786 digest of decided cses partition word

1
Contents
BASIC GUIDELINES .................................................................................................
5
SRI LANKA LAW REPORT 2009 VOL 1 ..........................................................................
6
Section 68 - Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared -
Earlier law giving place to a later - law lex posterior derogate priori -leges posteriors
priores contrarias abrogant - non-est novum ut priores leges and posteriors. ..........
12
Right of representation – Partition- Party unrepresented on the trial date-judges duty
................................................................................................................................. 16
Partition suit- The importance attached to establishing the identity of the corpus- The
requirement that the corpus should be an independent land and not a portion of a
larger land- The system of land measure computed according to the extent of land
required sowing with paddy or Kurakkan.
......................................................................................... 22
The requirement to give the undivided share of the soil and rights each party is
entitled to in the interlocutory decree- failure to specify the specific undivided share-
consequences ..................................................................................... 25
Substitution- suppression- revision application-Maintainability ......................................
29
AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT- Section 66 of the
Partition Act- ........................................................................................ 32
AMENDMENT OF INTERLOCUTORY DECREE-INSUFFICIENT EVIDENCE-
Section 34 ................................................................................................................................
41
AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY OF THE
CORPUS-IMPORTANCE .................................................................... 43

2
APLICATION FOR REVISION AND/OR RESTITUTIO IN INTEGRUM-
PETITIONER HAD NO RIGHTS IN THE CORPUS- MAINTAINABILITY ..................
46
APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC 773 OF THE
CPC. REQUIREMENTS NECESSARY TO BE ESTABLISHED ......... 50
FAILURE TO PROSECUTE PARTITION ACTION- SPIRIT OF SECTION 70 OF
THE PARTITION LAW. ....................................................................... 54
APPLICATION TO REVISE AN ORDER CONFIRMING SCHEME OF PARTITION-
CONSIDERATION APPLICABLE ....................................................... 57
WHO CAN FILE AN APPEAL? IT IS ONLY A PARTY TO A CASE WHO IS
AGGRIEVED BY A JUDGEMENT CAN PREFER AN APPEAL .......... 60
WANT OF PROPER INVESTIGATION OF TITLE AND FAILURE TO SUBMIT
DECLARATION UNDER SECTION 12 ............................................... 62
DEFAULT OF APPEARANCE IN PARTION CASE- SECTION 28 OF THE C.P.C-
NON COMPLIANCE ............................................................................ 65
Section 70 of the partition act. Distinction between dismissal of action for
nonprosecution and withdrawal. Position of a defendant who had asked for the
dismissal of the action. ........................................................................................ 68
ERROR COMMITTED BY THE D.J. SECTION 189- POWERS CONFERRED TO
CORRECT SUCH MISTAKES .................................................................................
71
Consequences of a consent judgment. Agreement to abide by an order to be pronounced
after inspection. ......................................................................................................... 80
The 3rd defendant has not only agreed to abide by any order
pronounced by the district judge after such inspection but
refrained from adducing any oral evidence when he was called
upon to do so. I have perused the petition and affidavit of the
petitioner along with the other material available. The totality of
the 3rd defendant’s case as revealed by him points to lack of
‘exceptional circumstances’.......................................................................... 80

3
EXECUTION UNDER SECTION 52 OF THE PARTITION ACT ................
84
FAILURE TO ADDUCE EXCEPTIONAL CIRCUMSTANCES-PARTITION-
REVISION-SECTION 34 ..........................................................................................
87
FAILURE TO SATISFY COURT AS TO THE EXISTENCE OF ANY FUNDAMENTAL
VICE IN THE PROCEEDINGS. ........................................................... 89
FALSE CLAIM OF PRESCRIPTION PUT FORWARD BY THE 1ST DEFENDANT-
SELF EXPLANATORY NATURE OF THE UNSATISFACTORY CLAIM-LAW
APPLICABLE ........................................................................................................................
93
Right of access over the corpus IN A PARTITION ACTION.CONSIDERATION........
99 FRIVOLOUS APPEAL- PENAL COSTS- DEFENDANT ENTERED AS A
BOARDER CLAIMING PRESCRIPTIVE TITLE- SEC 3 OF THE PRESCRIPTION
ORD- HOW IT SHOULD BE
APPLIED................................................................................................. 102
The admission of a power to vary the requirements of a decree once passed would
introduce uncertainty and confusion. ................................................. 108
TRUST-PRESCRIPTION-SECTION 111 OF THE TRUST ORD ................................
114
Delay in filing revision .........................................................................................................
138
THE LAND SURVEYED AT THE PRELIMINARY SURVEY IS CONSISTENT WITH THE CORPUS
DISCLOSED IN THE PLAINT-IDENTITY OF THE CORPUS SUCCESSFULLY ESTABLISHED. .........
142
BASELESS GROUNDS OF APPEAL-RESULTING POSITION. THE APPELLANTS
HAVE ALSO COMPLAINED THAT THE 17TH DEFENDANT-RESPONDENT
WHO GAVE EVIDENCE ON BEHALF OF THE PLAINTIFF-RESPONDENT WAS
NOT IN POSSESSION OF THE CORPUS AND THAT THE QUESTIONS PUT TO
HER IN EVIDENCE IN CHIEF, WERE ALL LEADING QUESTIONS WHICH
SUGGESTED THE ANSWERS. AS THE APPELLANTS WERE REPRESENTED,
WHEN THE 17TH DEFENDANT-RESPONDENT GAVE EVIDENCE AND HAD
FAILED TO OBJECT TO LEADING QUESTIONS BEING PUT TO THE WITNESS,
THEY CANNOT BE NOW HEARD TO COMPLAIN ON THAT MATTER. ..........
142
SCHEME OF PARTITION-COMMISSIONERS PLAN-APPROACH TO BE

