M. Sampath K. B. Wijeratne J.

The Plaintiff, who is now deceased, instituted the present action to partition the lands called “Waliliyadda Kumbura” containing buildings bearing assessment numbers 56 and 57, and “Waliliyadda” in an extent of 4 perches and containing buildings bearing assessment numbers 53 and 54, more fully described in the schedule to the plaint as Land 1 and Land 2, respectively. Upon the issuance of a commission, A.A.S. Amarasekara, Licensed Surveyor, carried out a preliminary survey and tendered Plan No. 1523 along with the corresponding report. Thereafter, the 5^th Defendant moved for a commission to the Surveyor General, who tendered Plan No. B/Court/2006/506 along with his report.

The Plaintiff contended that the two lands were once owned by Budagoda Arachchilage Don Aron Wijewardhana Appuhamy, who transferred the first land described in the schedule to the plaint by Deed No. 33828 dated June 4, 1946, attested by G.B. Samaranayaka, Notary Public, to his children: Don Chandrawansha Wijewardhana, the Plaintiff; Don Siril Wijewardhana the 1^st Defendant-Respondent-Respondent (hereinafter referred to as the 1^st Defendant); Don Alfred Wijewardhana, the 2^nd Defendant- Respondent-Respondent (hereinafter referred to as the 2^nd Defendant); Don Piyadasa alias Premawansha, the 5^th Defendant; and Don Ariyawansha Wijewardhana. It is stated that the original owner, Don Aron Wijewardhana Appuhamy, died intestate with respect to the second land described in the schedule to the plaint, leaving as his heirs the Plaintiff, 1^st Defendant, 2^nd Defendant, 5^th Defendant, and Don Ariyawansha Wijewardhana. Subsequently, Don Ariyawansha Wijewardhana died intestate, leaving his widow and his heir namely, Lalani Shanthi De Silva, the 3^rd Defendant-Respondent-Respondent (hereinafter referred to as the 3^rd Defendant), and Thilini Sachira Wijewardhana, the 4^th Defendant-Respondent-Respondent (hereinafter referred to as the 4^th Defendant).

While the action was pending, the Plaintiff passed away, and the ‘A, B and C Substituted- Plaintiffs-Appellants-Respondents’ were substituted in his place. The 5^th Defendant also passed away, and the 6^th Defendant-Respondent-Petitioner, who is the Appellant before this Court, was also substituted in place of the 5^th Defendant. (Although substituted in the room of deceased 5^th Defendant, he is referred to in the caption as the 6^th Defendant- Respondent-Petitioner.)

The only party who raised a contest was the 5^th Defendant and he tendered a statement of claim disputing solely the identity of the corpus.

At the trial, the deceased Plaintiff and the Commissioner of Court, A.A.S. Amarasekara, testified. The Plaintiff tendered the extract of the encumbrance sheet where Deed No. 33828 was registered, marked as 'පැ ' 1 and the extract of the encumbrance sheet where the second land was registered, marked as 'පැ2’. The deed itself, No. 33828, does not appear to have been formally marked in evidence; however, a copy of the deed is in the record, had been marked as 'පැ 1 (අ)’. The learned District Judge, having observed this defect in the production of the deed, nevertheless considered the deed as it was filed of record. None of the parties invited the learned Judges of the Civil Appellate High Court, or this Court, to reject the deed on the basis that it was not properly marked and produced.

Accordingly, I see no reason to disregard Deed No 33828.

At the trial, preliminary Plan No. 1523 together with its corresponding report were marked as 'පැ3’ and 'පැ3’ (අ), respectively. The Plaintiff, during his testimony, at one point sought to mark the plan made by the Surveyor General but immediately withdrew the initiative. The 1^st to 4^th Defendants chose not to lead any evidence. The widow of the original 5^th Defendant gave evidence at the trial regarding the extract from the assessment register pertaining to buildings Nos. 53, 54, 56, and 57 issued by the Municipal Council, which was produced as document marked ‘5වි1’.

It appea