023-SLLR-SLLR-2009-V-1-GUNASINGHE-vs-PODIAMMA-AND-OTHERS.pdf
174
Sri Lanka Law Reports
12009)1 SR1L.R.
GUNASINGHE
vsPODIAMMA AND OTHERS
COURT OP APPEALABDUL SALAM, J.
CA 1782/2002 (REV.)
DC KULIYAPITIYA 7466/PAUGUST 25, 2008
Partition Law ~ Part of a larger land partitioned? – Discrepancy inthe extent in the plaint and in the preliminary plan – Investigationof title – Duty ofCourt – Proofof original ownership – Degree ofproof? – Lispendens.
The petitioner seeks to revise the judgment on the ground that, theDistrict Court had failed to take into consideration the fact that whatwas sought to be partitioned was a part of a larger land, and thediscrepancy in the extent of the subject matter in the plaint and thepreliminary plan is about V* of an acre and therefore it cannot be treatedas marginal or negligible and that the registration of the lis pendensbeing in respect of an extent of 3 Vi Acres, the action could not haveproceeded without any amendment of the plaint.
Held:
A perusal of the preliminary plan clearly shows that the boundariesof the subject matter as described in the said plan are identicalto that of the boundaries set out in the deeds produced by theplaintiff and the land set out in the plaint.
The indefinite or undefined eastern boundary on the preliminaryplan would not necessarily mean that the land surveyed forpurpose of the action is only a portion of a larger land.
Per Abdul Salam, J
“It is trite law that proof of original ownership of a land is notalways placed at a very high degree and as such the plaintiffshould have been shown some leniency relating to the proof oforiginal ownership.
CA
Ounasinghe Vs Podiamma and others
(Abdul Salam, J.)
175
APPLICATION in Revision from an order of the District Court ofKuliyapitiya.
Cases referred to:-
Brampy Appuhamy vs. Mendis Appuhamy – 60 NLR 337
W. Uberis vs. Jayawardane – 62 NLR 217
K. M. C. D. Dias vs. Kariyawasam Majuwana Gamage – CA897/92
Dr. Jayantha de Almeida Gunaratne PC with Ayendra Wickremasekera andLasith Chaminda for petitioner.
M. C. Jayaratne with N. Senaratne for l'* and 2nd respondents.
Cur.adv.vult
February 10, 2009ABDUL SALAM, J.
This is an application made in revision to have thejudgment and interlocutory decree dated 2nd May 2002 setaside and/or revised or to have the plaintiffs action dismissedand/or for an order directing a retrial of the case.
The plaintiffs instituted the partition action in respect ofa land called Mahawatta alias Innawatta alias Erumaliyaddawhich was depicted for the purpose of the partition actionby preliminary plan No. 620 prepared by R. A. Navaratne,Licensed Surveyor.
Admittedly, the subject matter is depicted as lots 1 and 2in plan No. 620 aforesaid. The learned district Judge havingexamined the deeds produced by the parties and theadmissions made by them as regards the identity of thecorpus, arrived at the conclusion that the subject matter ofthe partition action comprises of lots 1 and 2 depicted in planNo. 620.
Quite contrary to the admissions recorded at theinstance of the parties, the petitioner now seeks to resile from
176
Sri Lanka Law Reports
[2009] 1 SRIL.R.
the agreement and argue that the learned District Judgehas failed to take into consideration the fact that what wassought to be partitioned was a part of a larger land. Hence,the petitioner contends that the District Judge ought to haveproceeded to take steps to have the correct subject matterdepicted in reference to a different survey plan and notentered an interlocutory decree to partition the land.
The petitioner has urged that the discrepancy in theextent of the subject matter as given in the plaint andthe preliminary plan is about 3A of an acre and thereforecannot be treated as a margined or negligible inconsistency.It is further submitted on behalf of the petitioner that theregistration of the lis pendens being in respect of an extentof 3 Vs acres, the action could not have proceeded withoutany amendment of the plaint and a fresh lis pendens. Thelearned President’s Counsel of the petitioner relies on thejudgments of Brampy Appuhamy vs Mendis Appuhamt/1] W.Uberis vs. Jayawardena,2) and K. M. G. D. Dias vs. Karia-wasam Majuwana Gamagel3> to drive home his point that thelearned district judge should not have entered interlocutorydecree to partition the subject matter.
