1918  Present : Bertram C. J. and De Sampayo J.

FALALLOON v. CASSIM.

351-D. C. Puttalam, 2,468

Unnecessary extension of scope of trial deprecated-Cross-examination- Records of previous litigation-Evidence Ordinance, ss. 52, 146, 153, 154, and 155-When Court of Appeal may revise findings of fact.

It is not permissible to tender in evidence records of previous litigation in which a litigant or a witness may have been previously engaged, with a view to showing that he is of such a character as to render probable or improbable any conduct imputed to him. A witness may be cross-examined with reference to previous litigation so as to shake his credit by injuring his character. But his answers to those questions must be accepted, and they cannot be either impeached or confirmed by the attacking party by tendering in evidence the record of the case in question. In any case it is not competent for any party to put in evidence the entire body of proceedings and papers of another action indiscriminately. The Court cannot do this, even though the parties desire it. Nor is it legitimate to tender in evidence the opinion expressed by the Judge who tried the case. Reference may no doubt be made in re-examination to a deposition or document forming part of the record, or even to the opinion expressed by a Judge, for the purpose of enabling a witness to explain any answer given in cross-examination. But the Court should narrowly watch any attempt to encumber its record by the illegitimate incorporation of the proceedings of previous litigation.

While a Court of Appeal will always attach the greatest possible weight to any finding of fact of a Judge of first instance based upon oral testimony given before that Judge, it is not absolved by the existence of these findings from the duty of forming its own view of the facts, more particularly in a case where the facts are of such complication that their right interpretation depends, not only on any personal impression which a Judge may have formed by listening to the witnesses, but also upon documentary evidence, and upon the inferences to be drawn from the behaviour of these witnesses, both before and after the matters on which they give evidence.

THE facts are set out in the judgment.

Samarawickreme, F. H. B. Koch, and Cooray, for appellants.

A. St. V. Jayawardene, A. Drieberg, and Brito-Muttunayagam, for respondents.

Cut. adv. vult.

August 22, 1918. BERTRAM C.J.-

This was a case, the principal parties to which are an uncle and nephew, who, together with a third member of the family, were co-owners of sixteen lands in the Puttalam District, and who had

entered into an agreement for the partition of these lands. The partition deed set out the various lands, and divided them into portions of two-thirds and one-third, specifying in each case the situation of the portion allotted to either party (north or south, east or west, as the case might be), and leaving the actual dividing line to be drawn by a licensed surveyor, to be appointed, in the first instance, by the first defendant, or, if he failed to appoint a surveyor within three months, by the plaintiff. The first defendant appointed a surveyor, and a partition, was effected. This partition has been challenged by the plaintiff, on the ground that it is not in accordance with the partition deed, and therefore not binding upon him. The points on which the partition is criticised are mainly two: -

(a) That it was effected without notice to the plaintiff as required by the deed.

(b) That, for the purposes of the partition, the extent of the various lands dealt with was determined by the actual title as shown by the documents, and not, as the true construction of the deed is said to require, by the land in actual occupation.

The principal questions for the Court, therefore, were, firstly, whether notice had been given of the partition; and secondly, what was the tru