Partition
APLICATION FOR REVISION
AND/OR RESTITUTIO IN INTEGRUM- PETITIONER HAD NO RIGHTS IN THE CORPUS-
MAINTAINABILITY
CA 215//2002
DC Kandy 125781/P
D.A.S.K.
Dissanayaka,
Vs
M.R.Prema Lal de
Charles,
Dr F.A.Sunil Cooray for
the petitioner and Nihal Jayamanne PC with Ajith Munasingha for the substituted
plaintiff-respondent.
Decided on: 17.03.2009
A.W.Abdus Salâm, J.
The petitioner has
filed the present application in revision to have the trial proceedings in
partition action No 12578/P in the district Court of Kandy and the judgment and
interlocutory decree entered in the case set aside and to obtain an order of
court to have the petitioner added as a party defendant in the action. He also
seeks an order from this court for a reasonable opportunity to file a statement
of claim and to take other steps to contest the partition action.
When the matter was
taken up for argument on 30 January 2009, the learned president's counsel of
the substituted plaintiff-respondent raised a preliminary objection with regard
to the purported rights of the petitioner to have and maintain the present
application for revision and/or restitutio in integrum, inasmuch as the
petitioner had no locus standi to maintain the application as he had no rights
in the corpus at the time or prior to the entering of the judgment and
interlocutory decree.
The
plaintiff-respondent instituted the partition action to have the corpus partitioned
between him and the 1st defendant-respondent in the proportion of 2/3 and 1/3.
The 2nd defendant-respondent has been made a party to the partition action as
she was attempting to enter the corpus without any manner of title. The 1st and
the 2nd defendants filed a joint statement of claim and prayed inter alia that
they be given an equitable portion of the subject matter together with the
buildings and Plantations standing thereon.
At the commencement of
the trial the parties informed the learned district Judge that there was no
contest with regard to the identity of the corpus and that they were agreed to
have the land depicted in the unnumbered plan dated 8th September 1911 shown by
way of superimposition on the preliminary plan No 590 dated 21st April 1992
marked as X be treated as the subject matter of the partition action. Pursuant
to the said agreement, the plaintiff testified as to the devolution of title as
averred in the plaint.
At the conclusion of
the trial, the learned district Judge delivered his judgment accepting the land
shown by the superimposition in red lines as the subject matter of the
partition action and directed that the corpus be partitioned between the
plaintiff-respondent and the 1st defendant respondent in the
proportion of shares, referred to by the plaintiff respondent in his evidence.
The petitioner in his petition has attempted to make out that the plaintiff had
not disclosed deed No 9747 as being a material deed with regard to the devotion
of title, even though by deed No 593 dated 3 September 1991 (pending partition
deed) the plaintiff has purchased from the 1st defendant's and his brother
somadasa's right title and interest that will be declared entitled to them by the
final decree to be entered in this action. The petitioner
states that in deed No 593, the vendors have recited title from deed No 9747
dated 12 October 1916 and therefore a party cannot be unaware of the said deed recited
as being the source through which the vendors in deed No 593 have acquired
title.
The position of the
substituted plaintiff-respondent is that deed No 593 deals with two lands and
on a reading of the schedule to the deed it is quite clear that the 2nd land
described in the schedule to the said deed is the subject matter of the
partition action and the first land has no relevance whatsoever to the corpus.
In other words, the substituted plaintiff respondent maintains that he has
acquired title to 2nd land dealt in deed No 593, by purchasing the right title
and interest that would be allotted to the 2nd named vendor Samarasingha.
The substituted
plaintiff respondent has submitted that the deeds marked as C1, C2 and C3
referred to in paragraphs 17 and 18 of the petition were not pleaded in the
joint amended statement of claim of the 1st and 2nd defendants and
therefore the relevance of the said deed was not a matter that was required to be considered in the
lower court and the petitioner is now attempting to set out a false claim to
the land and delay the conclusion of the partition action.