4
ADOPTED BY THE TRIAL JUDGE ........................................................................
147
RESTITUTIO IN INTERGRUM- LOCUS OF THE PETITINER-PETITIONER HAD NO
RIGHTS IN THE CORPUS .....................................................................................
162
REBUTTING THE PRESUMPTION ARISING UNDER SECTION 110 OF THE
EVIDENCE ORDINANCE. PARTITION ................................................................. 167
PROTECTION GIVEN TO PARTITION DECREES ..............................................
172
protection given to partition decrees from being attacked on the grounds of fraud, collusion,
omissions, defects, and of the failure to make “persons concerned" parties to the action
should not be construed as a licence to flout the provisions of the partition law and to
deprive others of their property rights to enrich conveniently at the expense of the victims.
.................... 172
PRICELESS ADVANTAGE OF SEEING THE WITNESSES AND OBSERVING THE
MANNER IN WHICH A WITNESS TESTIFIES. JUDGE’S FIRM OPINION AS TO
THE CREDIBILITY OF THE WITNESSES. RULE AGAINST INTERFERANCE OF
FINDING IN CREDIBILITY OF WITNESSES AS EXPRESSED BY THE JUDGE
LIGHTLY .............................................................................................................. 186
PRESCRIPTION-LICENSEE-INGREDIENTS NECESSARY ................................
187
PARTITION-CLAIM BASED ON PRESCRIPTION TO THE CORPUS BY A
CONTESTESTING DEFENDANT- EVIDENTIAL VALUE OF THE PARTIES IN THE
LIGHT OF THE DOCUMENTS-TRIAL JUDGES INCORRECT FINDINGS ON
FACTS- POWERS OF THE COURT OF APPEAL TO OVERRULE WRONG
INFERENCES DRAWN FROM FACTS ............................................ 188
PENDING PARTITION DEEDS- PRHIBITED TYPE OF ALIANATION200
PARTITION-INVESTIGATION OF TITLE............................................................... 208
PARTITION-IDENTITY OF THE CORPUS- ...................................... 210
PARTITION-EFFECT OF EXCLUSION-RES JUDICATA-EVIDENCE REQUIRED
TO ACQUIRE PRESCRIPTIVE TITLE TO A LOT EXCLUDED IN AN EARLIER

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PARTITIONN CASE ..............................................................................................
221
PARTITION REVISION DELAY IN FILING THE APPLICATION ...... 230
PARTITION- NON SERVICE OF SUMMONS- SHOULD THE ID BE SET ASIDE-
CONSIDERATION APPLICABLE .......................................................................... 232
PREMAYAMENT ORDER- NON COMLIANCE- SCHEME OF PARTITION ..........
241
PARTITION- INVESTIGATION OF TITLE-MISDIRECTION .................................. 243
PARTITION-INVESTIGATION OF TITLE-NOTHING CAN BE ACQUIRED FROM
A CO-OWNER WHO HAS EXHAUSTED HIS RIGHTS ........................................
248
PARTITION- FINAL DECREE- WRIT OF POSSESSION -SEC 52 OF THE
PARTITION ACT ....................................................................................................
261
PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT ...............................
266
PARTITION-PRESCRIPTION-OUSTER BY AN OVERT ACT .............................
266
PARTITION ACTION-BONA FIDE IMPROVER- COMPENSATION ......................
270
CA 1330/96 F DC Galle 7445/P to be named ........................................................ 272
PARTITION-PRESCRIPTION-LAW APPLICABLE ........................... 285
PARTITION-FAILURE TO APPRECIATE THE BURDEN OF PROOF OF
CERTAIN FACTS-.............................................................................................. 295
PARTITION-PRESCRIPTION-LACK OF EVIDENCE ON OUSTER. ...................
308
NECESSITY TO IDENTIFY THE CORPUS .......................................................... 315
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

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SHOULD HAVE BEEN SHOWN SOME LENIENCY RELATING TO THE PROOF OF
ORIGINAL OWNERSHIP. ......................................................................................
320
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- identity
of the corpus-- discrepancy arising on the preliminary survey ....
320
ISSUES RAISED BY THE TRIAL JUDGE IN THE COURSE OF WRITING
JUDGMENT- PERMISSIBILITY ...........................................................................
325
Irregular procedure adopted by court compelling the 4th
defendant-petitioner to participate at the trial in person has ended
up in a miscarriage of justice, in that the 4th defendant-petitioner
had to forego the right conferred under 48(4)(iv) of the Partition
Act. ....................................................................................................................... 335
INSPECTION OF THE SUBJECT MATTER OF CONSENT OF PARTIES- CAN
THE DECISION MADE AFTER THE INSPECTION BE CHALLENGED .............
343
Section 36A of the partition act. ........................................................ 347
any party who is aggrieved by an order made under section 36 is required
to make an application for leave to appeal within the period of 14 days.
Without explaining the circumstances which prevented the petitioner from
resorting to section 36A of the Partition Act, she is unable to have and
maintain the present application for revision as presently constituted ...
347
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7
SRI LANKA LAW REPORT 2009 VOL 1
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

