Identification of the corpus in a partition action
AMENDMENT OF INTERLOCUTORY DECREE-INSUFFICIENT
EVIDENCE
This is an application
to revise and set-aside the judgement and interlocutory decree dated 11th
November 2003 entered in the above case. The facts briefly are that the parties
agreed to have the corpus in the action partitioned in terms of the evidence
led at the trial without any points of contest being raised. The plaintiff respondent,
2nd defendant-respondent and the 4th defendant-petitioner gave evidence at the
trial. Subsequently judgement was entered followed by an interlocutory decree
to have the corpus partitioned. Accordingly, the 4th defendant-
petitioner was declared entitled to purchase an extent of 10 perches of land
from and out of the rights of the plaintiff-respondent so as to include the
buildings marked as “1, 2 and 3”.
Subsequently, the 4th
defendant-petitioner made an application
to have the interlocutory decree amended, on the basis that the plantations he
was declared entitled to had not been ordered to be included into the lot to be
allotted to him. The learned district Judge by his order dated November 11,
2003 refused the application on the basis of section 33 and 34 of the Partition
Act. According to the learned judge, the improvements to which the 4th
defendant-petitioner has been declared entitled to have been directed to be included
into his lot as far as practicable and in the event of the said petitioner not
getting the improvements or part thereof is entitled to compensation under
section 34 of the Partition Act.
The impugned order of
the learned district Judge does not appear to be contrary to law or
inconsistent with the evidence led at the trial. In any event the 4th
defendant-petitioner has failed to adduce any exceptional circumstances to warrant the conclusion that
the judgement and interlocutory decree should be revised.
For the foregoing
reasons, I see no grounds whatsoever to interfere with the judgement,
interlocutory decree and the order dated November 11, 2003. Hence the revision
application filed by the 4th defendant-petitioner stand dismissed
subject to costs.
Judge of the Court of Appeal
786 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 this 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 upon 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 lis 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.
A
Deails of Judgment
No: C. A. No: CA 254/ 2004
DC Horana: 48/99P
Mahawattage Don Chandrasekara,
4th Defendant-Petitioner
Vs
Mahawattage Don Nandasena –
Counsel : Jacob Joseph for the 4th Defendant-Petitioner
and Asoka Serasingha for the Respondents
A W A Salam J
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