VICTOR AND ANOTHER v. CYRIL DE SILVA

003-SLLR-SLLR-1998-1-VICTOR-AND-ANOTHER-v.-CYRIL-DE-SILVA.pdf


CA
Victor and Another v. Cyril de Silva
41
VICTOR AND ANOTHER
v.CYRIL DE SILVA
COURT OF APPEALISMAIL, J„
WEERASURIYA, J.
A. 563/89
C. GALLE 9017/LAUGUST 26, 1997.
Rei Vindicatio Action – Partition Ordinance 10 of 1863 – Party added subsequentto entering of Final Decree – Decree amended – Conclusive effect of S. 9 whendecree is considered in a seperate action – Evaluation of evidence – S. 187 CivilProcedure Code – Art. 138 (1) Constitution.
The plaintiff-respondent instituted action praying for a declaration of title and forthe ejectment of the defendants-appellants.
It was the position of the plaintiff-respondent that lot 6 was allotted to his motherin an earlier Partition case and that she was added as a party subsequent tothe entering of the final decree, and the final decree was amended, allotting lot6 to his mother, who had obtained rights prior to the Partition Action from the7th defendant, who had originally been allotted Lot 6. The District Court held withthe plaintiff.
On Appeal
Held:
Failure to investigate title which could be a good ground for setting asidea decree on an appeal in the same action would not detract from theconclusive effect of S. 9 of the Partition Ordinance No. 10 of 1863 whenthe decree is being considered in a seperate action.
On a parity of reasoning the fact that lack of jurisdiction to amend a finaldecree may be sufficient ground for a Appellate Court acting in the samecase to set aside decree, does not detract from the conclusive effect ofS. 9 when the decree is being considered in an another case. 3
(3)The question whether the District Judge acted in excess of jurisdiction inamending the Final Decree should have been canvassed by the partiesaffected by way of an appeal to the Supreme Court in the same action.
42
Sri Lanka Law Reports
(1998) 1 Sri L.R.
Per Weerasuriya, J.
"The learned District Judge was in obvious error when she failed to evaluatethe evidence, in terms of S. 187, Civil Procedure Code, the failure to complywith the imperative provisions of S. 187, has not substantially prejudicedthe rights of the defendant-appellants or has not occasioned a failure ofjustice to the defendants-appellants, as it is evident on a close examinationof the totality of the evidence that the learned District Judge is correctin pronouncing judgment in favour of the plaintiff-respondent'.
APPEAL from judgment of the District Court of Galle.
Cases referred to:
Sirinivasa Them v. Sudassi Them – 63 NLR 31.
Mohamedaley Adamjee v. Hadad Sadeen – 58 NLR 217 (PC).
Faisz Musthapa, PC with Hemaslri Wlthanachchi for defendants-appellants.
M. S. M. Hassan with Ms. S. Hassan for plaintiff-respondent.
Cur. adv. vult
September 29, 1997WEERASURIYA, J.
The plaintiff-respondent filed action in the District Court of Galleagainst the defendants-appellants praying for a declaration of title tothe land called lot 6 of Kumbalhelawatta alias Hambanagewattamorefully described in paragraph 2 of the plaint, for the ejectmentof the defendants-appellants and damages.
The defendants-appellants filed answer denying plaintiff-respond-ent's title to the land and prayed for dismissal of the action with adeclaration that the 2nd defendant-appellant is entitled to the land.
At the commencement of the trial on 21.08.84, two admissions wererecorded, namely –
that the corpus of this action is the land depicted in planNo. 1542 of 18.11.81 made by P. R. Ambawatta, licensed Surveyor;and
that the corpus formed a portion of the land of the subjectmatter of the partition action bearing No. 31854 of the District Courtof Galle.
CA
Victor and Another v. Cyril de Silva (Weerasuriya, J.)
