MARY NONA VS. DON JUSTIN AND OTHERS

MARY NONA
VS.
DON JUSTIN AND OTHERS

SUPREME COURT
EVA WANASUNDERA, PC J.
SISIRA DE ABREW, J
ABEYRATHNE.J
SC APPEAL 174/10
SC/HCCA/LA 231/2009
WP/HCCA/KAL 8/2001 (F)
DC KALUTARA 5556/P
FEBRUARY15, 2016

Partition Law, Section 18(2), Sections 19(2). 48(1) - Investigation of Title -Imperative - Should all the issues be answered?-Identification of corpus-Civil Procedure Code. Section 187-Guidelines to be followed by Trial Courts set down - When corpus surveyed is smaller/greater in extent?

The Plaintiff Respondent Respondent instituted Partition action in respect of a land which was a consolidation of 9 lands with different names. Parties agreed as to the corpus - and there were 32 points of contest Trial Court answered issues 1 to 7 raised by the Plaintiff and did not answer the other issues. The appeal lodged with the High Court was rejected, on the ground that the corpus was identified.

In the Supreme Court it was contended by the 5th, 9th - 11th Defendants that, the corpus was not identified - that there was no investigation of title - that ail points of contest were not answered.

Held:

(1) There were 32 points of contest, but only 7 have been answered. Bare answers to issues or points of contest, arc insufficient unless all matters which arise for decision under each head arc examined.

(2) If it appears to the Supreme Court when hearing an appeal, in a partition case, that investigation of title has been inadequate it should, even though no party before it has raised the point, set aside the decree acting under the powers of revision.

(3) On receipt of the Commission where the corpus is found to be different - in extent to the corpus revealed by the preliminary survey the District Judge should follow, one of the following courses after hearing parties.

(i) To reissue the Commission with instructions to survey the land described in the plaint The surveyor could have been examined as provided in section 18(2) of the Partition Law to consider the feasibility of this course of action.

(ii) To permit the Plaintiffs to continue the action to partition the larger land as depicted in the preliminary survey. This course of action involves the amendment of the plaint and the taking of consequential steps including the registration of a fresh lis pendens.

(iii) To permit any of the Defendants to seek a partition of the larger land as depicted in the preliminary survey. This course of action involves an amendment of the statement of claim of that defendant and the taking of such other steps as may be necessary in terms of section 19(2) of the Partition Law.

(iv) The Survey or under section 18(1)(a)(iii) of the Partition Law must in his report state whether or not the land surveyed by him is substantially the same as the land sought to be partitioned as described in the schedule to the plaint Considering the finality and conclusiveness that attach in terms of Section 48(1) of the Partition law to the decree in a partition action, the Court should insist upon due compliance with this requirement by the Surveyor.

Per Eva Wanasundara. PC J

"I am of the view that in all the partition cases, the aforementioned guidelines (i-iv) should be followed."

APPEAL from the judgment of the High Court (Civil Appeals) Kalutara.

Cases referred to:

1. Dona Lucihamy Vs. Ciciliyanahamy 59 NLR 214
2. Mohamedaly Adamjee and others Vs. Hadaad Sadeen, 58 NLR 217(PC)

3. Chandrasena Vs. Piyasena 1999 3 SLR 201
4. Sopaya Silva and another Vs. Magilin Silva 1989 2 SLR 105

Rohan Sahabandu PC with S.O. Withanage for 5th 9A and 11th Defendants Appellants.

H. Withanachchi for Plaintiff Respondent and 1A Defendant Respondent Respondent

Cur.adv.vult

June 8, 2016.

EVA WANASUNDERA, PC J.

Leave to appeal was granted on 30.08.2010 on the questions of law contained in paragraph 19 (a) to (h) of the Petition dated 10th September, 2009.

The main gr

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