093-NLR-NLR-V-65-W.-A.-VICTOR-PERERA-Appellant-and-K.-DON-JINADASA-and-9-others-Respondents.pdf
T. S. FERNANDO, J.—Victor Perera v. Jinadaaa
451
1S62 Present: T. S. Fernando, 3., and Abeyesundare, 3.
W. A. VICTOR PERERA, Appellant, and K. DON JIN AD AS Aand 9 others, Respondents
3. C. 588—D. G. Colombo, 8576/L
Partition action—Interlocutory decree—Extent of its finality—Effect of failure toregister lis pendens—Partition Act (Oap. 69), 8. 48 (3).
In partition suit No. 7059 R, who was added as a party, did not take anynotion herself in respeot of the suit and did not participate at the trial. Afterinterlocutory decree was entered she attempted to intervene in the suit inorder to obtain either a dismissal of the suit or an exclusion of Lots 1 and 2 inthe corpus. Her attempt proved unsuccessful. Thereafter she transferredher rights in Lots 1 and 2 to V. P. Relying upon this deed of transfer, V. P.instituted the present action No. 8576 olaiming a declaration of title to Lots 1and 2, citing as defendants all the persons who had been allotted shares in theinterlocutory decree which dealt with Lots 1, 2 and 3 as one corpus. Heclaimed that, inasmuch as the partition action had not been duly registered as alie pendens, his right to a declaration of his title was unaffected by theinterlocutory decree.
Held, that under seotion 48 (3) of the Partition Act the trial Judge was obligedto address his mind to the question of the due registration of the partitionaction as a lis pendens.
Appeal from a judgment of the District Court, Colombo.
H. V. Perera, Q.G., with Neville Wijeratne, for the plaintiff-appellant.
No appearance for any of the defendants-respondents.
Cur. adv. vult.
June 1, 1982. T. S. Fernando, J.—
• This appeal raises the question of the lack of finality of an interlocutorydecree entered in a partition action instituted after the passing of thePartition Act of 1951, section 48 (1) of that Act notwithstanding, wheresuch action has not been duly registered as a lis pendens affecting the landto which the action relates. The question arises in the circumstances setout below.
The plaintiffs in partition action No. 7059/PN of the District Court ofColombo sought a partition of a land referred to as Gorahagaha watteand depicted in plan No. 626 (of 1st August 1954 prepared by V. A. L.Ranasinghe, licensed surveyor) as three allotments marked thereon asLots 1, 2 and 3. At thes urvey, one Mrs. E. Ranasinghe claimed title
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T. 6. FERNANDO, J.~rVick# P«r#o u. Jmv&ua
to Lots 1 and 2. She was thereafter added as the 17th defendant in thecase, but would appear not to have taken any action herself in respect ofthe partition suit nor even to have participated at the trial. Interlocutorydecree was entered on 21st Deoamber 1955 declaring, inter alia, the 8thand 9th dofendants in that case entitled to an undivided 1 /24 share eachof the entire land comprising Lots 1, 2 and 3. The 8th defendant wasfurther declared entitled to certain buildings and a well standing on Lot 1.The 8th and 9th defendants in this partition action, it is not disputed,had long prior to the institution of the action itself parted with theirinterests to one de Silva, the predecessor-in-title of Mrs. Ranasinghe.No appeal was preferred against the interlocutory decree, but Mrs.Ranasinghe attempted on 21st April 1956 to intervene in the partitionaction in order to obtain either a dismissal of the action or an exclusionof Lots 1 and 2 from the corpus dealt with therein. This attempt provedunsuccessful, as did an appeal to the Supreme Court from the order ofthe District Court refusing intervention. The order of the SupremeCourt dismissing Mrs, Ranasinghe’s appeal was made on 19th May 1958,and Mrs. Ranasinghe thereafter, on the 1st June 1958, by deed of transferNo. 360, parted with her rights in Lots 1 and 2 to the appellant before us.Relying upon this deed of transfer, the appellant instituted the presentsuit No. S576/L claiming a declaration of title to Lots 1 and 2 in planNo. 626 referred to above, citing as defendants to his suit the 2nd plaintiffand the 1st to 9th defendants in partition action No. 7059/PN who werethe only persons who had been allotted shares in the interlocutory decreewhich dealt with Lots 1, 2 and 3 as one corpus. The appellant contendedin the District Court that his right to a declaration of bis title was un-affected by the interlocutory decree entered on 21st December 1955 incase No. 7059/PN as, so be claimed, the partition action had not been dulyregistered as a lis pendens affecting the land dealt with therein. Theonly parties who appeared before the District Court to resist the appel-lant’s claim to a declaration of title were the 10th and the 8th defendantswho were respectively the 2nd plaintiff and the 8tb defendant in thepartition action, the latter being a person who has been proved to haveparted with his rights in the land in question to a predecessor-in-title ofMrs. Ranasinghe.
Section 48 (3) of the Partition Act enacts that the interlocutory decreeor the final decree of partition shall not have the final and conclusiveeffect given to it by sub-section (I) of section 48 as against a personwbo, not having been a party to the partition action, claims any suchright, title or interest to or in the land or any portion of the land to whichthe decree relates as is not directly or remotely derived from the decreeif, but only if, he proves that the decree has been entered by a courtwithout competent jurisdiction or that the partition action has not beenduly registered under the Registration of Documents Ordinance as alis pendens affecting such land. The question of the due registrationof the lis pendens was raised as a specific issue on behalf of the appellantand evidence was led thereon; this issue was treated by counsel fox
Ariyapala v. Ariyapala
453
all parties who participated at the trial as being the crucial issue, but thelearned District Judge nevertheless declined to answer it, observing that thequestion of the due registration of the lie pendens “ cannot be canvassedafresh in these proceedings In taking that course the learned judgeappears to have assumed what had indeed to be established, viz., that theappellant himself was bound by the decree in the partition action.
The appellant, it must be emphasized, does not claim any right, titleor interest as being derived directly or even remotely from the decree inthe partition action. On the other hand, not having been a party tothat action, he claims adversely to that decree. In these circumstancesit seems to me that the trial judge was obliged to address his mind a t thetrial to the question of the due registration of the partition action as alis pendens. It is neither satisfactory nor possible for us to essay ananswer to that question (issue 7 at the trial) in this Court. The questionis essentially one for a trial court.
I would set aside the decree dismissing the plaintiff’s action and remitthe proceedings to the District Court so that issue 7 may now be answeredand a decree entered in accordance with that answer. It is permissibleto add that, if that issue is answered in favour of the plaintiff-appellant,it seems to follow that he is not bound by the interlocutory decree of21st December 1955 and that he is entitled to the declaration be hasprayed for.
The 8th and 10th defendants must pay to the plaintiff-appellant thecosts of this appeal.
Abeyesfndeee, J.—I agree.
Decree set aside.