Partition Law, No. 21 of 1977 — Duty of the plaintiff to include all necessary parties — Substitution of plaintiff — Dismissal for default and refusal to purge
2025
Present:
Mahinda Samayawardhena, J., Sobhitha
Rajakaruna, J., and Sampath K. B. Wijeratne, J.
DIAS
v. GUNASINGHE AND OTHERS
S.C.
Appeal No. 174/2015 – HCCA/GALLE/60/2004(F) – D.C. GALLE 7040/P
Decided
on: 10th October 2025
Partition
Law — Abuse of statutory procedure — Section 5 and Section 66 of the Partition
Law, No. 21 of 1977 — Duty of the plaintiff to include all necessary parties —
Substitution of plaintiff — Dismissal for default and refusal to purge —
Whether court erred in refusing reinstatement — Locus standi of substituted
plaintiff — Laches and finality in long-pending partition proceedings.
Facts
The
plaintiff instituted a partition action in 1978 to divide a land known as
Bimpaluwewatta, claiming two-thirds share. The land, initially pleaded as 2
acres 2 roods, was later found to be only 3 roods 36.5 perches in extent and
contained many business and residential premises. Over time, 88 defendants were
added. After nearly two decades, in 1997, a second survey was conducted at
which further claimants appeared.
The
59th defendant was added in 1994 and later substituted as plaintiff on the
basis that he had acquired the original plaintiff’s rights. However, no deed
was produced to prove the alleged transfer, contrary to section 66 of the
Partition Law which prohibits voluntary alienations pendente lite. The
substituted plaintiff failed to appear at trial, and the case was dismissed for
default. His application to purge the default was rejected for want of
evidence. Both the District Court and the High Court of Civil Appeal dismissed
his applications, leading to this appeal to the Supreme Court.
Held
Per
Samayawardhena, J. — The appeal was dismissed.
The
substituted plaintiff’s locus standi was doubtful, as the purported transfer of
rights during the pendency of a partition action was contrary to section 66 of
the Partition Law. His failure to produce the deed confirming such transfer was
fatal. The case, instituted forty-seven years ago, had caused grave
inconvenience to numerous occupants and claimants. The court emphasised that
plaintiffs must strictly comply with the mandatory duty under section 5 of the
Partition Law to include all persons known or claiming to have an interest in
the property. The plaintiff’s negligence and protraction of proceedings
amounted to an abuse of process.
Principles
and Precedents (in nutshell)
Section
5 of the Partition Law — The plaintiff must include in the plaint all persons
who are known or claim to be entitled to any right, share, or improvement in
the land. Failure to do so vitiates the integrity of the action.
Section
66 of the Partition Law — Any alienation, lease, or transaction made during the
pendency of the partition case is void as against parties to the action; the
transferee cannot claim substitution as plaintiff.
Nandana
v. Jinadasa (1997 1 Sri LR 336) — Substitution is permitted only upon lawful
devolution of interest recognized by court.
Silva
v. Silva (2004 1 Sri LR 238) — The court has discretion to dismiss a case for
default if the plaintiff shows lack of diligence; restoration is not a matter
of right.
Kandiah
v. Pathmanathan (2002 2 Sri LR 82) — Laches and long delay may bar equitable
relief even in partition cases; finality must be preserved.
Punchi
Banda v. Punchi Hamy (1990 1 Sri LR 322) — Plaintiffs who fail to bring all
necessary parties before court violate the mandatory provisions of section 5.
Sinniah
v. Thanabalasingham (1985 1 Sri LR 207) — Courts must guard against misuse of
partition procedure for speculative purposes; actions filed without genuine
ownership claims constitute abuse.
Held
Further
The
court noted that the action had lost its practical utility after forty-seven
years and could not be permitted to continue. The refusal to purge default was
justified. Partition litigation must not be allowed to linger indefinitely or
to harass bona fide occupants under colour of law.
Decision
Appeal
dismissed.
No
costs awarded.
The
Court reaffirmed that non-compliance with sections 5 and 66 of the Partition
Law is fatal, and long-delayed speculative actions must be curtailed in the
interest of finality and public policy.
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