UDALAGAMA AND OTHERS v. KEMPITIYA

001-SLLR-SLLR-2002-3-UDALAGAMA-AND-OTHERS-v.-KEMPITIYA.pdf

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Udalagama and Others v. Kempitiya
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UDALAGAMA AND OTHERSv.
KEMPITIYA
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 735/95 (F)
DC KURUNEGALA NO. 1742IPFEBRUARY 23 ANDMARCH 20 AND 26, 2001
Partition Act, No. 16 of 1951, sections 2 and 26 – Partition Law, No. 21 of 1977,sections 18 (a) (viii), 21 and 26 – Did the Partition Law authorise a court topartition or make an order relating to right,’ title or interest in a land that felloutside the corpus?
The District Court ordered that the plaintiff-respondents were entitled to the cart-way which fell outside the- corpus as a means of access from the public road.
On appeal -Held:
Section 26 of the Partition Law, No. 21 of 1977 sets out the orders aCourt may include in the Interlocutory Decree in an action instituted undersection 2 by any co-owner to partition a land owned in common.
Although section 18 (a) (viii) makes it obligatory to the Commissioner toinclude in his report, inter alia, the existing means of access to the landfrom the nearest public road, neither section 26 nor section 2 gives anyright to a District Court to make an order with regard to such a roadwayif it feli outside corpus. Section 18 (a) (viii) does not empower the DistrictCourt to adjudicate upon such road, if it fell outside the corpus.
Per Dissanayake, J.
“In my view section 18 (a) (viii) has been included in the Partition Law,No. 21 of 1977 to facilitate the District Court to allot shares to the parties
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according to the respective rights in an equitable manner, taking into considerationthe necessity to grant a right of access to each lot from the nearest publicroad.”
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to :
Kanthia v. Sinnathamby – 2 Balasingham Notes of cases at 19.
Thambiah v. Sinnethamby – 55 CLW 55 and in 61 NLR 421.
A. D. Dionis v. William Singho – 77 NLR 103.
Hewavitharana v. Themis de Silva – 63 NLR 68.
P. A. D. Samarasekera, PC with Keerthl Sri Gunawardena for 1st and 2nddefendant-appellants.
A. D. S. Suraweera for plaintiff-respondents.
Cur. adv. vu!t.
October 19, 2001DISSANAYAKE, J.
The plaintiff-respondent filed this action to partition the land called“Kolapellala Kanda” morefully described in the 2nd schedule to theplaint.
There was no contest between the parties with regard to the corpusand the share allotments.
The case proceeded to trial on 4 issues and at the conclusionof the trial the learned District Judge ordered entering of decreeallotting shares to the plaintiff-respondent and the defendant-appellants.The learned District Judge also ordered that the plaintiff-respondents
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Udalagama and Others v. Kempitiya (Dissanayake, J.)
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were entitled to the cartway depicted as X to Z in plan X as a means «of access from the Kandy-Kurunegala public road.
It is from the aforesaid judgment that this appeal is preferred.
The only substantial issue involved in this case was whether theplaintiff-respondent was entitled to the cartway, lying from the Kandy-Kurunegala public road depicted as X to Z in plan No. 682 ofCommissioner H. M. S Herath dated 24. 02. 1983 producedmarked ‘X’.
The said cartway admittedly fell outside the corpus and lay to theNorth of the corpus. It was common ground that the said roadwayfell across the lands of the 2nd and 3rd defendant-respondents. It 20was also common ground that the 3rd and 4th defendant-appellantswere not named as parties in the plaint and the 3rd and 4th defendant-appellants were added as parties on their intervention subsequently.
Learned President’s Counsel appearing for the defendant-appellantscontended that the learned District Judge has misdirected himselfin ordering a right of way over the lands of the 2nd and 3rd defendant-appellant’s land that fell outside the corpus. He contended that thePartition Law did not authorize a Court to partition or make an orderrelating to right, title, or interest in a land that fell outside the corpus.
To buttress his argument learned President’s Counsel cited the decisions 30of the following cases :
Kanthia v. Sinnathamby01 Balasingham’s notes of casesat 19.
Thambiah v. Sinnathamby
A. D. Dionis v. A. William Singho.(3)
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Lascelles, CJ. in the case of Kanthia v. Sinnethamby {supra) inconsidering the question whether the learned Commissioner wasright in refusing to make an order with regard to a certain rightof way claimed by the appellant’s over certain land lying outsideand to the North of the land which was the subject of the partitionaction observed :
“There can, in my opinion, be no doubt but that the Commissionerwas right in refusing to adjudicate with regard to the existence ofa servitude on land outside the land which was the subject-matterof the partition action. If the land to the North had belonged toa stranger, a person who was not a party to the action, it is clearthat no order with regard to a servitude over the land would haveany binding effect; and the accident that the land belonged tothe plaintiff can in no way enlarge the powers of Court in a partitionaction.”
