JUDGMENT

R. Gurusinghe, J.

1^st to 4^th petitioners filed this Revision and Restitutio-in-Integrum application against the plaintiff-respondent and defendant-respondent, seeking inter alia to dismiss the case bearing no. P/8477 in the District Court of Kalutara, set aside the judgment dated 19-08-2020 of the Learned Additional District Judge marked P1, interlocutory decree dated 19-08-2020 marked P2, final decree dated 25-11-2020 marked P3, and to cancel lis pendens registered in folio C199/4, C228/6, C228/102 and C228/67, which are registered under the partition action bearing no. P/8477 of the District Court of Kalutara.

The plaintiff respondent (plaintiff) filed a partition action bearing No. P/8467 seeking to partition four lands described in the schedule to the plaint, produced in this application by the petitioner marked P4. The petitioners are not parties to the said P 8467 action.

In Perera vs Wijewickrama 15 NLR 411, Pereira J. held 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.”

Menchinahamy vs Munaweera 52 NLR 409 held as follows;

The remedy by way of restitutio in integrum is an extraordinary remedy and is given only under very exceptional circumstances. It is only a party to a contract or to legal proceedings who can ask for this relief. The remedy must be sought for with the utmost promptitude. It is not available if the applicant has any other remedy open to him.

The petitioners were not parties to the original case, and therefore, they cannot seek relief under Restitutio-in-Integrum proceedings.

The petitioners have not clearly set out the devolution of title to the petitioners. In a partition action, a party must set out the nature and the extent of their right, share or interest in the land which the action relates to. If a party disputes any averment in the plaint relating to the devolution of title, he should file a pedigree showing the devolution of title.

Section 19(1)(a) of the Partition Law is as follows;

(a) any defendant in the action may file or cause to be filed in court a statement of claim setting out the nature and extent of his right, share or interest to, of or in the land to which the action relates and shall, if he disputes any averment in the plaint relating to the devolution of title, file or cause to be filed in court, together with his statement of claim, a pedigree showing the devolution of title;

In paragraph 1 of the petition, the petitioner states that “the petitioners are some of co-owners of the corpus/subject matter of the partition action bearing no.P8477 of Kalutara District Court, even though they were not made parties to the said action.” In paragraph 41 of the petition, petitioners state “that they are some of the heirs of the deceased Geekiyanage Manis Silva and thus they have entitled or some land scheduled to the plaint.” In the same paragraph, the petitioners also state that they have no claim over the 3rd item in the schedule to the plaint. Further in the same paragraph, petitioners state that “the 3^rd and 4^th petitioners have in rem, title over a portion of item 4 of the schedule to the plaint.”

The respondents have stated that although the land described in the 4th schedule was included in the plaint, that land was not surveyed when the preliminary plan was prepared. The land described in the 4^th schedule to the plaint is not a land adjoining the other three lands.

The plaintiff-respondents stated that “by petition dated 13-09-2021, moved the original court i.e., the District Court of Kalutara to cancel/revoke the lis pendens registered in folio bearing no. C 228/67 entered in respect of District Court case bearing No P 8477, and pursuant to supporting the said application on 23-09-2021, the Learned District Judge being satisfied of the submission made Order directing the Land Registrar General of Kalutara to revoke/cancel the said lis pendens relating to t