8
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.
175
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

9
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
176
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 Brampy
Appuhamy us Mendis Appuhamy(l) W. Uberis us.
Jayawardena(2) and K. M. G. D. Dias us. Kariawasam
Majuwana GamageP) to drive home his point that the learned
district judge should not have entered interlocutory decree to
partition the subject matter.
In the case of Brampy Appuhamy us Mendis Appuhamy
(Supra) the corpus sought to be partitioned was described in
the plaint as a land about 6 acres in extent and the

10
communication issued to the surveyor was to survey a land of
that extent. However the surveyor could survey a land of only
2 acres and 3 roods. Interlocutory decree was entered in
respect of the land of 2 acres and 3 roods, without any
question being raised by the parties as to the extensive
inconsistency between the extent given in the plaint and that
which was shown in the plan made by the surveyor. It was
held that the court had acted wrongly in proceeding to trial in
respect of what appeared to be a portion only of the land
described in the plaint.
177
In the case of W. Uberis us. Jayawardena (supra) the plaint in
the partition action was amended so as to substitute a new
corpus for the one described in the first plaint and it was held
that a fresh lis pendens would be necessary to maintain the
action.
In the case of K. M. G. D. Dias us Kariawasam Majuwana
Gamage (Supra) the plaintiff sought to partition a land in
extent 4 acres 3 roods 12.1 perches being in extent after
excluding 5 acres 4.9 perches which was acquired by the
State from and out of a larger land in extent 9 acres 3 roods
17 perches. The lis pendens registered was in respect of a
larger land in extent 9 acres 3 roods 17 perches, which was
inclusive of the extent of 5 acres 4.9 perches that formed the
portion said to have been acquired by the State. The
description of the land even in the plaint was that of the
larger land that existed prior to the acquisition. It was held
that the District Judge had committed a cardinal error in
ordering a partition in respect of the land which is a portion of
the larger land.
The facts however in this case are quite different. The plaintiff
in his plaint sought to partition a land in extent of about 3Y2
acres the boundaries of which are described to be on the
North, East and West by the lands belonging to Mudalihamy
Mahathmaya and others and on the South by lands owned by
Sundara Bandara and others. At this stage it is of paramount
importance to note the boundaries described in the

11
preliminary plan No. 620. A perusal of the said 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 schedule to the plaint. Even the document marked PI sets
out the boundaries of the subject matter as the lands
belonging to Mudalihamy
178
Mahathmaya and others on the North, East and West and by
lands owned by Sundara Bandara and others on the South.
Quite consistent with the boundaries given in PI, the
documents marked as P2, P3, P4, PS and P6 describe the
boundaries of the subject matter in the same manner as has
been described in PI and also in the plaint. The lis pendens
also contain the identical boundaries given in the plaint.
In the circumstances, the subject matter of the partition
action cannot be said to be a portion of a larger land as has
been contended by the petitioner. 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, as the petitioner had
attempted to make out. Consequently, the discrepancy cannot
be considered as being so material, particularly in view of the
unequivocal admissions made by the petitioner and other
parties as to the identity of the corpus.
The learned trial Judge in his judgment has carefully
considered the contents of the deeds produced on behalf of
the petitioner prior to his concluding that the land dealt in the
deeds produced by them are not applicable to the subject
matter. Even as regards the original owner referred to by the
petitioner the learned District Judge has given cogent
reasons, before he rejected the version ofthe petitioner.
According to the learned District Judge the land referred to in
the deeds produced by the petitioner is different from the land
sought to be partitioned by the plaintiff. Further the surname
of Punchirala referred to by the petitioner is totally different

12
from the surname of Punchirala referred to in the plaint as
the original owner.
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
179
to the proof of original ownership. In any event 14th to 17th
defendants have failed to establish the devolution of title to
the corpus and also failed to prove prescription accompanied
by an element of ouster by an overt act.
For the foregoing reasons it is my view that the revision
application of the petitioner should fail. Hence I make order
accordingly.
I make no order as to costs.
Application dismissed.

