A.L. Shiran Gooneratne J.

The original Plaintiff-Respondent-Appellant (hereinafter referred to as the Plaintiff) instituted this action against the original 10^th Defendant-Appellant-Respondent (hereinafter referred to as the 10^th Defendant) in the District Court of Elpitiya to partition a land called ‘Iddagoda Owita’ in extent 5 acres, morefully described in the schedule to the amended Plaint dated 18/05/1994. In the pleadings, the Plaintiff specifically denied that the 10^th Defendant had any rights over the corpus to be partitioned.

In the answer dated 25/07/1990, the 10^th Defendant disclosed several parties seeking to intervene, purportedly claiming long possession of the land and also stated that Lot 3 shown as a roadway in Plan No. 2808 does not form part of the corpus.

At the conclusion of the trial the learned District Judge by Judgment dated 29/11/2004, inter alia, identified the land depicted in Lot 1, 2 and 3 in Plan No. 2808 as the corpus to be partitioned.

Aggrieved by the said Judgment, the 10^th Defendant preferred an appeal to the Civil Appellate High Court of Galle. The Appellate Court by its Judgment dated 12/03/2014, set aside the Judgment of the District Court and held that the learned District Judge has failed to identify the corpus and therefore, the Plaintiff is not entitled to a judgment in terms of the Partition Act.

The Plaintiff is before this Court to set aside the said Judgement dated 12/03/2014.

This Court by Order dated 21/09/2016, granted Leave to Appeal in terms of paragraph 15(a) of Petition of Appeal dated 08/04/2014, which states as follows;

“once the parties admit the corpus sought to be partitioned, at the commencement, are the parties required to adduce evidence to identify the corpus, notwithstanding the admission.”

The Plaintiff’s position is that at the commencement of the trial all parties including the 10^th Defendant admitted that Lots 1, 2 and 3 in the Preliminary Plan No. 2808 dated 29/10/1989, made by licenced surveyor D.G. Mendis marked ‘X’, form the corpus of the land sought to be partitioned. It was contended that when the corpus to be partitioned is identified and admitted by the parties, then the Court should act upon the said Preliminary Plan and thereafter no onus is cast upon the parties to adduce further evidence to establish that the said plan relates to the corpus sought to be partitioned.

The 10^th Defendant’s appeal against the Judgment of the District Court was on the basis that the admission of the Preliminary Plan No. 2808, dated 29/10/1989, marked ‘X’ made by licenced surveyor D. G. Mendis was misinterpreted by the District Court. The 10^th Respondent claims title to a land called “Iddagoda Owita Pahala Kaballa”. In paragraph 2 of the answer of the 10^th Defendant, the boundaries of the said land are described as “Iddagoda Owita Pahala Kaballa”. In the same paragraph, it is admitted that the said land is morefully depicted as Lot 1, 2 and 3 of the said Preliminary Surveyor Plan No. 2808. The pleaded case of the 10^th Defendant was that the land described as “Iddagoda Owita Pahala Kaballa” was within the land described in the Preliminary Plan.

On 23/02/1999, when the admissions were recorded, all parties including the 10^th Defendant explicitly admitted that Lot 1, 2 and 3 in Plan No. 2808 forms the corpus of the land sought to be partitioned.

The admissions recorded on the said date reads as follows;

The 10^th Defendant’s claim on the land to be partitioned is grounded on Deed No. 9877 dated 04/01/1927. In cross examination, answering a preliminary question of fact, the 10^th Defendant admitted that the property called “Iddagoda Owita comprise of “Iddagoda Owita Pahala Kaballa”, “Iddagoda Owita Ihala Kaballa” and the centre road which forms the corpus to be partitioned. Thereafter, on several occasions during cross examination the 10^th Defendant admitted that the land surveyed was the correct land and it consists of extent 5 acres 8 perches. The 10^th Respondent also admitted the define