079-NLR-NLR-V-51-THEVCHANAMOORTHY-et-al-Appellants-and-APPAKUDDY-et-al-Respondents.pdf
ThevcJtanamoorthy v. Appakuddy
317
1950Present: Jayetileke S.P.J. and Gunasekara J.THKVOHANAMOORTHY et al„ Appellants, awl APPAKUDDY et al.,Respondents
S. C. 393—D. C. -Jaffna, 1,159
Partition Ordinance—Section 6—Commissioner's scheme of partition—lie-issueof commission to Commissioner to submit afresh scheme—Return of commission—Duty of Court to issue notice to all parties again—Co-owner's tight to be allottedportion which contains Ms improvements.
Where, in. a partition action, a second scheme of partition is ordered noticeshould be given to the parties of the day on which the second scheme will beconsidered by tho Court. The notice which the Court has to give to the partiesin terms of section 6 of the Partition Ordinance cannot be restricted to the day-fixed for the consideration of the original scheme of partition proposed by theCommissioner.
A oo-owner should be allotted the portion which contains his improvementswhenever it is possible to do so.
318JAYKTILEKK S.P.J.—Thevchanomoorlhy v. Appakuddy
.A.PPEAL from a judgment of the District Court, Jaffna.
3. J. V. Chtlvanayagam, K.C., with S. Thangarajah, for the 13th to16th defendants appellants.
H. W. Tambiah, with A. Nagendm, for the 20th to 23rd and 26th to20th defendants respondents.
C. Shanmuganayagam, for the plaintiffs respondents.
Cur. adv. tuit.
March 10,1950. Jayetilekb S.P.J.—
This is an action for the partition of a land called Puthiyanputhukadu.The plaintiffs alleged in para. 21 of the plaint that, about 20 years earlier,the land was amicably partitioned among the co-owners, and that dividedlots were possessed by the co-owners since then, but the title deedsdealt with undividod shares. In para. 22 they alleged that the partiesworo in possession of the lots referred to therein, and were entitled tothe improvements effected by them on the said lots. They alleged thatlot 3 in the sketch annexed to their plaint with the m&rgosa trees andyoung palmyrahs in it was possessed by tho 13th, 15th and 16th defendants.
On February 18, 1944, the District Judge issued a commission toC. J. Sabapathy, Licensed Surveyor, to make a survey of the land and tofurnish tho Court with a plan. On March 23, 1944, the Commissionerreturned the Commission to Court with a plan bearing No. 784 and hisreport.
Paragraph 2 of the report reads —
“ The 1st plaintiff stated that the land was amicably partitionedand they arc claiming the respective lots for the past several yearsand that lots 1, 6, 7, 15 and 16 do not form part of the land underpartition. According to him the respective lots with their appur-tenances are claimed as follows:—
Lot 2 by 24th defendant.
Lot 3 by 23rd defendant.
Lot 4 by 7th and 8th defendants.
Lot 5 by 10th and 12th defendants.
Lot 9 by 1st, 2nd, 4th and 6th defendants.
Lot 10 by 7tb, 8th and 9th defendants.
Lot 11 by 17th, 18th and 19th defendants.
Lot 12 by 13th, 15th and 16th defendants.
Lot 14 by plaintiff.”
When plan No. 784 is compared with the sketoh it is clear that lot 12corresponds with lot 3 in the sketch.
Several defendants filed answers. The 7th, 8th, 9th, 10th 17th, 19thand 24th defendants filed a joint answer in which they alleged that lot2 was possessed by the 24th defendant, lots 4 and 10 by the 7th and 8th
.JAYETILEKE S.P.J.—Thevcharvunoorthy v. Appakuddy31t>
defendants, lot 5 by tbe 10th and 12th defendants and lot 11 by the 17th,18th and 19th defendants. In para. 10 of their answer they alleged thatthey had acquired a title by prescription to the said lots, and they prayedthat they may be declared entitled to and allotted the said lots.
