SCHEME OF PARTITION- WHAT SHOULD BE THE CORRECT APROACH SCHEME OF PARTITION-GENERALLY THE COMMISSIONERS VALUATION SHOULD PREVAIL OVER OTHER VALUATIONS-COMMISSIONERS VALUATION NOT TO BE SLIGHTLY DISTURBED UNLESS FOR CONVINCINGLY GOOD AND VALID REASONS

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SCHEME OF PARTITION- WHAT SHOULD BE THE CORRECT APROACH

SCHEME OF PARTITION-GENERALLY THE COMMISSIONERS VALUATION SHOULD PREVAIL OVER OTHER VALUATIONS-COMMISSIONERS VALUATION NOT TO BE SLIGHTLY DISTURBED UNLESS FOR CONVINCINGLY GOOD AND VALID REASONS


This is an appeal arising from an order made in a scheme inquiry in a partition case.  The impugned order is at page 201 and dated 25.07.1996.  We have heard  Counsel for the appellants. One of the grounds of appeal urged by the Counsel for the plaintiff-appellant is that the learned District Judge erred when he held that the Commissioner’s  Valuation  should prevail over the valuation submitted by the surveyor made on a commission taken by the  plaintiff-appellant. It is the general practice of a Court of law in a partition case to give preference to the valuation of the Court Commissioner in a partition case over and above the valuation made on a commission obtained by one of the litigants unless there were good reasons to deviate form that practice.  As we find on the material placed before us and on the submissions made that there are no reasons to deviate from the normal practice in the instant case. 

Therefore  we have decided to dismiss the appeal of the plaintiff-appellant.  At the same time with regard to the 1st defendant-appellant we wish to state that the findings of the District Judge on facts with regard to the width of the road should not be disturbed  lightly on trivial grounds, which decision was reached on the data and the report of the Court Commissioner. There too the usual practice is to consider the Commissioner’s report favourably over and above any other commission taken at the instance of a  party unless, there were very good reasons to do so. Once again we do not find any reasons to interfere with the findings of the learned District Judge arrived  in the scheme inquiry and we dismiss the appeals of the plaintiff-appellant and the 1st defendant-appellant                                                                                                   W. L. R. SILVA, J
                                                                                                                                                               JUDGE OF THE COURT OF THE APPEAL           
A.W. A. SALAM, J.
         I agree.                 
                                                                                                                             
JUDGE OF THE COURT OF THE APPEAL

                    END OF THE JUDGMENT


   OTHER DETAILS

Uduwage Don Gamini Abeyratne of
Wilegoda, Kalutara North.
                Substd.-Plaintiff-Appellant
C.A.  No. 433 /96(F) - A                 
D.C. Kalutara No. 4435/P
Vs.

Kumbalathara Arachchige Bodhi Sumana Kumbalathara of
No.48, Horana Road,
Wilegoda,
Kalutara North
And others
                Defendant-Respondents
                                                                              

BEFORE                                : W. L. R. SILVA, J. &
A.      W. A. SALAM, J.

COUNSEL                             : Rohan Sahabandu for the Plaintiff-appellant in   C.A.No.433/96A.
                                                 Rajan Gooneratne for the 1st Defendant-appellant i C.A.No.433/96B.
                                                 Respondents absent and unrepresented.
ARGUED AND
DECIDED ON       :               15th December, 2009

                                                                ********

Kwk/=

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