025-SLLR-SLLR-2005-V-2-TISSERA-AND-OTHER-vs-LEELEWATHIE-AND-OTHERS.pdf
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Tissera and Others vs. Ledlawathie and Others,
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TISSERA AND OTHERS
vs.LEELAWATHIE AND OTHERS
COURT OF APPEALWIMALACHANDRAJ.
A. 2163/2002
C. NEGOMBO 2243/PJULY 27, 2004
Partition Law, 21 of 1977 – Section 25(3) – Lot claimed exclusively by certainDefendants -No Statement of Claim filed – Claimant absent on the date of trial- Settlement by other parties – Duty of Court to investigate title – In whatcircumstances should a party be permitted to file a Statement of Claim underSection 25(3)?
At the preliminary survey, a certain Lot (1) was exclusively claimed by theDefendant-Petitioner as no other party claimed the said Lot, no Statement ofClaim was filed. On the date of trial, the Defendant-Petitioners were absent,and the parties entered into a settlement, with the Plaintiff being given a portionof Lot 1 – though all the parties conceded that Lot 1 was exclusively possessedby the Defendant Petitioners.
The application under Section 25(3) of the Partition Act by the Defendant
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Petitioners was rejected by the trial Court.
HELD
ft is to be observed that it is only the Defendant Petitioners, who claimedLot 1 in the Preliminary Plan, and had claimed exclusive rights to samebefore the Surveyor, and if they are not before Court, it is not proper forthe Judge to allow a compromise between parties present in Court, soas to permit the Plaintiff to have a portion of Lot 1.
Language of Section 25 is wide enough to provide the Court with widepowers to examine the right, title and interest of each party and hearevidence in support thereof. The Court may permit, under section 25(3),a party in default to file a Statement of Claim if that party establishes thebona fide of his claim, upon such terms as to costs or otherwise as theCourt shall deem fit.
The Court has given its consent to a settlement thereby allowing thePlaintiff to have a portion of Lot 1, this settlement is prejudicial to therights of the Defendant-Petitioners who had claimed Lot 1 exclusively.
AN APPLICATION in Revision from an Order of the District Court of Negombo.
Case Referred to :
1. Cathirina vs. Jamis – 73 NLR 49.
Padmasiri Nanayakkara with Ms Indika de Alwis for 3rd and 4th Defendant
Petitioners.
Sanjeewa Dissanayake for Plaintiff Respondent.
September 10, 2004.
WIMALACHANDRA, J.This is an application in revision from the order dated 15.02.2002 madeby the learned District Judge of Negombo, refusing leave to file statementof claim made by the 3rd and 4(a) defendants in terms of Section 25(3)ofthe Partition Act.
Briefly, the facts relevant to this application as set out in the petition areas follows:
The plaintiff instituted this partition action in the District Court of Negombo
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Tissera and Others vs. Leelawathie and Others, (Wimatechandra, J.)129
to partition the land called and known as “Dewatagalakurunduwatte". TheCourt issued a commission to a surveyor to carry out a preliminary survey.The preliminary plan No. 2843 made by the Commissioner was dulytransmitted to the Court along with a report and a certified copy of his fieldnotes. The lot (1) of the plan 2943 (marked X2) was exclusively claimed bythe 3rd and 4(a) defendants. No other party disputed the claim of the 3rdand 4(a) defendants to the lot (1). Since no claim was made by any otherparty to lot (1) of the preliminary plan ‘X2 the 3rd and 4(a) defendants didnot file a statement of claim. It is to be noted that no party has made anyclaim to lot No. 1 in their statements of claim.
