001-SLLR-SLLR-2001-V-2-RICHARD-AND-ANOTHER-v.-SEIBEL-NONA-AND-OTHERS.pdf
RICHARD AND ANOTHER
v.SEIBEL NONA AND OTHERS
COURT OF APPEAL.
JAYASINGHE J.
JAYAWICKREMAJ.
CA 761/97
D.C. GAMPAHA 28978/P12™ NOVEMBER 199910™ JANUARY, 20004™ and 14™ JULY, 20005™ OCTOBER 20003rd NOVEMBER 2000
Partition Law – S. 16-19, S.48(l) (a), S.49 – Settlement – Intervention -Refusal – Revision – Restitutio – in – Intergrum – Can an outsider movecourt? – Finality of Interlocutory decree – Instances where it could be setaside – Identity of corpus – court accepting a larger land than the land tobe partitioned – Investigation of title.
The Interlocutory Decree was entered by way of settlement. TheIntervenient Petitioners who were not parties made an application tointervene in the action, which was refused. Being aggrieved they movedin Revision and / or in Restitutio – in – Integrum.
It was contended that as the Petitioners were not parties to the PartitionAction they cannot move in Revision or seek Restitutio – in – Integrum andthat as the Interlocutory Decree is final and conclusive it is not open forthe Petitioners to invite Court to exercise the extra ordinary revisionaiyjurisdiction due to their own conduct. It was further contended that theonly remedy available at this stage is to institute an action under
S.49 for damages.
Held:The parties were not able to identify the land to be partitioned. Courthas accepted as the land to be partitioned a larger land than the landsought to be partitioned – as given in the plaint, court has failed to decideon the corpus.
Coin! has completely acted in violation of the provisions of thePartition Law and has accepted by way of a settlement, the evidence of
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the 1st Defendant, without investigating into the title of all the parties asrequired by the Partition Law. A partition decree cannot be entered bysettlement, it is the duty of the Judge to fully investigate into the title tothe land and shares.
Per Jayawickrema J.,
"In the event of any party seeking to have a larger land to be made thesubject matter of the action, court shall specify the party to the actionto file in Court an application for the registration of the action as alis pendens affecting such larger land and the Court shall proceedwith the action as though it has been instituted in respect ofsuch larger land after taking necessary steps under S. 16, S. 17, C.S.18, S. 29.”
(Ill) In terms of the proviso to S. 48(3) the powers of the Court of Appealby way of Revision and restitutio in integrum shall not be affected.
AN APPLICATION in Revision and/or Restitutio in integrum.
Cases referred to:
Manchinahamy as Muniweera – 52 NLR 409
Fernando us Perera – 1 Tamb. 71
Juan Perera vs Stephen Fernando – 3 Brownes 5
Caldera vs Santiagopillai – 22 NLR 155
Thambtrajah vs Sinnama – 36 NLR 442
Samarakoon vs Jayawardane 12 NLR 316
Fernando vs Shewakram – 20 NLR 27
Urrwna Sheefer vs Colombo Municipal Council – 36 NLR 38
Kanagasabai vs VelupUlai – 54 NLR 241
Jayasekera vs Perera – 26 NLR 198
Amarasuriya Estates Ltd., vs Ratnayake – 59 NLR 476
Banda vs Weerasekara – 23 NLR 157
Eliyathambi vs Kanapathy Veeragathie – 35 NLR 211
Cook vs Banduldhamy – 4 Tamb. 63
Banda vs Weerasekera – 23 NLR 157
Fernando vs. Mohammadu Saibu – 3 NLR 321
Visvalingam vs Thampoo – 5 Tam. 49
SUva vs Paulu – 4 NLR 179
Golagoda vs Mohideen – 40 NLR 92
Uberis vs Jayawardena – 62 NLR 217
Bininda vs Sediris singho – 64 NLR 201
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Richard and Another v. Siebel Nona and Others
(Jayawickrema, J.)
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P. A.D. Samarasekera, P.C., with G.L. Geethanandafor the Intervenient-Petitioner-Petitioners
Ranjan Suwandaratne for Plaintiff Respondent.