The 1st, 3rd, 4th, 5th mid 6th defendants filed a joint answer. Theyalleged that the 1st, 2nd, 4th and 6th defendants were in possession oflot 9 and the houses and plantations standing thereon.
On April 3, 1944, the 29th defendant moved to be added as a partyand his application was allowed. In his statement of claim he allegedthat he had purchased from the 25th defendant a 1 /8th share of a portionthat was dividedly possessed for a period of over ten years, which portionwas to the South of the portion belonging to the plaintiff. He prayedthat a 1 /8th share be allotted to him out of that portion.
At the trial which was held on July 2,1945, the plaintiff gave evidence.Ho stated that the land was possessed dividedly for convenience ofpossession, and that he was in possession of lot 14, the 13th, 15th and 16thdefendants were in possession of lot 12, and various other defendantswere in possession of other lots.
On August 23, 1946, interlocutory decree was entered. Paragraphs1, 4 and 10 read os follows:—
Para 1. A divided 32/288 share with its appurtenances and the shopbuilding lying in lot 9 be allotted and given to the 1st and 2nd
defendants,
Para 4. A divided l/18th or 16/288th share which is reduced outof the 1st and 2nd defendants’ share be allotted and given tothe 29th defendant.
Para 10. A divided 24/288th share with its appurtenances and withthe improvements in lot 12 bo allotted and given to the 13tb,15th and 16th defendants.
It is clear from the plaint and the answers filed by the defendants thatall the parties desired that they should be allotted the shares to whichthey were entitled out of the lots they were in possession of. When thelearned District Judge used the word “divided” in the paragraphsreferred to above and in all the other paragraphs in the interlocutorydecree, it seems to me that what he meant was that an extent equal tothe undivided shares he referred to should be given to the various partiesout of the divided lots they were in possession of. That would amountto'a special direction to the Commissioner as to the manner in whichthe partition was to be made. Quite apart from the direction, one ofthe rules to be observed by a Commissioner in partitioning is that, when-ever possible, owners should be allotted the portions containing theirimprovements.
On August 27,1946, a commission was issued to the same Commissionerauthorising and requiring him to make a partition of the said land andof the appurtenances thereto belonging. He returned the commissionto Court on January 15, 1947, together with a plan bearing No. 1,010and his report. In that plan he allotted to the 13th, 15th and 16thdefendants lot 14 which is a portion of lot 12 in plan 784, and he allottedto the 29th defendant lot 12.
320JAYETILEKE S.P.J.—Thevchanamoorthy v. Appakuddy
On the same day the District Judge appointed February 11, 1947,for consideration of the Commissioner’s return and directed notice tobo given to all the parties as required by section 6 of the PartitionOrdinance.
On February 11, 1947, the inquiry could not be held as notices werenot served on some of the parties. The 29th defendant appeared in Courtand stated that he objected to the scheme of partition. The Courtgave him time till March 11, 1947, to file his objections, and directednotices to be re-issued on the parties who were not served. On March11, 1947, the notices were reported to have been served, and the 29thdefendant filed his objections. The Court, thereupon, fixed the inquiryinto the objections for April 1,1947.
The 29th defendant’s objection to the scheme was a curious one.He said that he had agreed to sell his share to his lessees, the 26th, 27thand 28th defendants, and received an advance of Rs. 1,000, and that the26th, 27th and 28th defendants requested him to get his share allottedadjoining the lot that was allotted to the 21st defendant who was asister of the 26th defendant. It was really not an objection but an appli-cation by him to amend his statement of claim and the interlocutorydecree, and it should not have been entertained by the Court. On the'date of inquiry the 29th defendant asked the Court to give him a lotadjoining lot 15 which had been allotted to the 21st defendant, andmoved that the Commission be rc-issuod to the Commissioner to submita fresh scheme. The District Judge allowed the application and issueda Commission to the same Commissioner returnable on June 9, 1947.