14
Section 68 - Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared - Earlier
law giving place to a later - law lex posterior derogate priori -leges posteriors priores
contrarias abrogant - non-est novum ut priores leges and posteriors.
Sri Lanka Law Reports
2009 - Volume 1 , Page No - 95
95
WIMALAWATHIE
vs
HEMAWATHIE AND OTHERS
COURT OF APPEAL
ABDUL SALAM. J
CA 825A-825B/2001 (F)
DC COLOMBO 14522 P
SEPTEMBER 24,2007
Partition Act No.16 of 1951 - Law No. 44 of 1973 - Partition Law No. 21 of 1977 - Section 68 -
Proofofdocuments - Evidence Ordinance of 1895 Section 68 compared - Earlier law giving place
to a later - law lex posterior derogate priori -leges posteriors priores contrarias abrogant - non-
est novum ut priores leges and posteriors.
In the partition action instituted by the plaintiff appellant to partition the corpus, the trial judge
rejected the deeds of the plaintiff as the plaintiff could not prove the execution of the said deeds.
The said deeds were marked subject to proof but not proved.
In appeal it was contended that calling for proof of documents produced by the plaintiff appellant
contravenes Section 68 of the Partition Law.
Held:
(1) The finding in relation to the want of proof of the documents produced by the plaintiff and the
10th defendant blatantly contravenes Section 68 of the Partition Law, which provides that it shall
not be necessary in any proceedings under that law to adduce formal proof of the execution of
any deed which on the face of it, purports to have been dilly executed unless the genuineness of
that deed is impeached by a party claiming adversely to the party producing that deed or unless
the Court requires such proof.

15
(3) The execution of documents required by law to be attested should be 'proved by calling at
least one subscribing witness - Section 68 Evidence Ordinance which was enacted in 1895.
This precedes
96
the Partition Act 16 of 1951, Law 44 of 1973 and Partition Law, 21 of 1977, thus later laws
repeal earlier laws in-consistent - there with and earlier act must give place to a later, if the two
cannot be reconciled.
cur.adv.vult
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:-
1. Sri Lanka Ports Authority us. Jugolinga - 1981 - 1 Sri LR 18
2. Cooper us. Wilson - 1937 - 2 KOB 300
L. W. Wettasinghe with Kapila Jayasekera for plaintiff-appellant
Rohan Sahabandu for 10th defendant-respondent
May 05,2009
ABDUL SALAM, J.
The question that arises for determination in this appeal involves an important aspect of the law
relating to the mode of proof of deeds, in a partition action. Understandably, there are no
precedents on a similar legal question originating either from this Court or any other courts of
superior jurisdiction. It is therefore necessary, to set out in detail the circumstances that had led
up to the present appeal and the law that is applicable.
The plaintiff-appellant (Plaintiff) filed a partition suit against the pt to 10th defendant-respondents
(hereinafter collectively referred to as the "defendants" or individually as 1 to 10 defendants as
the case may be) to partition a land alleged to be owned in common. Some of the defendants
denied the devolution of title set out by the plaintiff, but put forward a chain of title, which
materially deferred from that of the title pleaded by the plaintiff. The plaintiff and the 18tto 9th
defendants are siblings and cousins and the 10thdefendant is the mother of the pt, 2nd, 6th ,7th,
8th and 9th defendants. The main question that arose for determination was whether the subject
matter of the action should be partitioned as per the pedigree set out in the plaint or in the
statement of claim of the contesting defendants.
At the trial the plaintiff gave evidence in support of her case and produced 7 deeds marked as
PI to P7 in order to establish her title and led the evidence of the Notary Public who attested the
documents marked as P3 and P6. Remarkably five of these deeds were originals and the rest
were certified copies. PI has been executed as far back as in 1913, P2 in 1943, P3 in 1971, P4
in 1952, P5 & P6 in 1971 and P7 in 1956. The partition action has been instituted on 3rd July
1986. The deeds produced by the plaintiff were 23 to 81 years old as at the time when they
were produced in court in the year 1994.
None of the defendants chose to impeach the genuineness of the deeds produced at the trial
marked as PI to P7, even though they denied in their statement of claim, the devolution of title
set out by the plaintiff. However, when PI and P3 to P7 were sought to be produced in evidence,
the 18tand 5th to 8th defendants insisted on the proof of the same. The learned district Judge

16
thereupon allowed the documents to be produced subject to proof. As referred to above, the
plaintiff called evidence only in proof of the execution of P3 and failed to call the notary or the
subscribing witnesses to PI, P3 to P7. At the end of the plaintiffs case, the. defendants. who
insisted on proof of the said deeds, pointed out to court that they have not been proved and the
learned district Judge accordingly made a note to that effect. Thereafter based on the judgment
in Sri Lanka Ports Authority us Jugolinija(1) learned District Judge rejected the said deeds and
held that the plaintiffs prescriptive possession should also fall as she could not prove the
execution of the said deeds.
The learned counsel of the plaintiff has submitted that the error of .law in rejecting the deeds of
the plaintiff is contrary
98
to the provision of section 68 of the Partition Law and has completely dominated the learned
district Judges thinking in arriving at his conclusion, as it stands repeated at seven places in the
judgment, to wit; at pages 387,392,394,395,396 and 402 of the brief.
Furthermore the 10th defendant who was the mother of some of the parties who claimed life
interest to house No 414 ( her matrimonial home) on deed 10 D 1 (P5) that vested title on the
plaintiff, had marked the said deed and 8 other documents. Even assuming that the burden cast
formally to prove deeds in a partition action cannot be faulted, yet the learned district Judge had
totally misdirected himself when he had not considered the evidence of the only surviving
subscribing witness to the said deed Somadasa (page 258) whose uncontested testimony was
with regard to the due execution of the saiq deed. This evidence was completely ignored by the
learned District Judge who proceeded to arbitrarily dismiss the 10th defendants claim contrary
to his own misinterpretation of the law. Moreover, the learned district Judge has failed to
appreciate that none of the documents produced by the 10th defendant had been objected to by
the contesting defendants.
The aforesaid finding of the learned judge in relation to the want of proof of the documents
provided by the plaintiff and the l{)th defendant, blatantly contravenes section 68 of the Partition
Law which provides that it shall not be necessary in any proceedings under that law to
adduceformal proof of the execution of any deed which, on the face of it, purports to have been
duly executed, unless the genuineness of that deed is impeached by a party claiming adversely
to the party producing that deed, or unless the court requires such proof.
Noticeably the only deed that had been so challenged was P3. Even in respect of P3, evidence
in rebuttal had been led
99
through the 10thdefendant. This aspect of the case has also not been properly considered by
the trial judge.
The execution of documents, required by law to be attested should be proved by calling at least
one subscribing witness is contained in section 68 of the Evidence Ordinance that was enacted
in 1895. This precedes the Partition Act No. 16 of 1951, Law No 44 of 1973 and Partition Law
21 of 1977. In this connection it is appropriate to refer briefly to the maxims Lex Posterior
derogat priori and Leges posteriors priores contrarias abrogant which respectively mean that
later laws repeal earlier laws inconsistent therewith and earlier Act must give place to a later, if
the two cannot be reconciled. The maxim non est novum ut priores leges and posterios also
would be applicable in this context. (see Cooper Vs Wilson) (2)
The learned counsel of the contesting defendants has contended that even if the genuineness
of a deed had not been impeached in the statement of claim, yet the learned district Judge is
entitled to insist on the proof of a deed as he is vested with the discretion to do so under section

