PARTITION-THE APPELLANTS HAVE ALSO COMPLAINED THAT THE 17TH DEFENDANT-RESPONDENT WHO GAVE EVIDENCE ON BEHALF OF THE PLAINTIFF-RESPONDENT WAS NOT IN POSSESSION OF THE CORPUS AND THAT THE QUESTIONS PUT TO HER IN EVIDENCE IN CHIEF, WERE ALL LEADING QUESTIONS WHICH SUGGESTED THE ANSWERS. AS THE APPELLANTS WERE REPRESENTED

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THE APPELLANTS HAVE ALSO COMPLAINED THAT THE 17TH DEFENDANT-RESPONDENT WHO GAVE EVIDENCE ON BEHALF OF THE PLAINTIFF-RESPONDENT WAS NOT IN POSSESSION OF THE CORPUS AND THAT THE QUESTIONS PUT TO HER IN EVIDENCE IN CHIEF, WERE ALL LEADING QUESTIONS WHICH SUGGESTED THE ANSWERS. AS THE APPELLANTS WERE REPRESENTED, WHEN THE 17TH DEFENDANT-RESPONDENT GAVE EVIDENCE AND HAD FAILED TO OBJECT TO LEADING QUESTIONS BEING PUT TO THE WITNESS, THEY CANNOT BE NOW HEARD TO COMPLAIN ON THAT MATTER. THE LAND SURVEYED AT THE PRELIMINARY SURVEY CONSISTENT WITH THE CORPUS DISCLOSED IN THE PLAINT-IDENTITY OF THE CORPUS SUCCESSFULLY ESTABLISHED. BASELESS GROUNDS OF APPEAL-RESULTING POSITION


                                               

CA  579/1995
DC Panadura 18054/P
Mestiyage Don Haramanis Gunathilaka 
Vs
Thirimanne Hettige Don Sirilina Jayasekara and several others
Defendant-Respondent


Before:   A W A Salam J                           
COUNSEL:  Mrs S Raju for the the 31st to 33rd Defendant-Appellants, N R M Daluwatta PC with Rohan Sahabandu for the Substituted-Plaintiff-Respondent 
Argued on:  01.11.2007
Decided on: 26.10.2009

                                         
A W Abdus Salam, J.

This appeal arises from the judgment and interlocutory decree entered in the above partition action. The deceased plaintiff instituted action for the partition of the land called portion of Sudanwatte alias Pelawatte. He described the corpus as a portion of a land separated off “Sudanwatte” which is also referred to as “Pelawatta”. The boundaries to the corpus as set out in the plaint are  Kahatagahawatte and Delgahawatte (ON THE NORTH) a portion of the same land (ON THE EAST) Galaudawatte and Cart Road (ON THE SOUTH) and Munamalgahawatte (ON THE WEST)  in extent about 2 Roods (80 Perches) and registered at the land registry of Panadura in B409/209. 

The plaint also referred to the said land in a different way as Sudanwatte alias portion of Pelawatte being bounded on the North and East by portion of the same land, on the South by Galaudawatte and Cart Road, on the West by Munamalgahawatte, containing in extent of about 2 Roods (80 Perches) and registered under title B143/334.

Quite unexpectedly, at the commencement of the abortive trial, the parties admitted the accuracy of the corpus, as depicted in the preliminary Plan No. 1206 dated 20 January 1983, made by B. L. D. Fernando, Licensed Surveyor and Commissioner of Court. However, the contesting defendants namely the 31st, 32nd and 33rd defendant-appellants filed an amended statement of claim after the commencement of the trial and thereafter the trial which proceeded de novo before the succeeding judge and no admission was recorded as to the identity of the corpus and therefore the plaintiff had to raise a point of contest on the identity of the corpus. At the conclusion of the trial, the learned district judge answered this point of contest in favour of the plaintiff. One of the grounds to have the interlocutory decree set aside, as relied upon by the appellants is alleged failure on the part of the plaintiff to establish the identity of the corpus. The appellants contend that the severe confusion that had resulted in relation to the identity of the corpus calls for a dismissal of the action.