In the case of Brampy Appuhamy vs Mendis Appuhamy(Supra) the corpus sought to be partitioned was describedin the plaint as a land about 6 acres in extent and thecommunication issued to the surveyor was to survey aland of that extent. However the surveyor could survey aland of only 2 acres and 3 roods. Interlocutory decree wasentered in respect of the land of 2 acres and 3 roods, withoutany question being raised by the parties as to the extensiveinconsistency between the extent given in the plaint and thatwhich was shown in the plan made by the surveyor. It washeld that the court had acted wrongly in proceeding to trialin respect of what appeared to be a portion only of the landdescribed in the plaint.
CA
Qunasinghe Vs Podiamma caul others
(Abdul Salam, J.)
177
In the case of W. Uberis vs. Jayau/ardena (supra) theplaint in the partition action was amended so as to substitutea new corpus for the one described in the first plaint andit was held that a fresh lis pendens would be necessary tomaintain the action.
In the case of K. M. G. D. Dias vs Kariawasam MajuwanaGamage (Supra) the plaintiff sought to partition a land inextent 4 acres 3 roods 12.1 perches being in extent afterexcluding 5 acres 4.9 perches which was acquired by theState from and out of a larger land in extent 9 acres 3 roods17 perches. The lis pendens registered was in respect of alarger land in extent 9 acres 3 roods 17 perches, which wasinclusive of the extent of 5 acres 4.9 perches that formedthe portion said to have been acquired by the State. Thedescription of the land even in the plaint was that of thelarger land that existed prior to the acquisition. It was heldthat the District Judge had committed a cardinal error inordering a partition in respect of the land which is a portionof the larger land.
The facts however in this case are quite different. Theplaintiff in his plaint sought to partition a land in extent ofabout 3l/a acres the boundaries of which are described tobe on the North, East and West by the lands belonging toMudalihamy Mahathmaya and others and on the Southby lands owned by Sundara Bandara and others. At thisstage it is of paramount importance to note the boundariesdescribed in the preliminary plan No. 620. A perusal ofthe said plan clearly shows that the boundaries of the subjectmatter as described in the said plan are identical to that ofthe boundaries set out in the deeds produced by the plaintiffand the land set out in the schedule to the plaint.
Even the document marked PI sets out the boundariesof the subject matter as the lands belonging to Mudalihamy
178
Sri Lanka Law Reports
[2009] 1 SRI L.R.
Mahathmaya and others on the North, East and West andby lands owned by Sundara Bandara and others on theSouth. Quite consistent with the boundaries given in PI, thedocuments marked as P2, P3, P4, P5 and P6 describe theboundaries of the subject matter in the same manner as hasbeen described in PI and also in the plaint. The lis pendensalso contain the identical boundaries given in the plaint.
In the circumstances, the subject matter of the partitionaction cannot be said to be a portion of a larger land as hasbeen contended by the petitioner. The indefinite or undefinedeastern boundary on the preliminary plan would notnecessarily mean that the land surveyed for purpose of theaction is only a portion of a larger land, as the petitionerhad attempted to make out. Consequently, the discrepancycannot be considered as being so material, particularly inview of the unequivocal admissions made by the petitionerand other parties as to the identity of the corpus.
The learned trial Judge in his judgment has carefullyconsidered the contents of the deeds produced on behalfof the petitioner prior to his concluding that the land dealtin the deeds produced by them are not applicable to thesubject matter. Even as regards the original owner referredto by the petitioner the learned District Judge has givencogent reasons, before he rejected the version of the petitioner.According to the learned District Judge the land referred toin the deeds produced by the petitioner is different from theland sought to be partitioned by the plaintiff. Further thesurname of Punchirala referred to by the petitioner is totallydifferent from the surname of Punchirala referred to in theplaint as the original owner.
It is trite law that proof of original ownership of a landis not always placed at a very high degree and as such theplaintiff should have been shown some leniency relating
CA
Ounasinghe Vs Podiamma and others
(Abdul Salam, J.)
179
to the proof of original ownership. In any event 14th to 17thdefendants have failed to establish the devolution of title tothe corpus and also failed to prove prescription accompaniedby an element of ouster by an overt act.
For the foregoing reasons it is my view that the revisionapplication of the petitioner should fail. Hence I make orderaccordingly.
I make no order as to costs.
Application dismissed.