051-SLLR-SLLR-2003-V-3-SUMANAWATHIE-v.-BANDIYA-AND-OTHERS.pdf
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Sri Lanka Law Reports
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SUMANAWATHIEv
BANDIYA AND OTHERSCOURT OF APPEALDISSANAYAKE, J.
SOMAWANSA, J.
A. 500/94(F)
C. ANURADHAPURA 160 PAUGUST 1,2003SEPTEMBER 11,2003
Partition Law, No. 21 of 1977- Section 12(1) – Lis Pendens Registration withno reference to prior Registration – Is it defective? Non Registration of lis pen-dens – Could the Judgment be attacked on this issue? Possession of a co-owner – Adverse possession – Ouster – Primary facts – findings – not lightly. to be disturbed
Plaintiff-respondent instituted action to partition the land in question. The maincontention was whether the original owner was "N" as averred by the plaintiffor “B" as pleaded by the 2nd defendant-appellant. The learned District Judgeheld with the plaintiff-respondent.
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It was contended that, registration of the lis pendens is defective and the fail-ure to comply with section 12(1) is fatal.
Held :
No issue has been settled on defective lis pendens registration or failure to. comply with section 12(1). No questions have been put to the plaintiff-
respondent on these two issues.
There is no provision in the Partition Law for the dismissal of an actionmerely on the ground that the lis pendens has not been registered in thecorrect folio.
The 2nd defendant-appellant is a party to the action-, and no prejudice hasbeen caused to her by the lis pendens registration being defective or noncompliance with section 12(1).
On the question of.fact, as to who is the original owner and who is in pos-session –
Per Somawansa, J.
"In deciding these questions of fact the learned District Judge was in a bet-ter position than me and had the advantage of seeing, hearing and observ-ing the demeanour of the witnesses who were called to testify to the mat-ters in issue".
The possession by a co-owner enures to the benefit of the co-heirs. It isnot possible for him to put an end to that possession by any secret inten-tion in his mind.
APPEAL from the Judgment of the District Court of Anuradhapura.
Cases referred to:
Don Sadiris v Heenhamy – 68 NLR 17
Seneviratne v Kanakaratne (1937) – 39 NLR 272
Victor Perera v Don Jinadasa – 45 NLR 45
Rasiah v Thambipiltai – 69 CLW 57
CA 287/82(F) – D.C.Gampaha No.22610/L – CAM 5.12.1988
Sideris v Simon – 46 NLR 273
Maria Perera v Albert Perera – 1983 2 Sri LR 339
Corea v Iseris Appuhamy –15 NLR 65(PC)
Fradd v Brown & Co.Ltd, 20 NLR 282
Alwis v Piyasena Fernando —1993 1 Sri LR 320
Mahinda Ralapanawa for 2A defendant-appellantRohan Sahabandu for plaintiff-respondent.
Cur.adv.vult
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March 19, 2004SOMAWANSA, J.
The plaintiff-respondent instituted the instant partition action in 01the District Court of Anuradhapura to partition the land called andknown as "Pahala Elapatha" morefully described in the schedule tothe plaint.
The position taken by the plaintiff-respondent was thatWannihamy Wawlekam and his predecessors in title had pos-sessed the land sought to be partitioned for well over 150 yearsand on his death his four children Mudiyanse, Kapuru Banda, MutuMenika and Neelamma possessed the same. On their death theirchildren inherited the said land and majority of them by deed 10No.4543 dated 05.05.1970 marked P1 conveyed 11/12 shares ofthe land to the plaintiff-respondent and the 1st defendant-respon-dent thus each being entitled to 11/24 shares and the 2nd defen-dant-appellant to the balance 2/24 shares.
The contesting 2nd defendant-appellant's position was thatthe original owner of the land to be partitioned was one AppuralageBanda and on his death his rights devolved on his three childrenWannihamy Wewlekam, Herath Hamy and Tikirihamy each beingentitled to 1/3 share. The 2nd defendant-appellant accepted thedevolution of title of Wannihamy Wewlekam's share as shown in 20the plaintiff-respondent's pedigree. As for Herath Hamy's share theposition of the 2nd defendant-appellant was that his rights devolvedon his children Mutu Menike and Tikiri Banda who became entitledto 1/6 share each and Tikirihamy's share devolved on his 5 childreneach becoming entitled to 1/18 share.
The 2nd defendant-appellant aver6ed that his motherNeelamma acquired prescriptive rights to the entire land sought tobe partitioned and on her death the said land was possessed bySomawathi, Tikiri Banda and the 2nd defendant-appellant and asSomawathi, and Tikiri Banda left the village he alone possessed 30and occupied the whole land thereby acquiring prescriptive title tothe whole land. In the premiss, he prayed for the dismissal of theplaintiff-respondent's action and that he be declared entitled to theland in suit.