N.R.M. Daluwatta, P.C with P. Bandara for 9th Defendant Respondent.
Cur. adv. visit.
December 12, 2000.
JAYAWICKREMA J.This is an application in Revision and/or RestitutioIn Integrum to set aside the proceedings and the order dated12/12/1996 and also to set aside all proceedings after thepreliminary survey and direct the District Court to add thepetitioners as necessary parties and permit them to file theirstatements of clajin and then proceed to hear and determinethe action.
According to the judgment of the learned District Judgedated 22/2/1994, interlocutory decree was entered in thisPartition Action by way of a settlement between the Plaintiffand the 9th Defendant. Only the Plaintiff and the 9th Defendantwere present and were represented by counsel when theyagreed to enter decree by way of a settlement and the 1stDefendant, the daughter of the Plaintiff gave evidence and shewas the only witness in this Action. According to an admissionrecorded on that date the land to be partitioned was Lot 01 and02 in Plan No 41/1990 dated 24/5/90. Made by surveyor,K.T.P.R. Ahugammana. Thereafter the Learned District Judge,who succeeded the judge who delivered the judgment on22/2/1994 amended the interlocutory decree on 12/12/1996in accordance with another settlement entered into betweenthe Plaintiff, the 7th defendant and the 9th defendant.
The Intervenient-Petitioner-Petitioners were not parties tothis Partition Action. The Petitioners made an application tointervene in the action and the matter was inquired into on25/7/1994 and thereafter the Court made order on16/8/1995 refusing the application for intervention.
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The learned President's Counsel for the Intervenient -Petitioner -Petitioners submitted that the Co-owners hadamalgamated a number of contiguous lands and amicablydivided it Into several separate lots and possessed them asdistinct and divided lots, (vide documents Al, A2, A3, A4 andA5) and one party had even obtained a partition decree in 1961from District Court, Gampaha in case No. 9319/P,(vide A5) in respect of one such without any claim or objectionfrom any others.
The learned President's Counsel further contendedthat the Petitioners were not parties to this action in theDistrict Court nor were they represented, and the Petitionersapplication to be added as parties was rightly refused as theremedy was to seek relief form the Court of Appeal.
The learned President’s Counsel for the 9th Defendant -Respondent submitted that as the petitioners were not partiesto the Partition Action, they cannot move in revision on theprinciple that revision will lie only at the instance of a party toan action and that it is an extraordinary remedy given to aparty to an action and the relief is given only at the discretionof this Court and that restitutio – in – intergrum is applicableonly to a party to a legal proceedings, (vide Mcmchinahamy vs.Muniweeraf11.
He further submitted that the material the petition refersto in page 2 and 3 of their written submissions were not beforethe learned Trial Judge and therefore the learned Trial Judgecannot be faulted for not considering material which were notbefore him. The learned President's Counsel furthercontended that if this court accept the submission of theIntervenient-Petitioner-Petitioners, that the Plaintiffs actionbe dismissed as the corpus in plan 41 /96 (A 10) marked as "X"at the trial is not the land sought to be partitioned. He furthercontended that the Plaintiff cannot in the same PartitionAction seek to partition a particular corpus, when thatjudgment is set aside by a Superior Court, and seek to partitiona different corpus at a 2nd trial in the same action.
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Richard and Another v. Siebel Nona and Others
(Jayawickrema, J.)
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The learned Counsel for the plaintiff-respondentssubmitted that as the interlocutory decree has been alreadyentered, it has a final and conclusive effect in terms of section48 (1) of the Partition Law. He further submitted that it wasnot open for the Petitioner to invite this Court to exercise theextra-ordinary revisionaiy jurisdiction of this Court due totheir own conduct.
He further contended that in the circumstances that it wasnot open for the Petitioner to allege that they were unaware ofthe said Partition Action for a period of about 10 years andtherefore the Petitioners cannot in law at this belated stageseek to set aside the proceedings and the interlocutory decreeduly entered in the said Partition Action and the only remedyat this stage available to the Petitioner is to institute an actionunder section 4SNsf the Partition Law for damages.
