MOHAMED AND OTHERS

VS.

MISRIYA

SUPREME COURT
SISIRA DE ABREW,J.
ANIL GOONERATNE. J.
VIJITH MALALGODA, J.
SCAP 110/2014
SC SPL LA 28/2014
CA 534/1995(F)
DC KALUTARA 3368/L
AUGUST 15, 2014
JUNE 08, 2015
NOVEMBER 2, 2017.

Partition law - Sections 46, 53 - Partition Ordinance Section 8,9-10 of 1863 - Partition Act 16 of 1951 - Section 54 - Civil Procedure Code Sections 289, 337 - is it necessary to execute a Fiscal's Conveyance subsequent to a decree of sale for title to pass?

HELD:

(1) The Partition law comprises both the substantive law and procedural law.

(2) There is no necessity to resort to the provisions of the Civil Procedure Code, especially under Section 289 of the Civil Procedure Code.

(3) The Partition law recognizes that the certificate of sale is conclusive evidence of the title.

APPEAL from the judgment of the Court of Appeal.

Cases referred to:

(1) Cathirihamy Vs Babahamy 11 NLR 20
(2) Bandara Vs Baba 18 NLR 1
(3) Cinemas Ltd. Vs Ceylon Theatres Ltd. 67 NLR 97
(4) Samarakoon vs. Punchi Banda 78 NLR 525
(5) Aserappa vs. Jokino Jouse (1915) 1 CWR 133

Hemasiri Withanachchi with Shantha Jayawardena for the substituted 1st Plaintiffs
Respondent and 2nd Plaintiff Respondent Appellant

Kumaran Aziz with Ershan Ariyaratnam for the substituted Defendant Appellant Respondent

Cur.adv.vult.

November 22,2017.

ANIL GOONERATNE J.

This was an action filed in the District Court of Kalutara for a declaration of title in favour of the Plaintiffs that the land depicted as lot 'G' in plan 4344 together with the house formerly bearing Assessment No. 2464 and presently Assessment No. 181 belongs to the Plaintiffs, and ejectment of the Defendants with all those holding under the Defendants and delivery of possession to the Plaintiffs. In brief the Plaintiffs claim and trace title from their predecessor in title who was one Omer Lebbe Marikar Mohamed Ismail. The said O.L.M. Mohamed Ismail by virtue of a certificate of sale executed in D.C Kalutara partition case No. 15312 became the owner of the land in dispute described as "Kundagodawatta" alias 'Kundagoda Tottam'The said O.L.M. Mohamed Ismail by Deed No. 4932 of 19.11.1953 conveyed to 1st Plaintiff his rights to the land in dispute which he purchased from a sale relating to a partition case, as aforesaid. The 1st Plaintiff by Deed No. 11845 dated 02.04.1973 conveyed 1/4th share of his rights and the entire rights of the house standing thereon to the 2nd Plaintiff his daughter.

The Defendant on the other hand plead that his predecessors were in possession of the land in dispute for generations and were never in possession under the leave and licence of the Plaintiffs. Paragraphs 6 to 9 of the amended answer shows the chain of title as to how the Defendant got ownership to the land in dispute. The Defendants further plead that by uninterrupted long term possession of the land in dispute along with the house standing thereon, indicates that Plaintiffs have no title to the said land. Defendant also plead that the final decree has not been entered in D.C. Kalutara Case No. 15312 and sale as relied by the Plaintiffs has not taken place as pleaded in the amended plaint. It was the position of the Defendant party that the Plaintiffs are not entitled to the benefit of a certificate of sale in the absence of a Fiscal's Conveyance which the Plaintiffs do not have. Defendant relies on Section 289 of the Civil Procedure

Code which requires a Fiscal's Conveyance subsequent to the sale of the property in dispute and confirmation of the sale by court.

The only point for decision in this case is whether the certificate of sale confers valid title on the successful purchaser, at a sale held according to the provisions of the Partition Law. At this point in this Judgment I have to mention that prior to the present Partition Law of 1977, we had from earlier times the Partition Ordinance No, 10 of 1863 and Partition Act No.16 of 1951. The