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Parties went to trial on 30 points of contest. The main contestwas whether the original owner was Wannihamy Wewlekam asaverred by the plaintiff-respondent or Appuralalage Banda whoserights devolved on his 3 children as pleaded by the 2nd defendant-appellant.
At the conclusion of the trial, the learned District Judge by hisjudgment dated 12.01.1994 held with the plaintiff-respondent. It isfrom the said judgment that the 2(a) defendant-appellant' haslodged this appeal.
At the hearing of this appeal, it was contended by the counselfor the 2(a) defendant-appellant that the lis pendens has been reg-istered in a new folio with no reference to the folios on which thetransfer deed has been registered and that the lis pendens appli-cation has been submitted with no prior registration reference andin fact even in the schedule of the said application there are no priorregistration details. In the circumstances, he submits that as the lispendens has been registered with no reference to any prior regis-tration details the lis pendens registration is defective. Furthermore,the plaintiff-respondent has failed to file the report of the Attorneywith regard to the lis pendens registration in terms of Section 12(1)of the Partition Law which is also a mandatory requirement.Therefore he submits that in view of the defective lis pendens reg-istration and failure to comply with the mandatory requirement ofsection 12(1) of the Partition Law the judgment cannot stand. Tosubstantiate the said argument counsel has cited two decisions.However I am unable to agree with the above submission for defec-tive lis pendens registration or the failure to comply with the require-ment of section 12(1) of the Partition Law is not a ground to setaside the judgment in appeal.
On an examination of the proceedings, I find that no issue hasbeen settled on these two points, viz. defective lis pendens regis-tration and the failure to comply with the requirement of section12(1) of the Partition Law. No questions have been put to the plain-tiff-respondent on these two issues. Though the counsel for the 2(a)defendant-appellant tried to make out that attention of Court wasinvited to the said non-compliance in the oral submissions of thecounsel for the 2(a) defendant-appellant and that the learnedDistrict Judge has failed to consider this matter in his judgment. All
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what the counsel has stated in his oral argument is as follows:
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The reference to due registration of /is pendens by the coun-sel appear to be only a passing reference to provisions that shouldbe complied with in the Partition Law. However there is no allega-tion or reference at all by the counsel that in the instant action reg-istration of his lis pendens is defective or that provision in section12(1) has not been complied with. The first decision cited by coun-sel for the 2(a) defendant-appellant is the decision in Don Sadiris vHeenhamy<1) the facts were as follows:
“In the course of the trial counsel for some of the contest- 90ing defendants raised two further points, i.e, whether the lispendens had been duly registered, and, if not, whether theplaintiff could maintain this action. The learned District Judgeheld that the lis pendens was not duly registered and for thisreason dismissed the plaintiff's action. The plaintiff hasappealed”.
Per Sirimane, J. at p. 19:
“In my view, an action should not be dismissed merelybecause the- lis pendens has been registered in the wrongfolio. When it is found in the course of a trial that the lis pen- 100dens has been incorrectly registered, the proper procedure isto take the case off the trial roll and offer the plaintiff an oppor-tunity of correcting his mistake; and after a declaration is filedby his Proctor under section 25(1) of the Partition Act, and anynew party which it may be necessary to add has been givennotice, the Court will proceed on with the action”.
It is to be noted that the decision in that case has no applica-tion, to the facts in the present case, for in that case the contesting
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defendants did raise two issues as to whether the lis pendens hadbeen duly registered and if not whether the plaintiff could maintainthis action, and the learned District Judge held that the lis pendenswas not duly registered and for this reason dismissed the plaintiff'sappeal. In the circumstances, the order of the learned DistrictJudge was set aside and the case was sent back to the DistrictCourt so as to give the plaintiff an opportunity of registering his lispendens in the correct folio and thereafter to take such steps asnecessary to bring the case to trial. However in -the instant actionno such issue raised viz. that lis pendens registration is defectiveor that requirement in section 12(1) of the Partition Law has’notbeen complied with. In fact no question was put to the plaintiff-respondent or any objection taken on this issue and no evidenceled. The learned District Judge was. not called upon to decide thisissue. At this point It would be appropriate to quote what Sirimane,
J.stated in that case at p. 18:
“What would be the result if it is found during the course ofa trial that the registration of the lis pendens is not in the cor-rect folio? In practice there are several cases where the largemajority of deeds are registered in a particular folio, but a verydiligent search of the Land Registry may reveal that the oldestdeed is registered in another folio. Should then the action bedismissed? I think not. The purpose in registering a lis pen-dens is two-fold: firstly, that all parties who have registereddocuments may have notice of the action; and secondly, thatintending purchasers of undivided shares may be made awareof the partition action that is pending. There is no provision inthe Partition Act itself for the dismissal of an action merely onthe ground that the lis pendens has not been registered in thecorrect folio. It may be noted here that even in a case wherethe lis pendens has been incorrectly registered in an actionunder the old Ordinance, it was decided in the case ofSeneviratne v KanakaratneM that there is no provision in theRegistration of Documents Ordinance for dismissing an actionon the ground that lis pendens has not been duly registered”.
