Jayawickreme Et Al. V. Don Lewis

1948     Present: Basnayake J.

JAYAWICKREME et al., Appellants, and DON LEWIS, Respondent.

S. C. 1.26-C. R. Matara, 22,941.

 

Partition action-Court of Requests-Averment in answer that land is of value of more than Rs. 300-No issue raised at trial-Duty of Court-Partition Ordinance, section 4.

Where in a partition action brought in the Court of Requests some of the defendants in their answer stated that the land was worth over Rs. 2,000, the fact that the parties did not raise this issue at the trial does not absolve the Court from deciding the question in view of the provisions of section 4 of the Partition Ordinance.

Held further : Survey plans other than those which are deemed by statute to be accurate until the contrary is proved must be proved according to the rules of evidence.

APPEAL from a judgment of the Commissioner of Requests; Matara.

N. E. Weerasooria, K.C., with H. W. Jayewardene, for the appellants.

H. W. Tambiah, for the plaintiff, respondent.

 

Cur. adv. vult.

 

May 5, 1948. BASNAYAKE J.-

By deed No. 5174 of September 25, 1941, referred to in these proceedings as P 1, the plaintiff, one Palihawadana Kodikara Don Lewis, purchased from four persons named Vitiyala Vidanage Suwaris Appuhamy and Vitiyala Vidanage Don Carolis, Dampellagamage Babeharny, and Pothumulle Kankanange Don Allis for a sum of two hundred rupees a land called Gamageowita depicted as lot O in plan No. 830 made by L. G. Perera, Surveyor, filed in D. C. Matara, Case No. 753, bounded on the north by Ithanawaka, east by Mahaowita, south by the Nilwalaganga, west by Radagewatta alias Bogahaowitewatta in extent 1 acre 2 roods and 20 perches. It appears from the deed that the consideration was not paid in the presence of the notary. The vendors Suwaris and Carolis admit having received twenty-five rupees and fifty-six rupees respectively. There is no evidence as to the payments, if any, made to the other two vendors.

Within three months of his purchase the plaintiff on December 10, 1941, instituted this action under the Partition Ordinance. In his libel under section 2 of that Ordinance the plaintiff named eight persons as co-owners. Of these eight the first and second named did not appear and take part in these proceedings. The others contested the plaintiff's action on grounds fully stated in the respective statements filed by them.

Although the third and fourth defendants in their statement contend that the subject-matter of this action is worth over Rs. 2,000, the learned Commissioner appears to have paid no heed to this averment.

It is settled law that a decree purporting to be made by a court of limited jurisdiction with regard to a matter outside its jurisdiction is a nullity. It has been decided in the case of Neelakutty v. Alvar  1[(1918) 20 N. L. R. 372.] that it is open to any one whether a stranger or a party to the suit to impeach the validity of a decree passed by a court which is not competent to try the suit. In the present case the third and fourth defendants have

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