043-SLLR-SLLR-2005-V-1-RATNAYAKE-AND-OTHERS-vs.-KUMARIHAMY-AND-OTHERS.pdf
CARatnayake and others vs303
Kumarihamy and others
RATNAYAKE AND OTHERSVSKUMARIHAMY AND OTHERSSUPREME COURTS. N. SILVA, C.JUDALAGAMA, J ANDFERNANDO, J.
SC APPEAL 14/2002CA No. 693/93 (F)
D. C. KURUNAGALA CASE No. 5548/P10TH DECEMBER 2004
Partition ■ Extent of land claimed according to kurakkan sowing extent – PlanNo. 426 – Challenge to the extent of corpus – Decision of court required to be on
304Sri Lanka Law Reports(2005) 1 Sri L. R.
a balance of evidence including boundaries shown on previous deeds • Burdenof challenging the extent of corpus on defendant's witnesses.
In the above action, the plaintiff claimed a land 4 Lahas Kurakkan sowingextent. As per preliminary Plan No. 426 (Lots 1,2 and 3) the extent of the corpuswas 8A 1R 16P.
The defendants claimed that the corpus should be limited to Lot 3 only andamount to 4 acres. The relevant deeds P1, P2, P3 and'P5 showed that someboundaries of the land had been trees which probably disappeared in courseof time. Hence the defendants attempted to limit the extent by referring to thenames of adjoining owners. Further, children of the 1st defendant (nowdeceased) claimed only Lot 2 as being outside the corpus.
HELD:
The trial court had decided the extent of the corpus correctly asbeing 8A, 1R, 16 perches on the basis of the oral and documentaryevidence on a balance of evidence. The burden of controverting theextent of the corpus as claimed by the defendants they had failed todo. It was also not specfically put to the plaintiffs that the corpusconsidered of only Lot 3.
It is difficult to proceed on the basis that 4 Lahas Kurakkan sowingextent amounted to 4 acres as claimed by the defendants as theKurakkan sowing extent would vary from district to district dependingon the fertility of the soil and the quality of grain etc.
APPEAL from the judgment of the Court of Appeal reported in (2002)1 SLR 65
Lakshman Perera for 1 st, 4th and 5th defendants – appellants
G. Ft. D. Obeysekera for 2nd defendant – respondent
D. M. G. Dissanayake with C. G. Liyanage for plaintiffs respondents.
Cur.adv.vult
February 2, 2005UDALAGAMA, J
The plaintiff instituted D. C. Kurunegala case No. 5548/P to partitionthe land called Hapugaspitiya watte morefully described in the scheduleto the amended plaint and depicted in plan No. 426 dated 12.12.1975made by W. C. S. M. Abeysekera, Licensed Surveyor, marked X.
SCRatnayake and others vs305
Kumarihamy and others (Udalagama, J)
Admittedly, the extent vide the aforesaid schedule to the amendedplaint was 4 Lahas of Kurakkan sowing and the land depicted in theaforesaid plan showed the Extent to be 8A, 1R, 16P. Also admittedly theamended plaint filed on 28.09.1988, after the amended statement of claimfiled by the 1st, 4th and 5th defendants on 07.08.1987, contained a 2ndschedule stating therein that the extent of the corpus sought to be partitionedwas8A, 1R, 16P.
The claim of the 1st, 4th and 5th defendants in the District Court videthe aforesaid amended statement of claim appeared to be that the corpussought to be partitioned was only lot 3 of plan No. 426 referred to aboveand that lots 1 and 2 formed a separate land called Rawana ella aliasHapugahapitiya Hena and the 1st, 4th and 5th defendants prayed for adismissal of the action.
The learned District Judge by his judgment dated 23.04.1993 whilstinter alia holding that lots 1, 2 and 3 of plan No. 426 referred to abovecomprised the corpus sought to be partitioned, decreed that the corpusbe partitioned as prayed for by the plaintiff.
Aggrieved by the said judgment the 1A, 4A and 5th defendants -appellants appealed to the Court of Appeal.
The substantial issue for decision in the Court of Appeal, vide paragraph4(b) of the petition of appeal to the Court of Appeal bearing No. C. A. 693/93 (F) was as to whether the cprpus sought to be partitioned was the landbelonging to Kiri Banda as stated by the plaintiff or whether it was the landbelonging to Tikiri Banda as stated by the contesting defendants.
At the hearing of the appeal in the Court of Appeal the contention of thelearned Counsel for the defendants – appellants was that the plaintiff -respondent failed to prove the identity of the corpus at the trial court andthat the extent of the land shown in the preliminary Plan No. 426 referredto above was 8A, 1R., 16P which was far in excess of the extent describedin the schedule to the amended plaint and that the boundaries as stated inthe title deeds produced at the trial differed from those as shown in theaforesaid plan.
The Court of Appeal by its impugned judgment dated 09.11.2001 for thereasons stated therein dismissed the appeal with costs.
306Sri Lanka Law Reports(2005) 1 Sri L. R.
Aggrieved, the 1 A, 4A and 5th defendants – appellants – petitionerssought inter alia special leave to appeal against the judgment of the Courtof Appeal dated 09.11.2001 referred to above.
This court on 05.03.2002 granted special leave to appeal on the questionas to whether the Court of Appeal erred in law in concluding that the landsurveyed and depicted in the preliminary plan ‘X‘ was the same land soughtto be partitioned as described in the schedule to the plaint.
