M. Sampath K. B. Wijeratne J.

Background

The Plaintiff–Respondent–Petitioner–Appellant (hereinafter referred to as the Plaintiff–Appellant) instituted this action in the District Court seeking to partition the land known as “Bulugahawatta.” After taking the preliminary steps, including the registration of lis pendens and the service of summons, a commission was issued to Mr. U. R. Edirisinghe, Licensed Surveyor, for the preparation of the preliminary plan. Upon executing the commission, the Commissioner tendered Plan No. 242 (marked ‘X’) together with the corresponding report (marked ‘X1’).

Upon service of summons, the 1^st Defendant–Respondent–Respondent Respondent (hereinafter referred to as the 1^st Defendant–Respondent) and the 15^th to 21^st Defendants–Respondents–Respondents–Respondents (hereinafter referred to as the 15^th to 21^st Defendants–Respondents) appeared in Court and filed their respective statements of claim. On 6^th June 1988, the 22^nd and 23^rd Defendants–Respondents were added as parties to the action, and they thereafter filed their statements of claim.

The 2^nd and 3^rd Defendants–Respondents–Respondents–Respondents (hereinafter referred to as the 2^nd and 3^rd Defendants–Respondents), the 4^th to 6^th Defendants–Petitioners–Respondents–Respondents (hereinafter referred to as the 4^th to 6^th Defendants–Respondents), and the 7^th Defendant Respondent–Respondent–Respondent (hereinafter referred to as the 7^th Defendant–Respondent) were served with summons and Journal Entry No. 10 dated 22^nd October 1986 records that Mr. Gafoor, Attorney-at-Law, had tendered a proxy on behalf of all of them. Upon tendering the proxy, Mr. Gafoor moved to file statements of claim after the return of the commission. However, a subsequent report of the Registrar of the District Court reveals that the 2^nd, 3^rd, and 7^th Defendants–Respondents had not filed any proxy.

The 12^th to 23^rd Defendants–Respondents–Respondents–Respondents (hereinafter referred to as the 12^th to 23^rd Defendants–Respondents) subsequently intervened in the action.

After the preliminary plan and its corresponding report were received, and upon completion of other preliminary steps, the case was fixed for trial. The trial was postponed on several occasions, and when the case was eventually taken up for trial, only the Plaintiff–Appellant and the 22^nd Defendant Respondent were present. The evidence of the Plaintiff–Appellant was led, and thereafter, the learned District Judge delivered judgment on 20^th February 2002, based solely on the evidence of the Plaintiff–Appellant.

In his judgment, the learned District Judge allotted a 1/12 share to the Plaintiff– Appellant and 1/12 shares each to the 8^th and 9^th Defendants–Respondents. Although he found that the 1^st Defendant–Respondent was entitled to 2/12 shares, the 2^nd to 7^th Defendants–Respondents to 3/12 shares, and the 10^th and 11^th Defendants–Respondents to 3/12 shares, such shares were not allotted as the title deeds establishing devolution of title had not been tendered to Court. A further undivided 1/2 share remained unallotted on the basis that no evidence had been led in respect of that portion.

The interlocutory decree was tendered in the first instance, and accordingly, a commission was issued for the preparation of the final scheme. In executing the commission, it was found that the interlocutory decree did not contain a specific direction regarding the entitlement to the plantation. Consequently, the Court made a further order declaring the entitlement to the plantation in accordance with the surveyor’s report attached to the preliminary plan. The interlocutory decree was thereafter amended accordingly.

The undivided 3/12 share had been left unallotted in respect of the claim of the 2^nd to 7^th Defendants–Respondents due to their failure to tender the title deed bearing No. 1118. The 3^rd Defendant–Respondent, who is a child of the 2^nd Defendant–Respondent and a sibling of the 4^th to 7^th Defendants–Respondents, thereafter made an