W. UBERIS et al, Appellants, and M. W. JAYAWARDENE, Respondent

050-NLR-NLR-V-62-W.-UBERIS-et-al-Appellants-and-M.-W.-JAYAWARDENE-Respondent.pdf


BASNAYAKE, C. J.—TTberis v. Jay awar dene
217
Present : Basnayake, C.J., and Pulle, J.
W. TTBERIS et al., Appellants, and M. W. JAYAWAEDENE,
Respondent
S. C. 44—D. C. {Inty.) GaUe, 3465JL
Partition action—Preliminary survey—Duty of surveyor to adhere strictly to terms ofcommission—Amendment of pleadings—Effect on lis pendens—.Civil ProcedureCode, s. 93.
In a partition action, when a com mission is issued to a surveyor to carry out apreliminary survey it is the duty of the surveyor to adhere strictly to its termsand to locate and survey the land he is commissioned to survey. It is not opento him, even with the consent of the parties, to survey a portion only of the landand submit the plan and report of such survey. If he is unable to locate theland he is commissioned to survey, he should so report to the Court and ask forfurther instructions.^
Per BaskavasLb, C.J.—An action in respect of one land cannot be convertedinto an action in respect of another land by an amendment of pleadings.
Per Perms, J.—When a plaint in a partition action is amended so as to substi-tute a new corpus for the one described in the first plaint, a fresh lis pendenswould be necessary.
j/ ppTil AT, from an order of the District Court, Galle.
W. Jayewardene, Q.C., with F. A. Abeywardene and N. JR. M.Daluwatte, for the Defendants-Appellants.
JEtanganathan, with M. T. M. Sivardeen, for the Plaintiff-Respondent.
Cur. adv. vuU.
November 27, 1959. Basnayake, C.J.—
I have had the advantage of reading the judgment prepared by mybrother Pulle,- with which I agree.
I wish to add that this is one of many cases that have come up inappeal in which the surveyor commissioned to carry out a preliminarysurvey in proceedings under the law relating to partition has failed toappreciate the functions entrusted to him. It is the duty of a surveyorto whom a commission is issued to adhere strictly to its terms and locateand survey the land he is commissioned to survey. It is not open to himto survey any land pointed out by one or more of the parties and prepareand submit .to the court the plan and report of such survey. If he isunable to locate the land he is commissioned to survey, he should so reportto the court and ask for further instructions.
10LXTT
J. N. U 12913—1,995 (10/60)
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FULLE, J.—Uberis v. Jayawardene
Another matter I wish to stress is that Judges of first instance shouldgive their personal attention to the formulation of the terms of the com-mission issued in proceedings for the partition of land and not leave it tobe done mechanically by a member of the clerical staff attached to thecourt. A commission is an instrument issued by the court and shouldreceive its careful consideration and specify in detail what the surveyoris required to do. The instant case is a good illustration of the neglectof that duty by the Judge.
The amendment of pleadings is a matter for the court and should beeffected in the manner prescribed by section 93 of the Civil ProcedureCode- An option jn respect of one land cannot be converted into anaction in respect of another land by an amendment of pleadings. J canfind no authority in the Code for the following order of the trial Judge :
Take case off trial roll. Plaintiff to file amended plaint and all
papers in respect of the whole land depicted in plan 1204. *'
I wish also to draw the attention of-Judges of first instance to the needfor a strict observance of the provisons of section 93 of the Civil ProcedureCode.
PUTiIiE, J.
The action out of which this appeal arises was instituted as far back as6th February, 1948, to partition a land called ICudawadugewatta. On3rd August, 1953, a preliminary decree was entered declaring the plaintiffand a number of defendants entitled to various shares in a land of theextent 0A. IP. 39P. depicted in Plan No. 2493 of 29th May, 1948. Thedecree further ordered that the land be partitioned. It is sufficient forthe present to note that the 11th defendant, Manawaduge Babysingho,to whom the plaintiff had allotted a share in the plaint and in tne twoamended plaints dated respectively 2.0th April, 1948, and 23rd November,1949, was absent at the trial prior to the preliminary decree being entered.The decree, however, stated that out of the plantation he was entitled to0 poconut trees and out of the buildings to a brick built copra shed.