Final decrees in partition actions have been set asideby the Supreme Court where imperative provisions of thePartition Ordinance have not been complied with.
In Fernando vs. Perera!2) a final decree was set aside as ithad been entered of consent, (vide Juan Perera vs. StephenFernando13) Caldera vs. Santiagopillai!4) Thambirajah vs.Sinnamma151).
Where the record of the case discloses a number of seriousirregularities, the decree is not one "given as hereinbeforeprovided" (vide: Samarakoon vs. Jayaivardenem, Fernando vs.Shewakrarri71, Umma Sheefa vs. Colombo Municipal Councit8’).
It was held by a full Bench in Kanagasabai vs. VelupiUaH9>that the failure to register duly a lis pendens in a partitionaction deprives the decree in the action of the "conclusiveeffect" by reason of the fact that it is not a decree entered "ashereinbefore provided”.
In Jayasekera vs. Perera!101 the land referred to in thepartition action and in respect of which the parties proved their
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title and obtained an interlocutory decree was not the landdepicted in the survey plan referred to in the final decree. It washeld that the final decree cannot be regarded as a decree "givenas hereinbefore provided", in section 9 of the PartitionOrdinance (vide Amarasuriya Estate Ltd. vs. Ratnayakef111).
The Plaintiff filed this Partition Action to partition a landcalled Kelagahawatta in extent of 3 acres 3 roods as describedin the schedule to the plaint dated 23/6/1986.
The Court issued a commission to survey the land andsurveyor R.M. Ranasinghe tendered his preliminary PlanNo. 257 dated 3/8/1988, according to which the land wasin extent of 2 acres and 28 perches. The Plaintiff beingnot satisfied by the preliminary plan moved for a secondCommission on the basis that only a portion of the land wassurveyed and also that the surveyor had not correctly recordedwhat transpired at the survey. Consequently, a Commissionwas issued to another surveyor by the name of K.T.P.R.Ahugammana who tendered his Plan No. 41/90 dated24/5/1990 (A20 & A21), according to which the extent of theland was 4 acres 1 rood 18.908 perches which is a larger land,than the land sought to be partitioned as described in theschedule to the plaint.
The 1st surveyor in his report states that the land issituated in another village to that of the village named in thecommission and that the parties present were not able to showthe boundaries given in the schedule to the plaint. The relevantparagraph ‘XI’ of the report of the survey marked as A17 is asfollows:-
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Richard and Another v. Siebel Nona and Others
(Jayawickrerna, J.)
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When one take into consideration the above facts, I findthat the learned District Judge has failed to decide on thecorpus which is to be the subject matter of this partition actionand has not investigated the title to the land. The learnedDistrict Judge has completely acted in violation of theprovisions of the Partition Law and has accepted by way of asettlement, the evidence of the 1st Defendant and he hasdelivered judgment without investigating into the title of all the
In view of the above statements of the two surveyors it isclear that the parties were not able to identify the land to bepartitioned.
In view of the above facts, the Court is of the view that theland which the learned District Judge has accepted as the landto be partitioned is a land which is larger than land sought tobe partitioned by the Plaintiff in his schedule to the plaint.
On 22/2/1994 the learned District Judge pronouncedjudgment by way of a settlement and evidence was led on theconditions of settlement agreed upon between the Plaintiff andthe 9th Defendant. Even in the interlocutory decree it is statedthat the decree was entered in accordance with the terms ofsettlement. The relevant portion of the interlocutory decree isas follows
The second surveyor in his report states that he is unableto state definitely whether the land he surveyed is the sameland which is described in the schedule to the plaint.The relevant paragraph 5 of his report marked as A21 is asfollows:-
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parties as required by the Partition Law. It is the duty of a judgein a partition action to investigate into the title and clearly statein the judgment, the shares of each of the parties entitled tofrom the corpus.
In Banda vs. Weerasekera1121 Bertram C.J. held that '‘thecourt regards with strong disapproval any attempt to usethe Partition Ordinance for the purpose of dealing in anaction with distinctportions ofland in which shareholdersand the interests are not the same".
