013-SLLR-SLLR-2007-V-1-JAYATISSA-v.-APPUHAMY.pdf
CA
Jayatissa vAppuhamy (Chandra Ekanayake, J.)
155
JAYATISSA
v
APPUHAMY
COURT OF APPEALEKANAYAKE, J.
GOONERATNE, J.
CA 752/95 (F)
DC KALUTARA 5170/PSEPTEMBER 19, 2007
Partition Law- S35 Amendment -Act 17of 1977- Scheme Inquiry – Originaldefendant permitted to object to final plan – Can the person who is substitutedbe given another opportunity to consider plan/ report?
Held:
When the Court had duly and properly allowed the original defendant toobject to the final plan, the person who was substituted in the room ofthe deceased defendant cannot be given another opportunity toconsider the plan and the report.
APPEAL from the judgment of the District Court Kalutara.
Daya Guruge with G.M.R. Wimalaweera for 1A defendant-appellant.
Hemasiri Withanachchi with Shantha Karunadasa for substituted plaintiff-respondent.
November 13,2007
CHANDRA EKANAYAKE, J.
The 1A defendant-appellant (hereinafter sometimes referredto as the 1A defendant) by this appeal has sought inter alia, to setaside the order and decree dated 10.08.1995 pronounced in theDistrict Court Kalutara case No. 5170/P and to direct that a date forconsideration of the final plan and report or a date be given to the1A defendant to file his objections to the scheme of partition planNo. 717 and report. As evidenced by Journal Entry No. 106 of
the final decree dated 16.08.1995 was tendered andorder made to be sent for registration after signing the same. As per
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Journal Entry No. 109 of 06.10.1995 the final decree had beenreturned after due registration.
The original plaintiff had instituted the above styled partitionaction in the District Court of Kalutara seeking to partition Lot No.3of “Dodangodagewatte" alias “Dodangahawatta” in accordancewith the undivided shares shown in paragraph (4) of the plaint. Afterfiling the statement of claim of the original defendant case hadproceeded to trial and the learned trial Judge by judgment dated
had ordered a partition according to the undividedshares embodied there.
After entering the interlocutory decree commission had beenissued to the Commissioner in the case namely – E.T.Gunawardena for the final survey. As seen by the Journal Entry No.67 dated 19.03.1992 said Commissioner had returned thecommission with the final plan bearing No. 1162 of 10.02.1992together with the summary of distribution. Thereafter as per JournalEntry No. 70 of 29.04.1992 the original defendant’s Attorney-at-Lawhaving filed a petition supported by an affidavit had moved to rejectthe said commissioner’s plan No. 1162 and moved for analternative commission. By order of the Court dated 02.06.1992(J.E.71) application for alternative plan had been allowed and orderwas made to issue an alternative commission returnable for
K.D.L. Wijenayake (L.S) while returning the saidcommission had submitted the alternative plan No. 178 of
and scheme inquiry had been fixed for 09.10.1992.
At the scheme inquiry on a joint application by both partiescommission was issued to both surveyors (Commissioner in thecase and K.D.L. Wijenayake – L.S). It appears from the JournalEntry No. 82 of 10.03.1993 that, said commission was returnedunexecuted seeking further instructions. Thereafter it was againfixed for scheme inquiry for 09.10.1992, despite both partieshaving agreed to abide by the plan which would be prepared byboth surveyors. However the said commission was not executedand thereafter the matter was again fixed for scheme inquiry on
It appears that same being resolved by way of writtensubmissions (vide Journal Entries 83 to 86) order was fixed for
12.07.1993.
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That is the plan (No.717) and report submitted in compliancewith the above order. Though a joint commission was ordered tobear the expenses jointly by both parties, it is seen from JournalEntry No.95 the plaintiff had undertaken to pay the defendant’sshare of the commission fees and subsequently commission hadto be issued to another Licensed Surveyor as the Commissioner inthe case had withdrawn. In the result in compliance with the orderof Court Commissioner had been issued to G. Adikaram (LicensedSurveyor) vide Journal entry 97 of 19.01.1995 and the respectivemarginal note of the Registrar of the District Court. The final planbearing No. 717 dated 25.04.1995 with the report and the otherannexures was submitted by G. Adikaram (L.S) as a result of theorder of Court dated 12.07.1993, which being the order made afterscheme inquiry. For the first time death of the defendant had beenbrought to the notice of Court on 21.06.1995 (J/E-103) and on
the 1A defendant was substituted in the room of thedeceased-defendant. On that day since there was no objectionfrom 1A defendant, said final plan had been confirmed. Since it wasa plan and report submitted in compliance with the jointcommission issued in terms of the order dated 12.07.1993 whichbeing an order with regard to the scheme inquiry held (in which theoriginal defendant too participated) no further date need be givento the 1 A defendant to consider same.
In this respect examination of the provisions in section 35 ofthe Partition Law (as amended by Act No. 17 of 1977) wouldbecome relevant. Plain reading of that section would reveal that
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By the order dated 12.07.1993 the learned trial judge hadordered to issue a commission to the Commissioner in the casenamely – E.T.Gunawardane to prepare a plan and a reportaccording to the instructions given therein. Last paragraph of thesaid order is as follows:-
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after the return to the commission the Court shall call the case inopen Court to fix a date for the consideration of the scheme ofpartition proposed by the surveyor. Of course the time frame withinwhich that has to be done is given in the section. In the case athand Court had already complied with this provision andfurthermore the original defendant being the only defendant in thecase was even given an opportunity to tender objections to the final 90plan and scheme inquiry was fixed. At the inquiry also the originaldefendant had been duly represented by Counsel and theaforesaid order dated 12.07.1993 was the order which waspronounced after the said inquiry. It is seen that thereafter only thedeath of the original defendant had occurred and 1 A defendantwas substituted. When the Court had duly and properly allowed theoriginal defendant to object to the final plan bearing No. 1162, theperson who was substituted in the room of the said deceased-defendant (1 A defendant) cannot be given another opportunity toconsider the plan and report (plan No. 717) which being the 100outcome of the order dated 12.07.1993 – order of the schemeinquiry. For the reasons given as above I see no error in the orderdated 16. 08.1995 of the learned District Judge confirming the finalplan bearing No. 717 with the report and the other annexures andin the judgment pronounced also.
For the foregoing reasons this appeal should fail. I wouldaccordingly dismiss the appeal with costs fixed at Rs. 15,000/-
GOONERATNE, J. – I agree.
Appeal dismissed.