A few days after the preliminary decree was entered, namely, on the18th August, 1953, the 10 appellants before us who are described in theCaption as 59th to 68th defendants filed a statement of claim as inter-venienfs. They alleged that the land decreed to be partitioned wasP&rt of a. Jarge.r land of the extent of 1 A. OR. 12 6/10P. and asked tnat theybe declared entitled to certain shares in the larger land. This larger landig shown, ip Plan No. 1204 of 3rd JVfay, 1954, and includes a poption markeda§ lot D.. They alsp took up the position that the registration of l ispendens w&§ b.ad inasmuch as it was in respect of a land called KLudawadu-gawatta .of the extent of 1A. OR. 12 6/10P and not of a divided portion 01it as depicted in plan No. 2493 referred to fir the preliminary decree.The intervention on the part of the appellants brought in numerous other
PXJXjLE, J.—XTberia v. Jayaiaardene
219
parties to the case who filed various statements. Of the latter mention .may be made of a statement dated 29th March, 1955, of the 76th and 79thto 83rd defendants. According to them the portion, namely, lot D inthe later plan No. 1204 which the appellants claimed ought to have beenincluded as a part of the corpus to be partitioned was a distinct entity.The 76th and 79th to 83rd defendants also alleged that the 11th defendantwho had by default failed to establish his claim had “ put forward hismother, sisters and brothers, the 59th to 68th defendants to re-open andrevise these proceedings in this case which went against the said 11thdefendant ”. It would appear from a further statement filed by the 76thand 79th to 83rd defendants that lot D is now the subject matter of anotherpartition case No. P1352 in the District Court of Galle.>
This appeal is concerned with the legality of two orders made by thelearned District Judge in the course of an enquiry into the application ofthe appellants to intervene in the action. The first was made on 5thDecember, 1956, and the second on 25th February, 1957.
On 5th December, 1956, counsel for the plaintiff informed the courtthat his client was “ willing to partition in this case the whole land de-picted in Plan 1204 From the point of view of the appellants the newattitude of the plaintiff procured for them what they desired by the inter-vention, namely, to obtain a declaration of title of the parties to a largerland. Counsel representing other parties, particularly the 76th and 79thto 83rd defendants, are recorded to have said nothing more than that theymoved for the costs of the day.
The order was—
“ Take case off trial roll. Plaintiff to file amended plaint and allpapers in respect of the whole land depicted in plan 1204. ”
After dealing with costs the Judge said,
“ Amended plaint and other papers on 18.2.57. ”
The case took a new development before 18th February, 1957. On 9thJanuary, 1957, the Proctor for the plaintiff filed a motion stating that hisclient was not willing to partition the whole land and desired ec to proceedwith the enquiry relating to the intervention filed by the 59th to 68thdefendants. ” This motion came up for enquiry on 25th February, 1957,and the order made thereon is the subject of the present appeal.
The submission on behalf of the plaintiff was that there was a prelimi-nary decree of record and the consent which the plaintiff gave on 5thDecember, 1956, to partition the larger land as depicted in Plan No. 1204was inoperative. The Proctor for the 76th and 79th to 83rd defendantssubmitted that they had filed a statement opposing» the claim of theappellants to bring lot D in Plan 1204 into the corpus of the suit and thata separate action to partition lot D had already been filed. He supported
220
PT7I.LE, J.—TTberis if. Jayavxtrdene
the plaintiff’s application. On behalf of the appellants it was submittedthat the plaintiff should not be allowed to resile from the position he hadtaken up on 6th December, 1956, and that the order of the court “ Takecase off the trial roll. Plaintiff to file amended plaint ” operated as resjudicata. The appellants also took up the position that the orderamounted to a vacating of the preliminary decree of 3rd August,
The order which is the subject of the present appeal reads :
“ All parties who come before Court should be given full freedom toput forward their case in the way they choose to«place it. They must notbe penalised for changing their minds, but such a change should notentail hardship or added expenditure to those who are opposed to them.
“ X fix the case for in.quiry into the intervention. ”
This was followed by an order condemning the plaintiff to pay certain* ’ costs.
In their prayer in the petition of appeal the appellants ask that theJudge’s order of 25th February, 1957, be set aside and the order of 5thDecember, 1956, restored. The grounds urged are that the earlier orderoperated as “ res judicata ”, that the consent given by the plaintiff on6th December
“ amounted to (a) setting aside the interlocutory decree already enteredand (6) judgment by consent to bring in the whole land depicted in Plan1204 ”, and that it was not open to the plaintiff to resile from theposition he had taken up on 5th December.
