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GUNASINGHE
vs
PODIAMMA AND OTHERS

COURT OF APPEAL
ABDUL SALAM, J.
CA 1782/2002 (REV.)
DC KULIYAPITIYA 7466/P
AUGUST 25, 2008

Partition Law - Part of a larger land partitioned? - Discrepancy in the extent in the plaint and in the preliminary plan - Investigation of title - Duty of Court - Proof of original ownership -Degree ofproof? - Lis pendens.

The petitioner seeks to revise the judgment on the ground that, the District Court had failed to take into consideration the fact that what was sought to be partitioned was a part of a larger land, and the discrepancy in the extent of the subject matter in the plaint and the preliminary plan is about %of an acre and therefore it cannot be treated as marginal or negligible and that the registration of the lis pendens being in respect of an extent of 3Y2Acres, the action could not have proceeded without any amendment of the plaint.

Held:

(1) A perusal of the preliminary plan clearly shows that the boundaries of the subject matter as described in the said plan are identical to that of the boundaries set out in the deeds produced by the plaintiff and the land set out in the plaint.

(2) The indefinite or undefined eastern boundary on the preliminary plan would not necessarily mean that the land surveyed for purpose of the action is only a portion of a larger land.

Per Abdul Salam, J

"It is trite law that proof of original ownership of a land is not always placed at a very high degree and as such the plaintiff should have been shown some leniency relating to the proof of original ownership.

APPLICATION in Revision from an order of the District Court of Kuliyapitiya.

Cases referred to:-

1. Brampy Appuhamy us. Mendis Appuhamy - 60 NLR337

2. W. Uberis us. Jayawardane - 62 NLR 217

3. K. M. G. D. Vias us. Kariyawasam Majuwana Gamage - CA 897/92

Dr.Jayantha de Almeida Gunaratne PC with Ayendra Wickremasekera and Lasith Chaminda for petitioner.

M. C. Jayaratne with N. Senaratne for 1st and 2nd respondents.

Cur.adv.vult

February 10, 2009

ABDUL SALAM, J.

This is an application made in revision to have the judgment and interlocutory decree dated 2nd May 2002 set aside and/or revised or to have the plaintiffs action dismissed and/ or for an order directing a retrial of the case.

The plaintiffs instituted the partition action in respect of a land called Mahawatta alias Innawatta alias Erumaliyadda which was depicted for the purpose of the partition action by preliminary plan No. 620 prepared by R. A. Navaratne, Licensed Surveyor.

Admittedly, the subject matter is depicted as lots 1 and 2 in plan No. 620 aforesaid. The learned district Judge having examined the deeds produced by the parties and the admissions made by them as regards the identity of the corpus, arrived at the conclusion that the subject matter of the partition action comprises of lots 1 and 2 depicted in plan No. 620.

Quite contrary to the admissions recorded at the instance of the parties, the petitioner now seeks to resile from

the agreement and argue that the learned District Judge has failed to take into consideration the fact that what was sought to be partitioned was a part of a larger land. Hence, the petitioner contends that the District Judge ought to have proceeded to take steps to have the correct subject matter depicted in reference to a different survey plan and not entered an interlocutory decree to partition the land.

The petitioner has urged that the discrepancy in the extent of the subject matter as given in the plaint and the preliminary plan is about % of an acre and therefore cannot be treated as a marginal or negligible inconsistency. It is further submitted on behalf of the petitioner that the registration of the lis pendens being in respect of an extent of 3 Y2 acres, the action could not have proceeded without any amendment of the plaint and a fresh lis pendens. The learned President's Counsel of the petitioner relies on the judgments of

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