17
68 of the Partition Act. Even though the contention of the learned counsel on this matter is not
incorrect, a careful scrutiny of the entire proceedings clearly points to the fact that the learned
District Judge had in reality not insisted on the proof of the deeds produced by the plaintiff on his
own volition, in the exercise of the discretion vested in him under section 68, but merely as a
matter of routine allowed the documents to be marked subject to proof, upon being insisted to
that effect by the contesting defendants, without considering the applicable law.
As such it would be seen that the learned judge has manifestly failed in his fundamental duty to
properly
100
investigate title which had resulted in a grave miscarriage of justice. Hence, the impugned
judgment and interlocutory decree should necessarily be set aside on this ground alone and
accordingly I set aside the same. The learned district Judge is directed to investigate title once
again. I make no order as to costs.
Appeal allowed.
Trial de Novo Ordered

18
Right of representation – Partition- Party unrepresented on the
trial date-judges duty
2008 - Volume 1 , Page No - 377
377
RANJITH PERERA AND ANOTHER
v
DHARMADASA AND OTHERS
COURT OF APPEAL SALAM,
J.
CA 1754/2004
DC HORANA 5387/P
JANUARY 8,2008
Partition Law 21 of 1977 - Section 48 (4), Joint statement of claim - Trial date - Registered
Attorney absent - One claimant taking part in the proceedings - Sections 24, 27(2) Civil
Procedure Code -Applicability - Procedural Law - Its importance - Investigation of title? -
Permission to conduct his own case - Not recorded? - Fatal?
The 3rd and 4th defendants-petitioners who had jointly nominated a registered Attorney-
atlaw and filed a joint 'statement of claim sought to revise the judgment and the interlocutory
decree, on the basis that, they were unrepresented at the trial, and that the trial Judge
should not have put the 4th defendant-petitioner into the witness box without legal

19
assistance and permitted him to cross examine when he had a registered attorney on
record. The petitioners also allege that, there was no investigation of title, and that, there
was no settlement.
Held:
(1) As long as a party to a case has an Attorney-at-law on record, it is the Attorney-at-
law on record alone, who must take steps and also whom the Court permits to take steps.
When the 4th defendant-petitioner attended Court without being represented by his
Attorney-at-law or a Counsel (Section 27(3)) the trial Judge should have considered him as
a party having failed to appear at the trial as the Court has chosen to do so in the case of
the 3rd defendant-petitioner. Further there is no indication pointing to the 4th
defendantpetitioner having sought permission of Court to cross-examine the plaintiff or to
present his case in person either.
Per Abdul Salam, J.
"As far as the 4th defendant-petitioner is concerned by improperly extending the right of
audience to him at the trial. the trial Judge has proceeded on the
378
basis that the judgment and interlocutory decree were entered interpartes, this procedure
wrongly adopted by Court has deprived the 4th defendant-petitioner of the right to invoke
Section 48(4)".
(2) The trial Judge had recorded at the commencement of the trial that the parties had
resolved the disputes and the Court has proceeded to hear evidence without points of
contest, before it was so recorded the trial Judge owed a duty to explain to the 4th
defendant-petitioner the manner in which the disputes have been resolved and to make a
contemporaneous reference to that fact in the proceedings.
If the 4th defendant-petitioner was a party to the compromise, need for cross examination of
the plaintiff by the 4th defendant-petitioner would not have arisen - this clearly shows that
the 4th defendant-petitioner was not a party to the compromise recorded at the
commencement of the trial.
(3) Omission to give a party to a suit an opportunity of being heard is not merely an
omission of procedure but is a far more fundamental matter in that it is contrary to the rule
of natural justice embodied. There has been no investigation of title.
(4) The protective character of procedural law has the effect of safeguarding every
person in his life, liberty, reputation, livelihood and property and ensuring that he does not
suffer any deprivation except in accordance with the accepted rules of procedure - Dr.
Amerasinghe in Femando v Fernando.
APPLICATION in Revision from an order of the District Judge of Horana.
Cases referred to:
(1) Seelawathie and Another v Jayasinghe 1985 2 Sri LR 266 .
(2) Hameed v Deen and Others 1988 2 Sri LR 1.
(3) Fernando v Fernando 1997 3 Sri LR 1.
(4) Siriya v Amalee 60 NLR 269.