At the argument before this court learned Counsel for the appellantsdrew the attention of this court to issues settled at the trial court andadverted to the fact that the extent given in the schedule to the plaint was4 Lahas of Kurakkan sowing and that 1 Laha of Kurakkan sowing wasequivalent to 1 acre. It appears to be the submission of the learned Counselfor the appellants that 4 Lahas of Kurakkan sowing is equivalent to 4 acresbut that as the extent shown in the preliminary plan referred to abovecomprising lots, 1,2 and 3 therein, refers to an extent of 8A, 1R., 16P, thata larger land in fact was surveyed.
Admittedly, the plaintiff – respondent claimed rights to the corpus interalia on deed of transfer bearing No. 5671 dated 14.12.1975 marked P5wherein the vendor of the latter deed, S. R. M. Wijesundara BandaKatupitiya, sold to the plaintiff – respondent an extent of 4 Lahas of Kurakkansowing of the land called Hapugahapitiya Hena bounded on the North byMurutha tree and Ketakalagahamula, East by a ditch, south byMahakongaha Thotilla tree and West by Oya.
Deed No. 71 dated 12.09.1922 (P3), a deed on which the earlierpredecessor of the plaintiff – respondent is said to have acquired titlesignifcantly had the same boundaries as those in P5 referred to above.The same appears to be true of the boundaries as given in the 2 otherdeeds upon which the plaintiff – respondent traces title, to wit. P1 and P2.
On a perusal of the boundaries as stated in P1, P2, P3 and P5 theNorthern and Southern boundaries are described with reference to trees, itis reasonable therefore to assume that with the advent of time that thetrees so named which described the two Northern and Southern boundarieswould have been non existant at a later period and the names of ownersof the adjoining lands would have been inserted in place of the names oftrees, resulting in the title deeds having different boundaries to that of thepreliminary plan X
SCRatnayake and others vs307
Kumarihamy and others (Udalagama, J)
The contention of the learned Counsel for the defendants – appellantson the matter of identity of the corpus sought to be partitioned also appearedto be that the trial court had erred in deciding the matter on evidenceignoring the deeds and that the court ought to have in fact decided thematter on a consideration of the contents of the deeds and not by oralevidence (page 4 of the written submissions of the appellants)
I would disagree with the above submission as oral evidence underoath and subject to cross examination, is equally important to arrive at afinding.
Perusing the evidence led before the trial court it is abundantly clearthat while only the plaintiff – respondent testified in support of the avermentsin the plaint the defendants – appellants who are now before this courtcontesting the decision as to the identity of the corpus to be partitionedhad on their behalf led the evidence only of one Nimal Ratnayake thesubstituted 1A defendant. Significantly even in cross examination of theplaintiff – respondent np question had been forthcoming to challenge thetestimony of the plaintiff as to the identity of the corpus nor was it specificallyput to the plaintiff that the corpus sought to be partitioned consists only oflot 3 in plan X. Also significantly the 2 children of the contesting 1 st defendant(now deceased) had claimed only lot 2 before the Surveyor at the preliminarysurvey. They appeared to have been remiss in their duty, at the firstopportunity available to them, to point out the correct corpus to bepartitioned, as claimed by them.
Nimal Ratnayake the aforesaid 1A defendant – appellant under oath inhis evidence at page 212 of the brief significantly and specifically statesthat the land as described in the plaintiffs title deeds P6 and P7 comprisesthe corpus as shown in plan X. The 3rd defendant who testified after theaforesaid 1A defendant confirmed the plaintiff’s evidence in respect of thecorpus to be partitioned and the aforesaid testimony taken in its entiretywhich also refers to the contents of the plan X and its report whenconsidered on a balance of probability, conclusively establishes the factthat the land sought to be partitioned was in fact Lots, 1,2 and 3 of plan X.
I would also reiterate the observations of the President of the Court ofAppeal in the impugned judgment that land measures computed on the
308Sri Lanka Law Reports(2005) 1 Sri L R.
basis of land required to be sown with Kurakkan vary from district to districtdepending on the fertility of soil and quality of grain and in the saidcircumstances difficult to correlate the sowing extent with accuracy. Thusthere cannot be a definite basis for the contention that 1 Laha sowingextent be it Kurakkan or even paddy would be equivalent to 1 acre.
In Paragraph 3 of the statement of claims of the 1st, 4th and 5thdefendants filed on 07.08.1987 (page 137 of the brief) they sought to identifylots 1 and 2 in the aforesaid plan marked X as Rawana ella aliasHapugahapitiya Hena which land was said to have been morefully describedin the schedule to the statement of claim referred to above of the contestingdefendants, importantly with reference to Plan No. 1119 dated 18.05.1929made by D. H. de Silva Wickrematillaka, Licensed Surveyor, Howeveradmittedly no steps have been taken by the appellants to superimposethe said plan upon the preliminary plan marked, X, which procedure wouldhave convincingly cleared any doubt, if any, as to the true identity of thecorpus sought to be partitioned. There also appears to be no explanationor reason given as to the failure on the part of the appellant to have doneso.
In the aforesaid circumstances I am inclined to the view that the trialcourt and the Court of Appeal on a balance of probability and on aconsideration of evidence together with documents marked and led at thetrial court came to a correct finding as to the corpus sought to be partitionedand on the single question to be decided by this court when special leavewas granted, I would hold that the Court of Appeal was not in error inconcluding that the land surveyed and depicted in the preliminary PlanNo. 426 marked X referred to above was in fact the corpus sought to bepartitioned, as claimed by the plaintiff – respondent.
This appeal is dismissed with costs fixed at Rs. 5000S. N. SILVA, C. J -1 agree.
RAJA FERNANDO, J. -1 agreeAppeal dismissed.