When the case was taken up for trial on 11.09.1998, the plaintiff, 1 st,2nd, 6th, 7th and 8th defendants were present in Court and the 3rd, 4thand 5th defendants were absent and unrepresented. The plaintiff and theother parties who were present in Court reached a compromise in respectof their disputes as to the corpus and settle it among the parties presentbefore any evidence was led. This settlement was effected with regard to1 /3rd of the land. A commission was issued to a surveyor in terms of thesaid settlement to prepare a plan. When the case was called on 04.07.2001,a comprehensive settlement was entered into between the plaintiff and the1st, 2nd, 5th, 6th, 7th, 8th and 9th defendants. The 3rd and the 4(a)defendants were not present. According to this settlement, the lot (2) wasgiven to the 1 st defendant, lot (4) to the 7th, 8th and 9th defendants andthe plaintiff was given Lot 5 and a portion of Lot (1) of the preliminary plan.It is to be noted that, according to the preliminary survey report all theparties conceded that the lot (1) was exclusively possessed by the 3rdand the 4(a) defendants and did not make any claim to it.
It is to be observed that it is only the 3rd and the 4(a) defendants whoclaimed the lot (1) in the preliminary plan. When it appears that the 3rdand the 4(a) defendants who were in possession and had claimed exclusiverights to Lot (1) before the surveyor are not before the Court, it is notproper for the Judge to allow a compromise between the parties present inCourt, so as to permit the plaintiff to have a portion of Lot (1). In my view ,since this action being a partition action it is the duty of the Judge to bringthe parties who had claimed exclusive rights and were in exclusivepossession of lot (1), although the case had reached the trial stage. Thelaw requires the Court to examine the rights of each party. It appears thatwhen the learned Judge made the said order allowing the plaintiff to have aportion of Lot (1), he had not considered the fact that only the 3rd and 4(a)defendants had made their claim to lot (1) before the surveyor which hadbeen in their possession.
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In the impugned order the learned Judge has stated that the 3rd and4(a) defendants failed to give valid reasons to the satisfaction of Court topermit them to file their statement of claim.
In the case of Cathrina Vs. Jamis0) it was held that when a defendantin a partition action fails to file a statement of claim on the due date, anexparte hearing and disposal of his case are not authorised by the law.
At page 51, H. N. G. Fernando, CJ. said :
“The Partition Act, while it entitles a defendant to file a statementof claim and requires him to file a list of documents on which heproposes to rely, does not declare that a party may not prove hisrights at the trial unless he has previously filed a statement ofclaim and a list of documents. If, for instance, a defendant reliessolely on prescription, there is no provision in the (Partition)Ordinance which expressly prevents him from leading evidenceat the trial to establish his right.”
In the instant case the learned Judge has dismissed the 3rd and 4(a)defendants’ application made in terms of Section 25(3) of the PartitionAct, on the ground that they have failed to establish a prima facie right,share or interest in lot (1) of the corpus and that the application of the 3rdand 4(a) defendants was not made bona fide.
However, the language of Section 25 is wide enough to provide theCourt with wide powers to examine the right, title and interest of eachparty and hear and receive evidence in support thereof. In terms of Section25(3), the Court may permit a party in default to file a statement of claim ifthat party establishes the bona fides of his claim and upon such terms asto costs and filing of a statement of claim or otherwise as the Court shalldeem fit.
The learned Judge in his order has failed to assess the fact that the 3rdand 4(a) defendants have been in exclusive possession of the lot (1) of thecorpus and the fact that none of the parties had claimed any right, title orinterest to lot (1). As the circumstances suggest, the 3rd and 4(a)defendants may be having prescriptive rights to lot (1).
Besides, the Court has failed to consider the compromise entered into
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between the plaintiff and the 1 st, 5th, 6th, 7th, 8th and 9th defendants, on
(marked S17), where in the parties agreed to allow the plaintiffto have a portion of lot (1). The Court has given its consent to this settlementthereby allowing the plaintiff to have a portion of lot (1). This settlement isprejudicial to the rights of the 3rd and 4(a).defendants who claim lot (1)exclusively.
In these circumstances I am of the view that the learned Judge shouldhave allowed the 3rd and the 4(a) defendants to file a statement of claimon such terms as to costs etc. which would have allowed them to participatein the trial, at least to establish a prescriptive right.
For these reasons the order of the learned District Judge dated
is set aside and the learned Judge will now entertain thestatement of claim subject to costs etc. in terms of Section 25(3) of thePartition Act.
Application allowed,
Defendant petitioners permitted to file statement of claim.