20
(5) Punchibanda v Punchibanda
(6) W.G. Rosaleen v H.B. Maryhamy 1994 3 Sri LR 262.
Chandana Prematilaka for the 3rd and 4th defendant-petitioners.
Rohan Sahabandu with Piyumi Gunatilaka for the plaintiff-respondent.
Cur.adv.vult.
March 19, 2008
ABDUL SALAM, J.
The petitioners who were the 3rd and 4th defendants in the above partition action, have
presently applied to revise the judgment dated 1 July 2004 and interlocutory decree entered
thereon. They allege
379
that they were unrepresented at the trial and hence denied of a fair trial. Their position is
that the learned trial judge erred when he proceeded to decide the action interpartes against
the 4th defendant. It is averred in the petition that the learned trial judge should not have put
the 4th defendant-petitioner into the witness box without legal assistance, when he had a
registered attorney on record.
As a matter of law, the petitioners contend that the District Judge concluded the case on
the same day it was taken up for hearing and thereby effectively shut out evidence of the
3rd and 4th defendants regarding their title and had compromised his sacred duty to
investigate the title.
When unnecessary details are filtered out the factual background relevant to the revision
application would appear to be uncomplicated. It involves a fundamental question of law
and how pertinently it had been applied in the circumstances peculiar to the revision
application.
The petitioners have jointly nominated a registered Attorney to be on record. They filed a
joint statement of claim disputing the averments in the plaint. On the date the matter was
set down for trial the registered Attorney of the petitioners was absent. Accordingly both
petitioners were unrepresented. Yet, the 4th defendant-petitioner was present at the trial.
The learned District Judge in the course of the trial had allowed the 4th defendant to
cross examine the plaintiff and also present his case in person. Thereafter he had delivered
judgment to partition the land allotting certain undivided rights to the plaintiff and leaving the
balance rights unallotted.
Thus, the learned District Judge had obtained the assistance of the 4th defendant to
resolve the dispute by effectually making him to participate throughout the trial. The record
does not indicate as to whether the 4th defendant-petitioner sought permission of Court to
conduct his own case. There is no indication pointing to 4th defendant- petitioner having
sought permission of Court to cross-examine the plaintiff or to present his case in person
either. In the absence of any specific mention being made in proceedings to the contrary, I
consider it as reasonable to assume that the learned District Judge on his own had involved
the 4th defendant in the trial proceedings.
380

21
The main question that arises for determination in this matter is the applicability of section
27(2) of the Civil Procedure Code. In terms of Section 27(2) aforesaid when an appointment
of a registered Attorney is made in terms of Section 27(l) of the Civil Procedure Code, such
appointment shall be in force until revoked with the leave of Court and after notice to the
registered Attorney by a writing signed by the client and filed in Court.
The effect of an appointment of a registered Attorney under Section 27(1) has been
considered by this court on many an occasion. Suffice it would be to cite the judgment in
Seelawathie and Anotherv Jayasinghe(1) and Hameed v Deen and Others(2) where in the
former case it was authoritatively held that as long as a party to a case has an Attorney-
atlaw on record, it is the Attorney-at-law on the record alone, who must take steps, and also
whom the Court permits to take steps. It is a recognised principle in Court proceedings that
when there is an Attorney-at-law appointed by a party, such party must take all steps in the
case through such Attorney-at- aw. Further, the established principle is that a party, who is
represented by an Attorney-at-law, is not permitted to address Court in person. All the
submissions on his behalf should be made through the Attorney-at law who represents him.
The learned Counsel of the petitioners has also cited the judgment in the case of
Hameed v Deen (supra) in which it was held that when there is an Attorney-at-law
appointed by a party, every step in the case must be taken through such Attorney-at-law.
The appointment of the Attorney-at-law under Section 25 of the Civil Procedure Code
remains valid in terms of Section 27(2) until all proceedings in the action are ended or until
the death or incapacity of the Attorney. The registered Attorney or Counsel instructed by
him alone could act for such party except where the law expressly provides that any party in
person should do any particular act.
The 4th defendant- petitioner has been suddenly called upon to cross examine the
plaintiff and later to present his own case by the learned District Judge, immediately after
the closure of the plaintiff's case, disregarding the fact that there was a registered Attorney
on record. When the 4th defendant attended Court without being represented by his
registered Attorney or a Counsel as contemplated under Section 27(3) of the Civil
Procedure Code, the learned District
381
Judge should have considered him as a party having failed to appear at the trial, as the
court had rightly chosen to do in the case of the 3rd defendant-petitioner.
It is quite significant to advert to the adverse consequences that flow from the learned
judge's approach to identify the proceedings as interpartes. As far as the 4th
defendantpetitioner is concerned, by improperly extending the right of audience to the 4th
defendantpetitioner at the trial, the learned District Judge has proceeded on the basis that
the judgment and interlocutory decree were entered interpartes. This procedure wrongly
adopted by Court has deprived the 4th defendant petitioner of the right to invoke Section
48(4)(iv) of the Partition Act, No. 21 of 1977. Had the learned District Judge followed the

