PRIYANTHI

Vs.

UMA AND OTHERS

SUPREME COURT
THURAlRAJA, J.
WENGAPPULl, J.
SAMAYAWARDHENA, J.
SC/APPEAL/2/2019
SC/SPL/LA/193/2017
CA/1391/99 (F)
DC GALLE 9556/P
JULY 20, 2021

Partition action-Partition Law, No. 21 of 1977, section 25(1)-Duty cast on the District Judge to investigate title-Voyage of discovery unnecessary.

The plaintiff filed action in the District Court seeking to partition two contiguous allotments of land as one unit. The 4th, 5th and 7th defendants sought the dismissal of the partition action. After trial, the District Court entered judgment as prayed for by the plaintiff. The appeal filed by the 4th, 5th and 7th defendants against the judgment of the District Court was dismissed by the Court of Appeal. The 4th defendant appealed to the Supreme Court. The pivotal argument of the 4th defendant before the Supreme Court was that the District Judge failed to properly investigate the title to the land and therefore the judgment of the District Court should not be allowed to stand.

Held:

1. The position of the 4th defendant before the District Court as crystallised in the issues was not clear at all. His position before the Supreme Court is no better. Since he did not seek to partition the land and only sought dismissal of the action, his contention before the Supreme Court that the District Court did not take into consideration his deeds marked 4VI to 4V10 in investigating the title to the land is irreconcilable with the relief sought. In any event the 4th defendant did not give clear evidence as to whether those deeds are relevant to the land to be partitioned and what share of the land he claims on those deeds if they are relevant.

2. It is true that under section 25(1) of the Partition Law, No. 21 of 1977, a special duty is cast upon the District Judge to investigate the title of each party to the land to be partitioned. But this does not mean the District Judge shall go after the parties pleading with them for help in investigating their title to the land, more so when the parties are represented by attorneys.

3. An attorney is duty-bound to conduct the case so as to serve the best interests of his client. When he conducts a trial, he has a strategy in place, and rightly so. He raises points of contest, marshals evidence, cross-examines witnesses etc. according to his plan. It is not proper for the judge to sabotage this plan and forcibly take control of the trial in the guise of investigating the title to the land. Such conduct on the part of the judge would violate the most rudimentary norms of justice. The role of a judge hearing a partition case is no exception to this fundamental norm.

4. A judgment entered in a partition action after a long-drawn-out and cumbersome procedure shall not be set aside with the stroke of a pen and retrial ordered causing enormous difficulties, under the popular banner "failure to investigate title", unless there is good cause for doing so.

5. This should not be taken to mean that a partition trial shall be conducted in the same manner as any other inter partes civil trial. Notwithstanding that the system of justice that prevails in our country is adversarial as opposed to inquisitorial, the role of the judge in a partition case is different and unique. The responsibility of the judge in a partition case is much greater than in an ordinary civil trial, particularly because collusive actions deprive the rights of true owners simply because partition actions are actions in rem. Collusion can take place not only when the right parties are not before court but also when they are in fact before court.

6. The 4th defendant was fully represented by an attorney throughout the trial and the District Court answered the issues with the available evidence. If the 4th defendant later thinks his deeds marked 4V1 to 4V10 are relevant to the land to be partitioned, he can make an application before the District Court to sec