AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY OF THE CORPUSIMPORTANCE
AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY
OF THE CORPUSIMPORTANCE
C.A. No. 1428/2004
D.C. Negambo 2534/P
S. K. Jayaweera.
Plaintiff-Petitioner
1.Ranasingha
Hettiarachchige
Don Robert
Ranasingha
Before : A.W.A. Salam, J.
Counsel :
Dr Sunil F A Cooray with Shavindra Silva for the PlaintiffPetitioner and
Kuwera de Soyza for the Defendant-Respondents.
28.05.2009
A.W. Abdus Salam, J.
This is an application to revise the
order of the learned district Judge dated 22 March 2004 by which the point of
contest No 1, as suggested by the plaintiff- petitioner had been amended.
The facts which led to the filing of the
instant revision application are that the plaintiff instituted action to
partition the land called “Piris Yala Godella” morefully described in the schedule
to the plaint. The extent of the corpus as described in the plaint was 4 acres
2 roods and 24 perches. According to the
plaintiff the land sought to be partitioned is identical to that of the land
depicted in the Surveyor General’s title plan No 129225. However, preliminary plan prepared by the
commissioner depicted only a portion of the whole land in extent 3 Roods and
33.5 perches. According to the remark
made by the surveyor, lot 1 depicted in preliminary plan No 1409 dated 22nd
and 27th of August 1994 is a portion of the lots depicted as A and
B in final plan of partition No 1269Q
filed of record in DC Negambo case
No 11388. In the report attached to the
preliminary plan in column 5, the commissioner has categorically mentioned that
the land surveyed by him is only a portion of the land is sought to be
partitioned and set out in the schedule to the plaint.
In the circumstances, the plaintiff has
obtained a fresh commission directing the Commissioner to superimpose lot 6977
depicted in the Surveyor General’s plan No 129225. In terms of the second commission issued,
the Commissioner superimposed the plan of the Surveyor General and prepared
plan No 1409A and report attached to it.
The subsequent survey carried out by the Commissioner as per plan No
1409A, lots 1, 2 and 3 are in extent of 4 Acres 2 Roods 24 perches which is
equivalent to the extent given in the Surveyor General’s plan.
The learned counsel of the petitioner has
submitted surveyor reported that the boundaries did not exist on the ground and
that without a proper identification of the boundaries he was unable to
demarcate the same on the ground. It is
significant to note that the same Commissioner in executing the first
commission had demarcated the boundaries on the ground by means of pegs, even
though such boundaries did not exist on the ground. It is equally important to note that the
surveyor when executing the first commission has superimposed plan No 1269Q
and thereafter demarcated the boundaries on the
ground. However when he executed the second commission, without demarcating the
boundaries on the ground, the surveyor had stated that he was unable to
demarcate them without proper identification of the boundaries. In the
circumstances, the plaintiff has moved for a commission once again requiring
the surveyor to demarcate the boundaries on the ground, after the
superimposition of the crown plan. This application of the plaintiff had been
refused by court by order dated 11 November 2003.
Thereafter the trial had commenced on 22
March 2004 and the plaintiff had raised 4 points of contests. The point of
contest concerning the identity of the corpus as suggested by the plaintiff was
whether the land sought to be partitioned has been depicted in plan No 1409 A.
Upon the defendants objecting to the said point of contest, the learned
district Judge amended the same and recast the point of contest to read as
"whether the land sought to be partitioned has been depicted in plan No
1409. This has resulted in the plaintiff having to confine himself to a portion
of the land set out in the plaint
and portion of the land referred to in the lis pendends that has been
registered for the purpose of the partition action.
As regards the failure of the plaintiff
to seek and obtain leave of this court to appeal against the impugned order
within the timeframe allowed in law the plaintiff states that he was unable to
obtain certified copy of the proceedings dated 22 March 2004 and the counsel in
Colombo could not be contacted and retained as it was the April vacation of the
courts. Further the plaintiff states that he was not able to obtain certified
copies of the entire proceedings in time and therefore prevented from making an
application for leave of his court to prefer an appeal against the said order.
Having considered the application made by
the plaintiff, I'm of the view that in any event exceptional circumstances do
exist in this case to review the order of the learned district Judge made with
regard to the point of contest suggested by the plaintiff touching the identity
of the corpus.
As the plaintiff has referred to in the
plaint a land in extent of 4 Acres 2 Roods and 24 perches, the list pendends
too has been registered in respect of a land which is in that extent and the plaintiff
has caused the surveyor to superimpose the crown plan and survey the entire
extent given in the plaint with details of claims made by each party and others
who claimed rights before the surveyor, learned district Judge should have
given the plaintiff an opportunity of establishing the corpus to be what he
undertook by raising the point of contest in relation to the plan No 1409.
For the foregoing reasons, it is my
considered view that the district Judge should not have amended the point of
contest No 1. As such, acting in revision I set aside the impugned order of the
learned district Judge and direct the learned district Judge to accept the
point of contest raised by the plaintiff referring to plan No 1409A and proceed
to investigate title.
I make known as to costs.
Judge of the Court of Appeal.
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