The other decision cited by counsel for the 2(a) defendant-appel-lant is Victor Perera v Don Jinadasd3) the facts were as follows:
“The question of the due registration of the lis pendens was
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raised as a specific issue on behalf of the appellant and evi-dence was led thereon; this issue was treated by counsel forall parties who participated at the trial as being the crucialissue, but the learned District Judge nevertheless declined to 150answer it, observing that the question of the due registration ofthe lis pendens “cannot be canvassed afresh in these pro-ceedings”. In taking that course the learned judge appears tohave assumed what had indeed to be established viz. that theappellant himself was bound by the decree in the partitionaction.
The appellant, it must be emphasized, does not claim anyright, title or interest as being derived directly or even remote-ly from the decree in the partition action, On the other hand,not having been a party to that action, he claims adversely to 160that decree. In these circumstances it seems to me that thetrial judge was obliged to address his mind at the trial to thequestion of the due registration of the partition action as a lispendens. It is neither satisfactory nor possible for us to essayan answer to that question (issue 7 at the trial) in this Court.
The question is essentially one for a trial court”.
Accordingly the decree dismissing the plaintiff's action was setaside and case remitted to the District Court. Again the decision inthat case has no application to the facts in the instant case.
In this respect, counsel for the plaintiff-respondent has brought 170to our attention the decision of Rasiah v ThambipillaW. Howeverwhat was considered in that appeal is the effect on an interlocuto-ry decree entered in a partition action of the failure to register theaction duly as a lis pendens under the Registration of DocumentsOrdinance. The appellant in that case petitioned the District Courtto quash all proceedings. On this ground the learned District Judgeheld that once interlocutory decree had been entered no such reliefwould be given to them and dismissed the application. TheSupreme Court by a majority decision held that the learned DistrictJudge had come to a correct finding.180
Counsel for the plaintiff-respondent also cited CA No.287/82(F)(5) wherein Palakidnar, J. observed;
"The partition law section 48(5) enacts that the party to the
Sumanawathie v Bandiya and others
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action is bound by the decree and it is final and conclusive inall respects. A third party may attack the judgment and decreeon stipulated grounds but a party to the action is precludedfrom doing so. Under the earlier Partition Act judgment anddecree could be challenged on the ground that there was nonregistration of lis pendens but in the present law such a provi-sion has been omitted and a party to the action cannot chal-lenge it on that footing.”
I might also say that the 2(a) defendant-appellant is a party tothis action and no prejudice has been caused to her by the lis penrdens registration being defective or non-compliance of requirementin section 12(1) of the Partition Law.
It is also contended by the counsel for the 2(a) defendant-appellant that the plaintiff-respondent's claim was on the assump-tion that entirety of the land belongs to Winnihamy Wawlekam.However no evidence was led or any material placed to show whowere the predecessors of Wannihamy Wawlekam. Whereas the2nd defendant had stated from whom he inherited namely fromAppuralalage Banda his grand father. Thus the onus was on plain-tiff-respondent and 1st defendant-respondent to prove otherwiseand support this pedigree which they have failed to do. In view oflack of any evidence as to the predecessor in title of WannihamyWawlekam the only conclusion the learned District Judge couldhave arrived was to accept the pedigree of 2(a) defendant-appel-lant and 3rd to 10th defendants-respondents which show the pre-decessors in title to Wannihamy Wawlekam. Therefore he submitsthat without proper reasoning the learned District Judge hasanswered issues 16 to 18, 24, 25, 29 and 30 in favour of the plain-tiff-respondent.
While conceding that there is no proof as to how WannihamyWawlekam became the original owner it is also true that there is noproof as to how Appuralalage Banda the 2nd defendant's grandfather became the original owner of the land to be partitioned.There is also no proof that Appuralalage Banda is the father ofWannihamy Wawlekam. In any event, the plaintiff-respondent'sposition was that Wannihamy Wawlekam had been in possessionof the land to be partitioned for a long time. Under cross examina-tion it was put to the plaintiff-respondent that Appuralalage Banda
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the original owner as claimed by the 2nd defendant had 3 childrento which she answered that she does not know. Although this posi-tion was put to her no proof was adduced that the saidAppuralalage Banda in fact had 3 children. The learned DistrictJudge himself adverts to this omission.