22
provisions of the Civil Procedure Code and considered the 4th defendant-petitioner as a
party who had failed to appear at the trial or as a party in default of appearance, the 4th
defendant-petitioner could have legitimately exercised his rights under 48(4)(iv) of the
Partition Act to obtain Special Leave of Court to invoke the jurisdiction of the original Court
to amend or modify the interlocutory decree to such extent and in such manner as the Court
could have accommodated the entitlement, if any, of the 4th defendant-petitioner.
On the contrary, the irregular procedure adopted by Court compelling the 4th
defendantpetitioner to participate at the trial in person has ended up in a miscarriage of
justice, in that the 4th defendant-petitioner had to forego the right conferred under 48(4)(iv)
of the Partition Act. It is of much importance to observe that the learned trial judge recorded
at the commencement of the trial on 1 July 2004 that the parties have resolved the disputes
and the Court proceeds to hear evidence without points of contest. Before it was so
recorded the learned District Judge owed a duty to explain to the 4th defendant petitioner
the manner in which the disputes have been resolved and to make a contemporaneous
reference to that fact in the proceedings. As there is no such reference found in the
proceedings, I am not disposed to take it for granted that the learned District Judge has
either consulted the
4th defendant-petitioner regarding the settlement or enlightened him as to its
consequences. Had the learned District Judge taken the precaution to ensure that the 4th
382
defendant-petitioner also would be bound by such a settlement, he would have specifically
referred to the 4th defendant as a party to the settlement.
On the other hand, if the 4th defendant-petitioner was a party to the compromise, the
need for cross-examination of the plaintiff by the 4th defendant-petitioner would not have
arisen. Above all, when the 4th defendant-petitioner had purportedly cross-examined the
plaintiff posing only one question suggesting that Johanis was entitled to only 1/6th share
and not 1/2 as claimed by the plaintiff, the learned trial judge ought to have realized that the
4th defendant-petitioner was trying to resile from the compromise. Without clarifying this
from the 4th defendant-petitioner as to whether he was trying to pull himself out from the
compromise the learned Trial Judge appears to have simply raised two points of contest
and answered the same on the same day. This clearly shows that the 4th
defendantpetitioner was not a party to the compromise reached at the commencement of
the trial and the learned District Judge in fact should have raised points of contest at the
commencement of the trial itself.
The learned District Judge does not appear to have taken into account the miserable
plight of the 4th defendant-petitioner who should not have been held responsible for the
dereliction of duty of the registered Attorney. The 4th defendant-petitioner was in his.
eightieth year when he was suddenly called upon to cross-examine a witness in a
contested partition case and to present his case too. Even a lawyer with experience cannot
be expected to discharge his functions satisfactorily if he is confronted with the difficulty
which the 4th defendant-petitioner had to face.
The learned District Judge possibly in his enthusiasm to dispose of the case without
delay has lost sight of the importance of the law of Civil Procedure. As has been stated by
Dr. Amerasinghe, J. in Fernando v Fernando(3)"civil procedural laws represent the
orderly, regular and public functioning of the legal machinery and the operation of
the due process of law. In this sense the protective character of procedural law has
the effect of safeguarding every person in his life, liberty, reputation, livelihood and
property and ensuring that he does not suffer any deprivation except in accordance
with the accepted rules of procedure.
383

23
Although recklessness on the part of the 4th defendant-petitioner and dereliction of duty by
the registered Attorney cannot be denied, yet the irregular procedure adopted by the
learned Judge is totally unwarranted and unjustifiable.
In Siriya v Amalee et.al (4) it was held that an omission to give a party to a suit an
opportunity of being heard is not merely an omission of procedure but is a far more
fundamental matter in that it is contrary to the rule of natural justice embodied in the maxim
audi alteram partem.
In the result the manner in which title has been investigated by Court does not appear to
be consistent with the law that is required to be followed in the investigation of such title.
In the circumstances it is my view the irregular procedure followed by the learned District
Judge has ended up in a miscarriage of justice which transcends the bounds of procedural
error.
It is appropriate to quote the relevant passage from the judgment of Soertsz, J.
Punchibanda v Punchibanda(5)that has been cited with approval by his Lordship S.N. Silva,
J. (as he then was) in W.G. Rosalin v H.B. Maryhamy(6) which reads as follows:
"This Court has often pointed out that when settlements, adjustments, admissions, & c., are
reached or made, their nature should be explained clearly to the parties, and their
signatures or thumb impressions should be obtained. The .consequence of this obvious
precaution not being taken is that this Court has its work unduly increased by wasteful
appeals and by applications being made for revision or restitutio in integrum. One almost
receives the impression that once a settlement is adumbrated, those concerned, in their
eagerness to accomplish it, refrain from probing the matter thoroughly lest the settlement
fall through. This is a very unsatisfactory state of things and it is to be hoped that a greater
degree of responsibility will be shown on these matters by both judges and lawyers".
For the foregoing reasons it is my view that the application of 4th defendant-petitioner
should be allowed. The 3rd defendant petitioner has no ground to challenge the propriety of
the
384
impugned judgment by way of revision as he is entitled to invoke section 48(4)(iv) of the
Partition Act. Hence the application of the 3rd defendant-petitioner is refused.
The judgment and interlocutory decree are accordingly set-aside and the learned District
Judge is directed to investigate the title afresh, affording both the 3rd and 4th defendant
petitioners an opportunity to participate at the trial.
I make no order as to costs.
Application allowed.
Judgment/interlocutory decree set aside.
Trial to proceed.