43
At the trial which proceeded on 13 issues, the plaintiff-respondenttestified that his mother Elgi Wijesekera was allotted lot 6 of the landcalled Kumbalhelawatta alias Hambanagewatta in the final decree inthe partition action bearing No. 31854 of the District Court of Galleand she transferred the same to him on 30.01.66 by deed No. 490marked 'ot 2'. However, it was revealed that Elgi Wijesekera who wasthe 10th defendant in the aforesaid partition action was added as aparty subsequent to the entering of the final decree on filing a petitionand affidavit following her rights to the land obtained prior to thepartition action from Singho Appu, the 7th defendant who had originallybeen allotted lot 6 of the aforesaid land. The final decree, petitionand affidavit of Elgi Wijesekera and the order of the District Judgeamending the final decree were produced marked 'oj 1A', 'oz 1B'©i 1C and 'oi 11', respectively.
Learned counsel for the defendants-appellants submitted that theDistrict Judge had no jurisdiction to amend the final decree by allottinglot 6 of the aforesaid land to Elgi Wijesekera, 10th defendant, whichwas originally allotted to Singho Appu the 7th defendant. He contendedthat in the circumstances, that no rights would flow from the saiddecree as it was a nullity, being an act performed in excess ofjurisdiction. He cited the case of Sirinivasa Thero v. Sudassi There/11in support of his contention, where it was observed at page 33 thatwhen a court makes an order without jurisdiction, it has inherent powerto set it aside and it is not necessary to appeal from such an orderwhich is a nullity.
It is to be observed that section 9 of the Partition OrdinanceNo. 10 of 1863, in terms of which the impugned final decree wasentered provided that –
"the decree for partition or sale given as hereinbefore providedshall be good and conclusive against all persons whatsoever,whatever right or title they have or claim to have in the same
property and shall be good and sufficient evidence
of such partition and sale and of the title of parties to suchshares or interests as have been awarded in severalty."
However, in Mohamedaley Adamjee v. Hadad Sadeerf2> Privy Councilheld that –
44
Sri Lanka Law Reports
(1998) 1 Sri LR.
"a decree entered under section 8 or section 9 of the PartitionOrdinance is conclusive against all persons whomsoever anda person owning an interest in the land partitioned whose titleeven by fraudulent collusion between the parties had beenconcealed from the court in the partition proceedings is notentitled on that ground to have the decree set aside, his onlyremedy being an action for damages.''
It was further held that –
"although a partition decree entered without any investigationof title does not have the conclusive effect provided by section9 of the Partition Ordinance, a decree entered after a defectiveor inadequate investigation of title is conclusive as long as ithas not been set aside on an appeal in the same action."
It is significant to note that failure to investigate the title whichcould be a good ground for setting aside a decree on an appeal inthe same action, would not detract from the conclusive effect ofsection 9 of the Partition Ordinance, No. 10 of 1863 when the decreeis being considered in a separate action.
Learned counsel for the defendants-appellants laid emphasis onthe fact that final decree has been amended on the basis of the claimmade by Elgi Wijesekera after it was entered. However, it was relevantto note that on the application of Elgi Wijesekera, the 7th defendantSingho Appu was noticed to appear in court, and on his failure toappear on notice being served, District Judge allowed the application(Vide 'o* 11'). It is to be noted that District Judge had sent a reportto the Supreme Court explaining the steps taken to amend the decreepresumably on a petition by the 7th defendant as evident from thedocument marked 1F’. The question whether the District Judgeacted in excess of his jurisdiction in amending the final decree, shouldhave been canvassed by the parties affected by way of an appealto the Supreme Court in the same action. On a parity of reasoningthe fact that lack of jurisdiction to amend a final decree may besufficient ground for an Appellate Court, acting in the same case toset aside a decree, does not detract from the conclusive effect ofsection 9 of the Partition Ordinance, No. 10 of 1863, when the decreeis being considered in another case. It is relevant to state therefore,that the defendant-appellant at this stage is debarred in law fromassailing the conclusive nature of the partition decree marked 'ex 1A‘.