The plaintiff described the corpus to be partitioned in the schedule to the plaint twice. In the first part, the land to be partitioned has been referred to as bounded on the East by a portion of the same land. The southern boundary of the corpus described at both places in the schedule as Galaudawatte and the Cart Road. The Western boundary of both lands has been described as Munamalgahawatte. Thus only the northern boundary of the two lands did not tally and in that the first land carried Kahatagahawatte and Delgahawatte as the northern boundary whilst the second land carried the northern boundary as a portion of the same land. 

The learned President’s counsel has contended that three out of four boundaries of both lands referred to in the schedule to the plaint being the same, the appellants cannot be heard to say that the land surveyed for purpose of the partition action is  not what has been referred to in the plaint. 

The contesting defendants (appellants) were quite critical of the evidence given by the surveyor, in that he was not able to give a satisfactory account of the northern boundary. Having examined the evidence placed by both parties and upon a perusal of the documents submitted, on a balance of probabilities, the learned trial judge was compelled to reject the argument relating to the non-identity of the corpus. Hence, it is my view that the learned district judge cannot be faulted for answering the point of contest relating to the identity of the land in favour of the plaintiff.

The next question that arises for consideration is whether the prescriptive claim set up by the appellants to the entire land should have been upheld. The appellants in their original statement of claim took up the position that on 3 deeds, a person by the name Mestiyage Hendrick Gunathilaka became the owner of the corpus and upon his demise the appellants became entitled to the property. However, in the amended statement of claim the above line of devolution of title was abandoned and the defendants took up the position that as stated in paragraph 20 of the plaint, one Simon Perera acquired rights in the property on deed No’s 72 of 9.10. 1932 and 20258 of 28.10.1933 (produced at the trial marked as 33D8) and he transferred his rights to Hendrik Gunathilaka, upon whose death the contesting defendants inherited their rights and that they held and possessed the property on the said rights for a period of over 50 years and thereby acquired a prescriptive title. 

The learned President's Counsel of the substituted-plaintiff-respondent in his written submissions has criticized the position taken up by the appellants, in that they have failed to disclose the source from which Simon Perera acquired his rights. Further, he contended that Hendrik Gunathilaka had married to Dilo Nona, a daughter of Seneris and Ensohamy.  Seneris is referred to in the plaint as the son of Liyanachchi Nona in paragraph 2 of the plaint. In terms of the plaint Liyanachchi Nona is a daughter of Jamis, who is the original owner of the corpus and Ensohamy who got rights on two deeds mentioned in paragraph 16 and 17 of the plaint, which rights also devolved on Delohamy and her brothers and sisters. Consequently, Delohamy admittedly being a co-owner of the corpus, the position of the contesting defendants that they have acquired a valid prescriptive title to the corpus on the basis of the rights of their father is untenable, since there had been no proof of ouster by an overt act.

It is contended on behalf of the appellants that the plaintiff in this case has attempted to partition the amalgamation of two lands. The said two lands according to the appellants are land No 1 and 4 referred to in the schedule to deed No 672 which has been produced by the plaintiff as P8 and by the contesting defendants as 33D9.

For purpose of convenience the boundaries and the description of the two lands as appearing in deed No 672 is reproduced below.

Land No 1
Name of the land: Sudanwatte alias Pelawatte
Boundaries:
North and East- portion of the same land
South: Portion of the same land and road
West: Munamalgahawatte
Extent: 1/2 an acre or 80 perches

Land No 4
Name of the land: Nothern portion of one half of Sudanwatte
North: Ketakalagagawatte
East: Portion of Sudanwatte
South: Portion of the same land 
West: Munamalgahawatte
Extent: 1 Rood and 20 perches

The position taken up by the appellants is that they were in possession of both lands No 1 and No 4 for well over 60 years without any interruptions and thereby acquired a valid prescriptive title for both lands.

