002-SLLR-1988-V2-GUNASEKERA-V.-SOOTHANONA.pdf
GUNASEKERAV.
SOOTHANONACOURT OF APPEAL,
WUETUNGA J. & S.N. SILVA J.
CA NO. 351/81 (F)
D.C.MATUGAMA No.2851/P.
MARCH 02. 1988.
Partition — Commissioner’s scheme of partition — Commissioner's failure tocarry out directions-lnterlocutory decree – Road frontage • Alternative scheme.
Th Commissioner's scheme of partition should not be lightly rejected but in thecase the Commissioner did not allow building No. 17 to the 25th defendant onthe grouitt it would be unfair to do so and apportioned the road frontage.unfairly and gave all the marshy land to the defendants. The alternative schemewft rightly regarded as more fair but while adopting the division proposed by itthe proper cause is for the Judge’ to re-issue the Commission to the
Commissioner with direction to modify his scheme on the lines approved byCourt on the basis of the alternative scheme. The Judge cannot enter finaldecree directly in terms of the alternative scheme.
It is no part of the Commissioner'sirunction to make observation on what thedecree ordains.
Cases referred to
Appuhamy v. Weeratunge (1945) 46 NLR 46
Hendrick v. Gimarahamine {1946) 47 NLR 30APPEAL from judgment of the District Judge. Matugama
5. Gunasekera for plaintiff—appellant
T. S. Medahinna for the defendant — respondent
D. R. P. Gunatilleke with T S. Medahinna for 25th and 30th defendant
—respondents.
Cur. adv.. vult.
May 06.1988WUETUNGA. J.
This is an appeal by the plaintiff from the order of the learnedDistrict Judge dated 31.3.81 accepting the scheme ofpartition submitted by G. Ambepitiya; Surveyor, marked R. 1.in preference to the scheme proposed by the Commissioner.M. J. Setunga, marked Z/P. 1. •
that the eastern portion of the corpus, which is marshy landunsuitable for building purposes, has not been evenlyapportioned. He observes that wheeas the plaintiff has not beengiven any part of the marshy lan|. the entirety of it has beenapportioned among the defendants. He concludes that themanner of partition is distinctly biased in favour of the plaintiffand is contrary to thfc interlocutory decree. He comes to a strongfinding that the plan of partition prepared by the Commissioneris an unfair one and proceeds to reject his scheme.
In comparison, the learned District Judge finds that thescheme of partition depicted in the plan of Surveyor Ambepitiya(R.1) ensures that the land is partitioned in a more equitablemanner, the plaintiff as well as the defendants receiving the goodas well as the marshy portions of the land, according to theirshares. He points out that though some of the parties includingthe plaintiff would get less road frontage than they would beentitled to according to their shares, the scheme provides for afairer distribution of the land among the parties and is inconformity with the interlocutory decree. He, therefore, acceptsthat scheme in preference to that of the Commissioner.
On an examination of the two schemes, it is apparent that thescheme preferred by the learned District Judge is undoubtedlythe better one. He has given cogent reasons for his conclusion^.The alternative scheme further gives the improvements andbuildings to the parties according to the interlocutory decree.
Though a scheme of partition proposed by a Commissionerwould not be lightly rejected (vide Appuhamy v. Weeratunge (Vhaving regard to the particular facts and circumstances of thiscase, we see no reason to interfere with the strong findings ofthejeamed District Judge which are well supported.
Howev&r. it was not open to the learned District Judge to enterfin^J decree of partition in terms of the plan of SurveyorAmbepitiyg (R.1) and his report, as the law requires the court
to confirm with or without modification the scheme of partitionproposed by the Commissioner. As was held in Hendrick v.Gimarahamine (2) where d scheme of partition submitted by aSurveyor is found to be Better than that submitted by theCommissioner in the case, the proper course to adopt would beto remit the scheme to the Commissioner with a direction to himto modify the scheme on the lines prepared by the Surveyor.
I would, therefore, vary that part of the learned District Judge'sorder and direct that the scheme proposed by the Commissionerbe remitted to him requiring the Commissioner to modify hisscheme of partition in the manner suggested by SurveyorAmbepitiya in plan No. 867 marked R. 1.
Subject to this variation, the appeal is dismissed. There will beno costs.
S. N. Silva, J. I agree.
Appeal dismissed subject to variation