CAVictor and Another v. Cyril de Silva (Weerasuriya, J.)45
However, the main submission of learned counsel for the defend-ants-appellants is that the learned District Judge has failed to evaluatethe evidence in her judgment which only contains a narration of theevidence of the witnesses who have given evidence. Nevertheless,the learned District Judge has briefly referred to an item of evidenceof the 1st defendant-appellant touching on the issue of prescription.This relates to an alleged complaint by the plaintiff-respondent againstthe 1st defendant-appellant for plucking coconut on which he wascharged. Learned District Judge has stated that the assertion of the1 st defendant-appellant that he was discharged from proceedings hasnot been proved as he has failed to produce the case record or togive even the number of the case nor has he mentioned this in hisanswer. This observation of the learned District Judge is a manifestexercise by her of the test of probability in regard to the version of1st defendant-appellant on the issue of prescription. Further, thelearned District Judge has observed that she is proceeding to answerthe issues, taking into consideration the evidence and submissionsmade. This pronouncement of the learned District Judge could be aclear indication of an awareness of her duty to deal with the evidenceplaced before her by the parties to the action.
The plaintiff-respondent has testified that his mother Elgi Wijesekerahaving being allotted lot 6 of the land called Kumbalhelawatta aliasHambanagewatta transferred the same to him on a deed marked'oj 2‘. As against this evidence, there was no material placed bythe defendants-appellants in regard to the title of Singho Appu, fromwhose wife and children, 2nd defendant-appellant is purported to havepurchased their interests by deeds marked '1 S V and ‘1 S 2'. Thus,the defendants-appellants have failed to prove a valid paper title tothis land.
Nevertheless, the 1st defendant-appellant maintained in his evi-dence, that he was in possession of this land for a period of 30 yearswhich he modified later by stating that his mother who was the sisterof Elgi Wijesekera was in possession of this land till her death in1979. It was revealed that this land was used as a family burial groundfrom the year 1945 where the father, mother, sister named Banduwathieand brother named Sunny of the plaintiff-respondent were buried.Surveyor Ambawatta who surveyed this land on a commission hasshown in his plan marked 'X', three tombs marked A, B and C whichwere the tombs of mother, sister and father respectively of the plaintiff-respondent.
46
Sri Lanka Law Reports
(1998) 1 Sri LR.
On this uncontroverted testimony of the plaintiff-respondent, itwould be clear that this land has been possessed by the plaintiff-respondent and his predecessors in title well beyond a period of 30years.
It is apparent that the learned District Judge has not engaged inan exhaustive analysis of the evidence led at the trial. Nevertheless,on the basis of overwhelming evidence led on behalf of the plaintiff-respondent and the evidence of Piyasena Silva, who was called bythe defendants-appellants, the conclusion is irresistible that a judgmentfor the plaintiff-respondent, as prayed for in the plaint is inevitable.
Article 138 (1) of the Constitution which deals with the jurisdictionof the Court of Appeal is on the following terms:
“138 (1) – The Court of Appeal shall have and exercise subjectto the provisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be committed by any court of first instance . . .
Provided that no judgment, decree or order of any court shallbe reversed or varied on account of any error, defect or irregularitywhich has not prejudiced the substantial rights of the parties oroccasioned a failure of justice".
It is evident on a close examination of the totality of the evidencethat the District Judge is correct in pronouncing a judgment in favourof the plaintiff-respondent as prayed for in the plaint. However, thelearned District Judge was in obvious error when she failed to evaluatethe evidence in terms of section 187 of the Civil Procedure Code.The failure of the learned District Judge to comply with the imperativeprovisions of section 187 of the Civil Procedure Code has not sub-stantially prejudiced the rights of the defendants-appellants, or hasnot occasioned a failure of justice to the defendants-appellants.
In the circumstances, we affirm the judgment and the decree ofthe learned District Judge and dismiss this appeal with costs.
ISMAIL, J. – I agree.
Appeal dismissed.