The only evidence led by the 2(a) defendant-appellant toestablish that-Appuralalage Banda was the original owner was thatof her own evidence. The only other witness called by her wasHerath Banda who claimed to be a son of Tikiri Hamy who was said 230to be a brother of Wannihamy the original owner in the plaintiff-respondent's pedigree does not say in his evidence thatAppuralalage Banda is the original owner but goes on to say thatthe original owners of the land were Wannihamy Wawalekam,Herath Hamy and Tikirihamy. Other than the ipsi dixh of the 2(a)defendant-appellant no other evidence either oral or documentaryevidence viz. birth or death certificate etc, was produced to estab-lish the position taken by the 2(a) defendant-appellant. Surprisinglythe 2nd defendant himself admits that he also gets title derivingfrom Wannihamy Wawalekam thereby accepting that Wannihamy 240Wawalekam was an owner.
On an examination of the evidence led in this case it appearsthat the learned District Judge has come to a correct finding inaccepting the pedigree of the plaintiff-respondent. Counsel for the2(a) defendant-appellant submits that the learned trial Judge in hisanalysis noted the incompleteness of the pedigree of the plaintiff-respondent in his judgment at page 223 of the brief. However on anexamination of the judgment it is to be seen that p. 223 of the briefcontains only a recital of evidence and not any observation or find-ing by the learned District Judge.250
As for occupation of the land and prescriptive claim of the 2nddefendant the position taken by him is that the other co-owners tothe land in suit gave him their rights and told him to possess theland and accordingly he was in possession of the land from 1957.However 2(a) defendant-appellant admits in her evidence thatthere are a number of others who have rights to this land. The twodocuments produced by the 2(a) defendant-appellant to prove hispossession was the acreage levy receipt for the year 73/74 inrespect of Pahala Elapatha marked V2 which is dated after the
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institution of this action. On the other hand, evidence revealed that,on the death of Wannihamy Wawalekam his rights devolved on hisheirs and they in turn owned and possessed the land in common.In fact as stated earlier the 2nd defendant himself was a co-ownerand there is no evidence of any ouster of the other co-owners bythe 2nd defendant.
The case of Sideris v Simoni8) was an action between co-owners where the question arose as to. whether a presumption ofouster may be made from long continued undisturbed and uninter-rupted possession. Howard, C.J. in considering a series of judg-ments on the subject decided that such a fact would depend on thecircumstances of each case. It was held that without any proof ofany act which amounts to an ouster a secret intention in the mindof a person who claims prescriptive title cannot put an end to theco-owner's co possession.
In Maria Perera v Albert Pererai7) G.P.S. de Silva, J. held:
“That the possession of a co-owner would not becomeadverse to the rights of the other co-owners until there is an act ofouster or something equivalent to ouster”.
Again, in often cited Privy Council decision in Corea v IserisAppuhamyl8) it was observed:
“That the possession by a co-heir enures to the benefit of hisco-heirs. A co-owner's possession is in law the possession ofhis co-owners. It is not possible for him to put an end to thatpossession by any secret intention in his mind. Nothing sort ofouster or something equivalent to ouster could bring aboutthat result. The whole law of limitation is now contained inOrdinance No. 22 of 1871”.
On an examination of the evidence led in this case and thejudgment entered, it appears to me that the learned District Judgehaving analysed and evaluated the evidence placed before himhad on a balance of probability come to a correct finding. The judg-ment is well supported by evidence and is not perverse. It is also tobe seen that the matter that the learned District Judge was calledupon to decide were purely questions of fact. In deciding thesequestions of fact the learned District Judge was in a better position
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than me and had the advantage of seeing, hearing and observingthe demeanour of the witnesses who were called to testify to thematters in issue.
In the case of Fraddv Brown & Co. Ltd9) the head note reads:“Where the controversy is about veracity of witnesses, 300immense importance attaches not only to the demeanour ofthe witnesses but also to the course of the trial, and the gen-eral impression left on the mind of the Judge of first instance,who saw and noted everything that took place in regard towhat was said by one or other witness. It is rare that a deci-sion of a Judge of first instance upon a point of fact is over-ruled by a Court of Appeal”.
In Alwis v Piyasena Fernando^0) Per G.P.S. de Silva, C.J.
"It is well established that findings of primary facts by a trialJudge who hears and sees witnesses are not to be lightly dis- 310turbed in appeal”.
In the circumstances, I see no reason to interfere with thejudgment of the learned District Judge. Accordingly the appeal willstand dismissed with costs fixed at Rs. 5000/-.
DISSANAYAKE, J. – I agree.
Appeal dismissed