SEELAWATHIE AND OTHERS

Vs.

PIYARATNE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA,J.
CALA/507/2006
CALA/512/2006
CA/REV/1639/2002
DC PANADURA457/P

Partition Law, No. 21 of 1977, sections 5, 25(1), 48(3), 48(4)-Duty of the District Judge in a partition action-Miscarriage of justice-Articles 138 and 145 of the Constitution-Revisionary jurisdiction of the Court of Appeal-Civil Procedure Code, sections 27(2), 28, 753

The plaintiff filed action to partition the land among himself and the 17 defendants named in the plaint. Of them, only the 17th defendant was living on the land. After the preliminary survey, the number of defendants increased to 34 with new claimants who were living on the land.

According to section 5 of the Partition Law, a person need not have a prima facie right to or interest in the land to be made a party to the case. Every person who claims to be entitled to some interest in the land, not necessarily soil rights, shall be made a party. The failure of the plaintiff to name such claimants as parties to the case in the plaint is a violation of the said section.

Although the added defendants filed their statements of claim mainly seeking the exclusion of separate lots depicted in the Preliminary Plan, all the contesting defendants were absent on the date of the trial and

the registered Attorney for most of them informed the court that he had no instructions.

Nevertheless, the trial proceeded, with several misleading and inaccurate admissions being recorded including that all the parties agreed that the land depicted in the Preliminary Plan was the land to be partitioned. The plaintiff gave evidence and the trial concluded. Not a single question was asked from the plaintiff either by the judge or any other party. Thereafter, a brief judgment was pronounced partitioning the land as set out in the plaint among the plaintiff and the 1st-17th defendants, with the entitlement for improvements as claimed before the surveyor. There was no mention of the claims of the contesting defendants.

After the Interlocutory Decree had been entered, a commission was issued to prepare the final scheme of partition. The surveyor returned the commission stating that he was unable to execute it as several defendants who had not got any soil rights from the judgment were living on the land.

Thereafter, several defendants and third parties sought special leave to establish their title to the land under section 48(4) of the Partition Law, which was rejected by the District Judge. Three separate parties filed two leave to appeal applications and one revision application before the Court of Appeal against the said order. All three matters were amalgamated and decided together.

Held:

1. Section 25(1) of the Partition Law mandates the District Judge trying a partition action to examine the title claimed by each party in relation to the land to be partitioned. The District Judge shall do so independently of what the parties may or may not say. This is because partition actions are not actions in personam, where only the parties to the action are bound by the judgment, but actions in rem, where not only the parties to the action, but also others who are not parties are bound by it.

2. Hence, a District Judge trying a partition action cannot be found fault with for being overly cautious, circumspective or jealous in investigating title to the land and looking beyond what has been presented before the court by way of pleadings, evidence or otherwise in order to be absolutely satisfied that inter alia all the necessary parties are before the court and there is no collusion among them.

3. Notwithstanding that Interlocutory Decrees and Final Decrees of partition shall have final and conclusive effect, the powers of the Court of Appeal by way of revision and restitutio in integrum are unaffected when it is found that the proceedings are tainted with a fundamental vice warrantin