HAPUARACHCHI AND OTHERS

VS.

PODI NILAME AND OTHERS

SUPREME COURT
SURASENA, J.
KODAGODA, J.
SAMAYAWARDHENA, J.
SC/APPEAL/52/2018
SC/HCCA/LA/94/2015
SP/HCCA/KEG/860/2011/F
DC KEGALLE 25389/P
APRIL 29, 2021

Partition action-Identification of the corpus-Defendant's duty in identifying the corpus-Discrepancy in extent and boundaries- Comparison of traditional land measures with English standard equivalents-Failure of surveyor to answer whether the land surveyed is the land sought to be partitioned-Partition Law, No. 21 of 1977, sections 16(1), 16(2), 19(2), 18(1)(a) (i)

The plaintiffs filed action seeking to partition a land in extent of 15 lahas of paddy sowing area. The surveyor surveyed a land in extent of 1 acre,

1 rood and 32 perches. The main contention of the contesting 2nd to 5th defendants before the District Court was that the corpus had not been properly identified and therefore the plaintiffs' action must fail. After trial, the District Court partitioned the land depicted in the preliminary plan in accordance with the pedigree set out in the plaint. The High Court affirmed the judgment of the District Court. The contesting defendants appealed to the Supreme Court. Their main contention was that there is a discrepancy between the schedule to the plaint and the preliminary plan in terms of the extent of the land and two boundaries of the land. They also contended that the surveyor does not say in his report that the land surveyed by him is in his opinion substantially the same as the land sought to be partitioned.

Held :

1. In a partition action, if the corpus cannot be identified, ipso facto, the action shall fail. If the corpus cannot be identified, there is no necessity to investigate the title, as the title shall be investigated on an identifiable portion of land. The court shall not first investigate the title and then look for the land to be partitioned. It shall happen vice versa. The finding that the corpus has not been identified decides the fate of the case without further ado; such a finding shall only be reached after careful consideration of all the facts and circumstances of the case.

2. A partition action cannot be filed to partition a portion of the land. The entire land should be brought into the action and the co-owners of the whole corpus should be made parties.

3. The contesting defendants did not show the portion to be included in the corpus to the surveyor. Nor did they take any other steps to show the entire corpus. According to section 16(2) of the Partition Law, on the application of a defendant, the court can direct the surveyor to survey any larger or smaller land than that pointed out by the plaintiff.

4. According to section 19(2) of the Partition Law, a defendant who seeks to have a larger land partitioned shall take all steps afresh that a plaintiff in a partition action shall take, which include compliance with the provisions of sections 12-18 of the Partition Law.

5. The position of the contesting defendants before the District Court was that only part of the land had been surveyed by the surveyor whereas their position before the Supreme Court was that a land in excess of the land to be partitioned had been surveyed. This is a textbook case highlighting the unreliability of comparing ancient land measures with English standard equivalents.

6. Discrepancies between traditional land measurements and English standard equivalents is a common issue confronted by judges and lawyers in partition actions. The extent of the land in old deeds is given by way of traditional land measures based on paddy or kurakkan sowing extent without reference to a plan. The surveyor shows the extent of the land in English standard measures. The difficulties arise when the traditional land measures are compared with English standard equivalents. The common conversion tables found in various sources are