inthe Agricultural Land Registry when there was other evidence avail-able. It is also to be seen that the learned District Judge had decid-ed not to accept the pedigree of the plaintiff-appellant as well as thedefendants-respondents for the reason that shares set out in thedeeds marked do no not tally with some of the shares claimed intheir pedigree. .However this should not be the basis on which apedigree should be rejected.
Counsel for the 19th defendant-respondent contends that thelearned District Judge has answered the issues having being fullyacquainted with the facts and the law pertaining to the partition andparticularly the facts of this case and that he has not left a singleissue unanswered. Further, he submits that it is not imperative toframe issues in a partition case and it is also not imperative toanswer all the issues raised in a case. For the proposition of thislaw he has cited John Singho v Pedris Hamy<1> wherein the headnote reads:
‘Where in a partition action all parties agree on the points in dis-pute and state them to Court the Judge should not considerwithout giving due notice to the parties any other matters thatmay appear to him to arise between the parties in the course ofthe proceedings. The position will however be different wherethe points in dispute are not set down in the form of issues”.
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Sumanawathie and another v Andreas and■ others
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The dispute in that case was whether Andiris Naide ownedthe land or whether Aberan, his son owned the land. The learnedDistrict Judge found on a balance of evidence that Andiris Naideand not Aberan was the original owner. However without proceed-ing to enter decree declaring the successor in title from AndirisNaide was entitled to the undivided shares of the land as ascer-tained by him he took upon himself to decide whether some of thesuccessors in title of Aberan had not acquired by prescriptive pos- sosession against all the other parties. It is to be seen that the deci-sion in that case has no application to the instant case, for 26 pointsof contest have been raised in the instant case and all of them havebeen answered by the learned District Judge of which 19 of themhave been answered as ‘not proved’. What has to be looked into iswhether the learned District Judge has evaluated the evidence interms of section 187 of the Civil Procedure Code and also compliedwith the provisions of section 25 of the Partition Law.
On an examination of the evidence led and also the judgmentof the learned District Judge, I would hold that the learned District 90Judge has failed to comply with the provisions of section 187 of theCivil Procedure Code as well as sections 25 and 27 of the PartitionLaw, No.21of 1972 and has failed to investigate title.
Section 187 of the Civil Procedure Code reads as follows:
“The judgment shall contain a concise statement of the case,the points for determination, the decision thereon, and thereasons for such decision; and the opinions of the assessors(if any) shall be prefixed to the judgment and signed by suchassessors respectively”. –
Section 25 of the Partition Law reads as follows:'100
“the court shall examine the title of each party and
shall hear and receive.evidence in support thereof and shalltry and determine all questions of law and fact arising in thataction in regard to the right, share, or interest of each partyto, of, or in the land to which the action relates, and shall con-sider and decide which of the orders mentioned in section 26should be made”.
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In the case of Juliana Hamine v Don Thomas <2> 549 per L.W.
De'Silva, A.J.
“We are of the opinion that a partition decree cannot be the nosubject of a private arrangement between parties on mattersof title which the Court is bound by law to examine. While itis indeed essential for parties to a partition action to state tothe Court the points of contest inter se and to obtain a deter-mination on them, the obligations of the Court are not dis-charged unless the provisions of section 25 of the Act arecomplied with quite independently of what parties may ormay not do”.
In the case of Sirimalie v D.J.Pinchi Ukku^ at 451 per
Sansoni, J.120
“It should be remembered that section 25 of the Partition Act,
No. 16 of 1951, requires the Court to “examine the title ofeach party and hear and receive evidence in support there-of, and try and determine all questions of law and fact arisingin regard to the right, share and interest of each party”. In thiscase the trial judge has failed to perform these duties and itis not too late for us to require him to perform them at anoth-er trial”.
In the case of P.M.Cooray v Wijesuriya^ at 160/161 per
Sinnatamby, J.130
“It is a common concurrence for a deed to purport to conveyeither much more or much less than what a person is entitledto. Before a Court can accept as correct a share which isstated in a deed to belong to the vendor there must be clearand unequivocal proof of how the vendor became entitled tothat share. How then is the proof to be established in a Courtof Law? It only too frequently happens, especially in uncon-tested cases, that the Court is far from strict in ensuring thatthe provisions of the Evidence Ordinance are observed; andwhen this happens where there is a contest in regard to the 140pedigree, as in the present case, the inference is that theCourt has failed totally to discharge the functions imposedupon it by section 25 of the Act. It cannot be impressed toostrongly that the obligation to examine carefully the title of the
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Sumanawathie and another v Andreas and others
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parties becomes all the more imperative in view of the farreaching effects of section 48 of the new Act which seems tohave been specially enacted to overcome the effect of thedecisions of our Courts which tended to allevjate and mitigatethe rigours of the conclusive effect of section 9 of therepealed Partition Ordinance No. 10 of 1863”.150
In the case of Mohamadaly Adamjee v Hadad Sadeert5) at226 per Lord Cohen.
“On an appeal in a partition action if it appears to the court ofappeal that the investigation has been defective it should setaside the decree and make an order for proper investigation”.
In the instant case as stated above, the learned DistrictJudge has failed to investigate the title of the parties to the actionmore so the title of the plaintiffs-appellants. In the circumstances,the judgment of the learned District Judge cannot stand. I am mind-ful of the fact that the action has been filed in 1984. As the learned 160District Judge has dismissed the action of the plaintiffs-appellantsto embark on an investigation of title of parties at this stage wouldbe to take upon myself the function of the trial Judge, hence I haveno other option but to give directions for a re-trial.
In view of the above reasons, I would allow the appeal of theplaintiffs-appellants and set aside the judgment of the learnedDistrict Judge and direct a trial de novo. The learned District Judgeis directed to hear and conclude this action as expeditiously as pos-sible. The 19th defendant-respondent will pay Rs.5000/ as costs ofthis appeal.170
DISSANAYAKE, J. – I agree.
Appeal allowed.