On June 9, 1947, the Commissioner moved for and obtained time tillJune 30,1947, for the return of the Commission, on which date he returnedthe Commission with a plan bearing No. 1,010.4 and his report, and theDistrict Judge fixed the inquiry for July 21, 1947. In plan No. 1,010athe Commissioner allotted to the 29th defendant lot 14 which he hadpreviously allotted to the 13th, 15th and 16th defendants. On July 21,1947, the 13th, 15th and 16th defendants were absent, and the DistrictJudge after examining the Commissioner adopted pian No. 1,010 subjectto the modifications in plan No. 1,010a.
On July 30, 1947, the 13th, 15th and 16th defendants filed an affidavitin which they stated that they were not aware that consideration of thescheme of partition had been fixed for July 21,1947, and moved that theorder made on July 21,1947, be vacated. The District Judge refused toallow the application for the following reasons :—
That the affidavit did not disclose any grounds for setting aside
the order.
That there was much cogency in the argument of the 29th defen-
dant that he should be allotted lot 14 which adjoins lot 15allotted to the 21st defendant as the 29th defendant had agreed tosell hia share to the 26th defendant, a sister of the 21st defendant.
That the 13th, 15th and 16th defendants had been given compensation
for the improvements.
The present appeal is against that order. Mr. Chelvanayagam arguedthat the order made on July 21, 1947, is invalid as notice was not given
JAYETILEKE S.P.J.—'I'htvchtinoiiioorlhy v. Appaku/ldy321
to the 13th, 15th and 10th deieiulaufs that the alternative schemeNo. 1,010a would bo considered by the Court on July 21, 1947. Herelied on section 0 of the Partition Ordinance which provides asfollows :—
On the receipt of the return of such Commission the Court shallfix a day, of which notice shall be issued to all the parties and whichsaid notice shall be served in the same way as the original summonsfor considering the return ; and on that day or such other day astho Court shall then appoint, the Court after summarily hearing theparties, and if need be, making such further reference as the Courtshall deem necessary, shall either confirm or modify the partitionproposed by tho Commissioner and enter final judgment accordinglyin the cause.”
The section provides that on the return of the Commission (1) the Courtshall fix a day for consideration of the return and (2) the Court, shallgiv o notice to all tho parties that it would consider the return on that day.It provides further that on the day fixed by the Court or on such otherday as the Court shall then appoint the Court shall confirm or modifythe partition proposed by the Commissioner.
In this case notice was given to the parties that the first scheme ofpartition would be considered by the Court on February II, 1947, butno notice was given to the parties that the second scheme of partitionwould be considered by the Court on April 1, 1947. The requirement,regarding notice is imperative. In Disuanayuke t*. Diws * it was heldthat if the scheme of partition is confirmed and final decree enteredwithout notice the Court has inherent power to set aside the decree soentered. In my opinion thc^notice which the Court has to give to theparties cannot be restricted to the day fixed for the consideration of theoriginal scheme of partition proposed by the Commissioner, becausethe original scheme may not be acceptable to the parties and the Commis-sioner may be ordered by the Court to furnish an entirely differentscheme. The order made by the learned District Judge on July 21, 1947,is, in my opinion, wrong and must be set aside.
It seems to me to be unnecessary to send the case back for a consi-deration of the second scheme of partition. I think it is wrong inprinciple to allot to one co-owner a lot which has been improved andpossessed by another co-owner in order to onable him to sell that lot toa person who is not allotted a share in the decree. The policy of thelaw has been to allot to a co-owner the portion which contains his improve-ments whenever it is possible to do so. The only person who objectedto the original scheme of partition was the 29th defendant and hisobjection appears to me to be one which cannot be supported in law.I would set aside the order made on July 21,1947, and direct the DistrictJudge to make an order confirming the original scheme of partition.The appellant will be entitled to the costs of appeal and of the inquiryin the Court below.' *
Gunasekara J.—T agr^.
Appeal allowed.
1 (1919) 6 C. W. H. 137.
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