It is sad to reflect that proceedings which commenced in 1948 to parti-tion a land were in 1957 in a srate of confusion. Had the court and theparties, especially the plaintiff, kept a watchful eye on the early stages ofthe case and realised the need for strict proof of the title to the corpuswith reference fp the boundaries set out in the plaint, the complicationsthat have now arisen might have been avoided. In the orginal plaintof 6th February, 1948, the corpus is described as Kudawadugewatta
“bounded on the North by Patabendigewatta and Ldndemulawatta,East by Patabendigewatta and Wadugewatta, South by High Road andWest by Talgahawatta and containing in extent 1A. OR. 12 6/10 perches.'’
An undated commission was issued in 1948 for the suqyey of the land ofthe description I have quoted to which a return was made on 29th May,1948, with Plan No. 2493 and a report. A scrutiny of the plan and aperusal of the report would have revealed the following irregularities :—
(а)The surveyor showed on the plan a corpus not of the extent1A. OR. 12 6/10P. but one of 1R. 39P.
(б)The western boundary of the land he was required to survey wasstated in the commission to be “ Talgahawatta ”. The plan gives the
; western boundary as the “other portion of this land ” which in the context- is not “ Talgahawatta ” but “ Kudawadugewatta ”,
P DLLE, J-—TJberia v. Jaycnoardene
221
(c) According to the report the 11th defendant had informed thesurveyor that what he had surveyed was only a portion, “ but the plaintiffstated and requested me to survey only this portion as he has filed actionfor this portion only as the owners of the other portion are not madeparties because they come under a different pedigree. The parties wereagreed and admitted that this portion is possessed separately
In regard to (c) above it is surprising that a surveyor who received amandate from court without carrying out its terms allowed himself to bedictated to by a party to the litigation. Whether a portion of a largercorpus has become a separate entity is not to be.determined in a partitionaction by consent of parties intimated to a surveyor. Surely it does notfollow that a portion of land possessed separately becomes ipso facto adistinct corpus for the purpose of an action under the PartitionOrdinance. This case itself reveals the danger of acting on such apres umption.
There being a duty cast on the -court to insist on strict proof of title ina partition suit the failure on its part to understand the implications ofPlan No. 2493 in the light of the plaint and the Us pendens is lamentable.Once the plan and report were received it should have been manifest thatto proceed further without a fresh /-»'<? g>e‘'nde,nj* and an amendment of theplaint setting out without ambiguity the metes and bounds and extentof the new corpus would involve the risk of making a decree valueless.Vide S. G. Kanagasabai et al. v. M. VelupiZlai et al. 1
The plaint was undoubtedly amended a second time on the 23rdNovember, 1949, but the amendment does not tell us with precision thata new corpus has been substituted for the one described in the firstplaint and in the first amended plaint.
Paragraph 12 of the amended plaint reads,
** The plaintiff seeks to partition the land called a defined half portionof ELudawadugewatta situated at Pitiwella within the jurisdiction of thisCourt and bounded on the North by Patabendigewatta and Lindamula-watta East by Patabendigewatta Wadugewatta South by High Road andWest by Talgahawatta and containing in extent 1A. OR. 12 6/10perches. ”
This description does not tally with the one in the lis pendent.That does not speak of a “ defined half portion
It seems to me that no useful purpose would be served in allowingthe action to continue. Mr. Ranganathan for the plaintiff argues thata decision, on its merits, has still not been given on the claim of the inter-,verting appellants and that no harm will be done, to either side if, in termsof the order of 25th February, 1957, appealed from, the court holds aninquiry into the intervention. It seems to me that if the court holds with:the appellants that the proper corpus is the one depicted in Plan No. 1204,this would in effect mean starting all over again a case which the plaintiff
1 {1952) 54 N. L. R. 241.
2*J. N. B 12913 (10/60)
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SAJNSONT, J.—Leon Singho v. Attorney-General
had abandoned. This might as well be' done in a new suit. If theappellants fail, then the plaintiff opens himself to the attack that thelis pendens is bad and that grave irregularities have occurred by reasonof his altering the scope of the action by praying for a partition of onecorpus and getting a preliminary decree to partition another. Besides,there is pending a separate suit for the partition of lot D in Plan No. 1204the final decision in which may settle the major controversies arising inthe present case.
In my opinion this court acting in revision should set aside the preli-minary decree and all the orders made on 5th December, 1956, and 25thFebruary, 1957, and dismiss the plaintiff’s action, with liberty to file afresh action, if so advised. In all the circumstances each party shouldbear his own costs of appeal. In entering up a decree dismissing theaction, the learned District Judge should award such costs to the partiesin his discretion as the justice of the case may require.
Order set aside.