072-NLR-NLR-V-67-S.-UPAGEERIS-Appellant-and-M.-ODANIS-andd-7-others-Respondents.pdf
1964Present: Basnayake, C.J., and Abeyesundere, J.S.UPAGEERIS Appellant, and M. ODANIS and 7 others, R3spondents
S. C. 41/62—D. C. Panadura, 6919/P
Partition action—Fresh evidence—Admissibility at the stage of appeal,
A partition action was dismissed on the ground that the marriage of a personfrom whom the plaintiff derived his rights had net been registered. At thehearing of the appeal, the plaintiff produced the marriage certificate. Hestated that he was unable to produce it at the trial as it had not been tracedthen.
Held, that the marriage certificate should be admitted in evidence.
.A.PPEAL from a judgment of the District Court, Panadura.
R. P. Goonetilleke, for Plaintiff-Appellant.
C. de S. Wijeratne, for 3rd, 4th, 5th, 7th and 8th Defendants-Respondents.
March 17, 1964. Basnayake, C.J.—
This action has been dismissed on the ground that the plaintiff hadfailed to prove his title. The learned District Judge founded hisjudgment on the fact that the marriage of Thobia from whom theplaintiff derived his rights had not been registered. At the hearing ofthis appeal learned counsel for the appellant sought to produce thecertificate of marriage of Thobia. He says he was unable to produceit at the trial as it had not then been traced. If Thobia’s marriagewas in fact registered, the decision of the District Judge would haveto be set aside
This is a partition action in which the duty of investigating title iscast on the Court, and the consequences of a decision are far reaching.Now that we have been apprised of the existence of this vital piece ofevidence, we think it just and proper that we should set aside thejudgment and decree and send the case back to the t ial oourt inorder that the certificate of the marriage registration may be produced.It will help to decide whether Thobia was married to Noiya and whetherthe marriage was registered. We also direct the District Judge toinvestigate whether Sediris was a legitimate child of that marriage. Weaccordingly set aside the judgment and decree of the District Judge andsend the case back for the reception of the evidence that the plaintiffnow seeks to place before the Court and of any other evidence that thetrial Judge may think fit to receive.
In the circumstances of this case we declare the defendants entitledto the costs of the appeal. The costs of the further hearing will abidethe final result.
Abeybsundebb, J.—I agree.
Case sent back for further hearing.