It was held by Garvin S.P.J. – in Eliyaiambi vs. KanapathyVeeragathie(13) that it is not contemplated by the provisions ofthe Partition Ordinance that any more than one land will bepartitioned in one proceeding.
The practice in Partition Actions has been to disapproveof any attempt to include as subject matters in one actiondistinct portion of land in which the shareholders and inter-ests are not the same (vide Cook us. Bandulaha]m/14) Banda vs.Weerasekera1151).
In the instant case some portions of land shown in PlanNo. 41/1990 were the subject matter in an earlier PartitionAction.
The duty of a j udge in a Partition Action is to ascertain whothe actual owners of the land are, and to decide the othermatters. This duty is a personal one. It is an imperative dutyin all Partition Actions that the court should examine the titleof each party to the action. It was held in Fernando vs.Mohammadu Saibu1161 that "the Court must in all cases ofpartition carefully investigate all titles, and must refuse tomake title on admissions or insufficient proof."
It was held in Visuvalingam vs. Thampoof171 that a parti-tion decree cannot be entered by settlement even after someevidence, and that in partition suits, it is the duty of the judge
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Richard and Another v. Siebel Nona and Others
(Jayawickrema, J.)
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to fully investigate into the title to the land and shares. In thatcase Grenier, J. Said 'The District Judge instead of proceedingwith the trial of the case and investigating into the tide of theparties, allowed them to settle the case. I find on reference tothe proceedings had before him on that date that at a certainpoint of the examination of the plaintiff a settlement wasproposed and that later a paper of settlement was put in andan interlocutory decree entered up according to the termsembodied therein. I need hardly remark that this was highlyirregular, and in the teeth of the plain requirements of thePartition Ordinance by which the duty is cast on the judge toinvestigate into tt0tttle of the parties as carefully as he can inview of the far reaching consequences of a decree in a partitionaction."
In partition suits the court ought not to proceed onadmission, but must require evidence in support of the title ofall the parties and allot to no one a share except on good proof(vide Silva vs. Paulu(18!). In Golagoda vs. Mohideen(19) it was heldthat "the court should not enter a decree in a partitionaction unless it is perfectly satisfied that the persons inwhose favour it makes the decree are entitled to theproperty. Investigation of title by the Court is a necessarypre-requisite to every partition decree".
In the instant case the lis pendens has been registered toa land of 3 acres and 3 roods in extent. This clearly proves thefact the lis pendens has not been registered in respect of theland shown in Plan No. 41/1990 which is of 4 acres I rood and18.908 perches.
It was held in Uberis vs. JayawardanePHhat "an actionin respect of one land cannot be converted into an actionin respect of another land by an amendment ofpleadingsand that when a plaint in a Partition Action is amended soas to substitute a new corpus, for the one described in thefirst plaint. Afresh lis pendens would be necesscuy."
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In Bininda Vs. Sediris Singhd21), it was held in preparinga preliminary Plan in a Partition Action it is Irregular for asurveyor, to survey and include in the corpus any land otherthan that which is referred to in the plaint and which hiscommission authorises him to survey.
In the event of any party seeking to have a larger land tobe made the subject matter of the action the Court shall specifythe party to the action to file in Court an application for theregistration of the action as a lis pendens affecting such largerland and the court shall proceed with the action as though ithas been instituted in respect of such larger land after takingnecessary steps under sections 16, 17, 18 and 19 of thePartition Act. In the instant case this procedure has not beenfollowed.
When one takes into account the facts disclosed in thiscase it is abundantly clear that the learned District Judge hasacted in violation of the imperative provisions of the PartitionLaw. Hence it will be a travesty of Justice to allow the judgmentand the interlocutory decree to stand in this case.
According to the proviso to section 48 (3), the powers of theCourt of Appeal by way of revision and restitutio in integrumshall not be affected by the provisions of this subsection.
For the above reasons, acting in revision I set asidethe judgment, interlocutory decree and the amendedinterlocutory decree of the learned District Judge. Further Idismiss the plaint of the plaintiff in this Partition Action withcosts payable by the Plaintiff to the petitioner in a sum ofRS. 5,000/=
JAYASEVGHE, J. – I agree.
Application allowed