The aforesaid judgment of Lascelles, CJ. has been followed in thecase of Thambiah v. Sinnethamby {supra) which decided that in apartition action a declaration cannot be obtained, that a land outsidethe land to be partitioned is subject to a servitude. Weerasuriya, J.observed :
“It is not clear how in a partition action declaration can beobtained that a land outside the land to be partitioned is subjectto a servitude, for this in effects is what the plaintiff seeks. Ourattention was drawn by Mr. Chelvanayakum who appeared for the3rd defendant-respondent to the case of Kanthia v. Sinnathamby{supra) where it was held that such a declaration could not begranted. The position seems to be the same under the PartitionAct, No. 16 of 1951, which governed the present action. On thisground alone, therefore, the declaration sought for by the plaintiffshould have been refused.”
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Udalagama and Others v. Kempitiya (Dlssanayake, J.)
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In A. D. Dionis v. A. William Singho and Others (supra) it washeld that in a partition action once a certain land has been excludedfrom the corpus sought to be partitioned, the Court has no authority,under the Partition Act to determine the right, title or interest of anyperson who claims to be entitled to the land that has been excluded,or to the plantations, buildings or other improvements on it.
It was the contention of learned Counsel for the plaintiff-respondentthat under section 18 (1) (vii) of the present Partition Law, No. 21of 1977 the Commissioner is obliged to include in his report the existingmeans of access to the corpus from the nearest public road andtherefore under the present law as it stands today once the meansof access from the nearest public road is included in the report ofthe Commissioner, the Court is obliged to make a determination withregard to the said roadway, even if such roadway fell outside thecorpus.
The rights of parties whose land fell outside the land to be parttionedand the scope of section 2 of the old Partition Act, No. 16 of 1951,and the orders that can be made by a District Court in an InterlocutoryDecree under section 26 of the old Partition Act which are on thesame lines as sections 2 and 26 of the present Partition Law,No. 21 of 1977 has been dealt with in detail in the case of A. D.Dionis v. A. William Singho (supra) Pathirana, J. at page 105 quotingThambiah, J. in Hewavitharana v. Themis de Silvat41 had stated thus :
“There is no provision in the Partition Act that the Court isobliged to make any of the orders set out in section 26 (2), inrespect of the land that is described in the plaint. Nor is thereany provision in the Act providing for the declaration of title toa land solely owned by a person, which has been wrongly included
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in the corpus sought to be partitioned. In such cases the practicehitherto has been to exclude the land which is outside the subject-matter of the partition action and which is proved to have beenthe property of a person who is not a party to the proceedings.It is not uncommon for a plaintiff to include small portions of landin the corpus belonging to other persons. In all such cases if theCourt has to adjudicate also on the title of the owners of thoselands, then the Court will be obliged to investigate the title of landswhich do not come within the purview and scope of section 2 ofthe Partition Act. Further, if the Court has to examine the title ofpersons whose lands have been wrongly included in the corpus,great inconvenience and hardship may be caused to persons whomay be quite content to possess such lands in common or if ithappens to be the land of a single individual, to possess it byhimself. In our view it is not the intention of the legislature inpassing the Partition Act that the Court should partition any landsother than those that came within the ambit of section 2 of theAct.”
Section 26 of the Partition Law, No. 21 of 1977 sets out the ordersa Court may include in the Interlocutory Decree in an action institutedunder section 2 of the Partition Law by any co-owner to partition aland owned in common.
Section 18 (a) (viii) of the Partition Law makes it obligatory tothe Commissioner to include in his report inter alia, the existing meansof access to the land from the nearest public road.
Although under section 18 (a) (viii) existence of such a means ofaccess has to be included in the Commissioner’s report, neither section26 nor section 2 gives any right to a District Court to make an orderwith regard to such a roadway if it fell outside the corpus.
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Udalagama and Others v. Kempitiya (Dissanayake, J.)
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In my view section 18 (a) (viii) has been included in the PartitionLaw, No. 21 of 1977 to facilitate the District Court to allot shares tothe parties according to their respective rights in an equitable manner,taking into consideration the necessity to grant a right of access toeach lot from the nearest public road.
It would appear that section 18 (a) (viii) does not empower theDistrict Court to adjudicate upon such access road, if it fell outside >30the corpus.
Therefore, the contention of learned Counsel appearing for thedefendant-respondent that section 18 (a) (viii) gave District Courtspower to adjudicate on a right of access, even if such means ofaccess fell outside the corpus, is untenable.
The learned District Judge misdirected himself when he came tothe finding that the plaintiff-respondent is entitled to the cartway fromthe Kurunegala-Kandy public road, depicted as X to Z in planNo. 682 of the Commissioner dated 24. 02. 1983 produced marked
I set aside that part of the judgment of the learned District Judgedelivered on 27. 09. 1995 and the Interlocutory Decree granting aright of cartway to the plaintiff-respondent from the Kurunegala-Kandypublic road, depicted from X to Z in plan No. 682 dated 24. 02. 1983(X) made by Commissioner H. M. S Herath.
The learned District Judge is directed to amend the InterlocutoryDecree accordingly.
The appeal is allowed with costs.
T. B. WEERASURIYA, J. (P/CA) – I agree.
Appeal allowed.
(X).
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