As a matter of fact the
1st and the 2nd defendants in their amended statement of claim dated 4.9.1995
filed in the district court took up the position that Abraham Appu was entitled
to lot B described in the schedule to the said amended statement of claim by
virtue of the final decree entered in partition case No 25071 D.C Kandy and
decree entered in the court of request of Gampola in action No. 116.In terms of
the said amended statement of claim the rights of Abraham has finally devolved
on Bambarende Don Kalyanawathie Wanigaratne (2nd defendant-respondent), do- Gunawathie, do- Francis, -do- Arthur and
–do- Badra. By way of relief the 1st and the 2nd defendant-respondents have
sought that they be given an equitable portion of the land.
By paragraph 21 of the
petition the petitioner has accepted the devolution of title of Abraham Appu to
Podihamine whom the petitioner says became the sole owner of the property on
deed No.2639 dated 9th August 1949 mentioned in their amended statement of
claim filed before the learned district judge.
Even though in the amended
statement of claim the 1st and the 2nd defendants had stated that
the rights of Podihamine devolved on the collaterals namely, Ema Nona
Gunawardena and Ariyadasa Gunawardena, the petitioner is now trying to state by
paragraph 24 of the petition that the said
Podihamine died on 1.10.1984 leaving an administrable estate and in fact was
administered in D.C.Kandy case No.3236/T and one Helanhamy was granted with the
letters of administration and she (Helanhamy) thereafter by deed No.252 dated
3.5.1994 has transferred the corpus to
D.A.Kusumalatha Malani
who is a sister of the petitioner. In the same breath the petitioner has
attempted to say that the said Kusumalatha Malani by deed No.13805 dated
24.9.1998 attested by G.Premaratne N.P. has transferred the rights in the
corpus to the petitioner and accordingly the petitioner is the sole owner of
the corpus.
A salient defect in the
petitioner's case appears to be paragraph 21 of the petition where he has
accepted the devolution of title of Abraham as set out in the joint statement
of claim of the 1st and 2nd defendants up to the point they say Podihamy became
the sole owner of the subject matter on deed No 2639. By the averment in
paragraph 21 of the petition, the petitioner is now trying to further espouse
the cause of the 1st and 2nd defendants despite the fact that they were parties
in the partition action and they failed to challenge the judgment entered in
the partition action.
The judgment in the
partition action has been entered on 12 March 1997. According to the petitioner
the rights of Podihamy had devolved on Helanahamine and the latter had
transferred it to the sister of the petitioner on deed No 252 in the year 1994.
More significantly the petitioner is alleged to have acquired title from his
sister on deed No 13805 on 24 September 1998. According to the Journal entries
produced in this application the partition action has been instituted on 23
August 1990. Thus, it is crystal clear that the petitioner has based its title
on a deed executed in 1998, namely almost 8 years after the institution of the
partition action and 1 year and 6 months after the entering of the judgment.
Admittedly the petitioner was not a party to the partition action at the time
when the interlocutory decree was entered. Therefore it reveals that the
petitioner had no rights to the property at the time the interlocutory decree
was entered. As the petitioner was not a party to the partition action at the
date of the interlocutory decree, it has been submitted by the president's
counsel that the petitioner cannot be considered as a party aggrieved by the
interlocutory decree, since no decision has been made against him in the
partition action.
Undoubtedly it
disentitles him to contest the interlocutory decree.
In this respect the
judgment of this court in case No CA 329/02 (Don Saranadasa Ranasingha Vs
Samanthi Sulochana Gunasekera) applies to this case, being a decision made
almost on identical facts to this application.
In the said judgment
citing Perera, J in Perera Vs Wijewikrama 15 NLR 411, Wimalachandra J,
reiterated the following passage.
"I
am of the opinion that the remedy of restitutio in integrum can only be availed
of by one who is actually a party to the contract or legal proceeding in respect of
which restitution is desired" (page 413).
The Learned President's
Counsel has submitted that special leave sought to challenge the decision in
Don Saranadasa Ranasingha Vs Samanthi Sulochana Gunasekera has been refused by
the Supreme Court in application No SC (Spl) LA 161/06 by SC minutes dated 23
May 2007.
For the foregoing reasons,
I am of the view that the preliminary objection raised against the
maintainability of the revision application should succeed. Hence, the
application made in revision by the petitioner stands dismissed subject to costs.
Judge of the Court of
Appeal
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