Partition- amendment of interlocutory decree

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AMENDMENT OF INTERLOCUTORY DECREE TO INCLUDE THE PLANTATION TO BE INCLUDED INTO A PARTICULAR LOT- SECTION 33, 34 AND 35 of the Act- INSUFFICIENT EVIDENCE (judgment details are appended at the foot)

 

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

 

 

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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