The plaintiff maintains that the land sought to be partitioned is Sudanwatte alias Pelawatte which is the land described under No 1 in deed No 672. Quite significantly the plaintiff too relies on the same deed in proof of the devolution of title set out in the plaint. However, the land No 1 described in deed No 672  is in extent of only 80 perches or one half of an acre. On the other hand if the plaintiff has amalgamated both land No’s 1 and No 4 in deed No 672, the extent of both lands would be 80 perches + 1 Rood 20 perches= 140 perches. According to the preliminary plan the total extent of land surveyed is 1Rood 33.12 perches.

According to the documents produced by the plaintiff in extent of the land sought to be partitioned is given as stated below.

1.   Deed No.  4770- P1= 80 Perches
2.   Deed No.  0166- P2= 80 Perches
3.   Deed No.  4517- P3= 80 Perches
4.   Deed No.  6603- P4= 80 Perches
5.   Deed No.  1187- P5= 80 Perches
6.   Deed No.  8485- P6= 80 Perches
7.   Deed No.  3003- P7= 80 Perches
8.   Deed No.  0672- P8= 80 Perches (Land No 1)
9.   Deed No.  8834- P9= 80 Perches
10.  Deed No.  8835- P9= 80 Perches
11.  Deed No.  8834- P10= 80 Perches
12.  Deed No.  5939- P11= 80 Perches
13.   Deed No.  5937- P12= 80 Perches
14.  Deed No.  5938- P13= 80 Perches
15.  Deed No.  5919- P14= 80 Perches

According to the documents produced by the appellants at the trial, the extent of the land dealt in those deeds is set out as follows...
1.   Deed No.  20258- 33D8= 60 Perches
2.   Deed No.  00672- 33D9= 80 Perches

It would be thus seen that if both lands are amalgamated for purpose of the partition action as claimed by the appellants, the extent of the corpus should be 140 perches and if the deeds relied upon by the plaintiff P1 to P14 (P12, 13 and 14 being pending Partition deeds) the extent of the corpus would be 80 perches. Noticeably, the extent surveyed for the purpose of the action as borne out by preliminary plan No 1206 is 1Rood and 33.12 perches which is equivalent to 73.12 perches. According to the survey the land he has surveyed is consistent with the schedule given in the plaint. In the circumstances, the findings of the learned district judge that the land depicted in the preliminary plan constitutes the corpus appear to be the more probable version.

The appellants  have also complained that the 17th  defendant-respondent who gave evidence on behalf of the plaintiff-respondent was not in possession of the corpus and that the questions put to her in evidence in chief, were all leading questions which suggested the answers. As the appellants were represented, when the 17th defendant-respondent gave evidence and had failed to object to leading questions being put to the witness, they cannot be now heard to complain on that matter.

The appellants have submitted that the 17th defendant was not in possession of the subject matter and that she had failed to identify the corpus with its actual meets and bounds. In the light of the evidence given by the surveyor and the other material available in the case, learned district judge has come to the conclusion that in all probabilities the land depicted in the preliminary plan is the subject matter referred to in the plaint. The findings of the learned district judge, with regard to the identity of the corpus is mainly based on the evidence given by the witnesses including that of the surveyor who carried out the commission to prepare the preliminary plan. As the findings therefore involve the learned judge's observations with regard to the demeanour and deportment of the witnesses, I do not think that it is appropriate to interfere with the findings of the learned district judge on this matter.

The appellants have submitted that the learned district judge has failed to address his mind towards the proper identification of the land in question by names and boundaries. Since the plaintiff had failed to prove the case, counsel of the appellant submits that the more proper action to be adopted would have been to dismiss the case rather than to give judgment to partition the land on weak and vague evidence.

Upon a consideration of all the matters raised on behalf of the appellants, I do not consider the grounds urged by the appellants merit any favourable consideration to reverse the judgment and interlocutory decree or set aside the same and direct a fresh trial. As such this court has no alternative but to dismiss the appeal subject to costs.



Judge of the Court of Appeal

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