1959 Present  : Basnayake, C.J., and Pulle, J.

W. UBERIS et, al., Appellants, and M. W. JAYAWARDENE,
Respondent

S. C. 44 - D. C. (Inty.) Galle, 3465/L

    Partition action--Preliminary survey-Duty of surveyor to adhere Strictly to terms of commission--Amendment of pleadings-Effect on lis pendens-Civil Procedure Code, s. 93.

In a partition action, when a commission is issued to a surveyor to carry' out a preliminary survey it is the duty of the surveyor to adhere strictly to its terms and to locate and survey the land he is commissioned to survey. It is not open to him, even with the consent of the parties, to survey a portion only of the land and submit the plan and report of such survey. If he is unable to locate the land he is commissioned to survey, he should so report to the Court and ask for further instructions.

Per BASNAYAKE, C.J.-An action in respect of one land cannot be converted into an action in respect of another land by an amendment of pleadings.

Per PULLE, J.-When, a plaint in a partition, action is amended so as to substitute a new corpus for-the one described in the first plaint, a fresh lis pendens
would be necessary.

APPEAL from an order of the District Court, Galle.

H. W. Jayewardene, Q. C., with F. A. Abeywardene and N. R. M. Daluwatte, for the Defendants-Appellants.

C. Ranganathan, with M. T. M. Sivardeen, for the Plaintiff-Respondent.

Cur. adv. vult.

November 27, 1959. BASNAYAKE, C.J.

I have had the advantage of reading the judgment prepared by my brother Pulle, with which I agree.

I wish to add that this is one of many cases that have come up in appeal in which the surveyor commissioned to carry out a preliminary survey in proceedings under the law relating to partition has failed to appreciate the functions entrusted to him. It is the duty of a surveyor to whom a commission is issued to adhere strictly to its terms and locate and survey the land he is commissioned to survey. It is not open to him to survey any land pointed out by one or more of the parties and-prepare and submit to the court the plan and report of such survey. If he is unable to locate the land he is commissioned to survey, he should so report to the court and ask for further instructions,

Another matter I wish to stress is that Judges of first instance should give their personal attention to the formulation of the terms of the commission issued in proceedings for the partition of land and not leave it to be done mechanically by a member of the clerical staff attached to the court. A commission is an instrument issued by the court and should receive its careful consideration and specify in detail what the surveyor is required to do. The instant case is a good. illustration of the neglect of that duty by the Judge.

The amendment of pleadings is a matter for the court and should be effected in the manner prescribed by section 93 of the Civil Procedure Code. An action in respect of one land cannot be converted into an action in respect of another land by an amendment of pleadings. I can find no authority in the Code for the following order of the trial Judge:

"Take case off trial roll. Plaintiff to file amended plaint and all papers in respect of the whole land depicted in plan 1204. "

I wish also to draw the attention of Judges of first instance to the need for a strict observance of the provisions of section 93 of the Civil Procedure Code.

PULLE, J.

The action out of which this appeal arises was instituted as far back as 6th February, 1948, to partition a land called Kudawadugewatta. On 3rd August, 1953, a preliminary decree was entered declaring the plaintiff and a number of defendants entitled to various shares in a land of the extent OA. lR. 39P. depicted in Plan No. 2493 of 29th May, 1948. The decree further ordered that the land be partitioned. It is sufficient for the present to note that the 11th defendant, Manawaduge Babysingho, to whom th