24
Partition suit- The importance attached to establishing the identity of the
corpus- The requirement that the corpus should be an independent land
and not a portion of a larger land- The system of land measure computed
according to the extent of land required sowing with paddy or Kurakkan.
Case No.CA 957/96 (F) DC Matugama 1021 P
Kalamba Arachchige Pedoris Vs.
Madawala Wattage Benjamin
S.N. Vijithsingh for the 14th Defendant- Appellant and Sanath Vitharana
with Mahanama Dissanayake for 1 A, 1B Substituted Plaintiff-Respondent.
Argued on : 05.03.2012 Decided on :
22.05.2012.
A.W.A. Salam J.
This is an appeal from the judgement dated 12 September 1996 to partition the
land depicted in the preliminary plan bearing No 195 dated 30 December 1986
made by P D C W Hewadikaram, Licensed Surveyor and Commissioner. The
only question that arose for determination in the district court was whether the
land depicted in the preliminary plan is a portion of a larger land depicted as lot
103 in the village final plan No 82, in extent 10 acres 2 roods and 13 perches.
According to the plaintiff, the corpus is known as Kanapatymulle Kumbura
Pitakattiya and Nagahapaliya. The contesting defendant, namely, the 14th
defendant-appellant maintained that the expression "Pitakattiya" in Sinhala is
used to refer to the portion of a land outside a paddy field and therefore the land
described as "Kaapathimulle Kumbura Pitakattiya" cannot be considered as a
land of 5 bushels of paddy sowing extent. On behalf of the appellant it was
contended that 5 bushels being equivalent to 10 roods as per decision in
Ratnayaka Vs Kumarihamy 2002 Vol 1 SLR page 60, the corpus depicted in the
preliminary plan is a portion of a larger land. For purpose of convenience the
relevant passage from the judgement in Ratnayaka Vs Kumarihamy is
reproduced below...

25
"The boundaries given in the deeds are at variance with the boundaries shown in
the preliminary plan. Learned Counsel for the defendant-appellants contended
that the English equivalent to the customary Sinhala measure of sowing of one
laha is one acre. However, it is to be noted that this system of land measure
computed according to the extent of land required sowing with paddy or
Kurakkan vary due to the interaction of several factors. The amount of seed
required could vary according to the varying degrees of fertility of the soil, the
size and quality of the grain, and the peculiar qualities of the sower. In the
circumstances, it is difficult to correlate sowing extent accurately by reference
to surface areas, (vide Ceylon Law Recorder, vol. XXII, and page XLVI)".
Accordingly, it is difficult to adopt a uniform method to ascertain the extent of a
land in reference to the paddy sowing quantity. Even though the appellant
contested the identity of the land alleging what was surveyed at the preliminary
survey was portion of a larger land, he has failed to take out a commission to
survey the land or to superimpose the plan depicting the larger land on the
preliminary plan.
When the plaintiff was under cross examination he was not questioned as to the
boundaries of the corpus. It was merely suggested to him, under cross
examination that the land depicted in the preliminary plan is a portion of a larger
land which suggestion the plaintiff refuted and maintained that the corpus he
sought to partition is a separate land.
The appellant in the course of presenting his case produced the final village plan
bearing No 82, which depicts lot No 103 in extent of 10 acres 10 roods and 13
Perches. However, the appellant has failed to produce any other documents to
establish that the corpus is part of larger land depicted in the final village plan.

26
According to the commissioner the land he surveyed for purpose of preparing
the preliminary plan is the identical land that is sought to be partitioned. The
learned district judge having considered the evidence adduced by both parties
on the question of the identity of the corpus has come to the conclusion that the
land sought to be partitioned is not a portion of a larger land as claimed by the
appellant, but an independent entity as depicted in the preliminary plan and
answered the point of contest on the identity of land in favour of the plaintiff.
Taking into consideration the material considered by the learned district judge to
arrive at this conclusion, I am of the view that he has properly analysed the
evidence and come to the right decision. Hence, the appeal preferred by the
appellant merits no favourable consideration and therefore the appeal is
dismissed subject to costs.
Judge of the Court of Appeal.
The requirement to give the undivided share of the soil and rights each party is
entitled to in the interlocutory decree- failure to specify the specific undivided share-
consequences
C. A. Appeal No. 1104/96(F)
D. C. Kalutara Case No. 4259/P

27
16. Thotage Ariyasena
78. Pritman Dias Gunawardana
Vs
Maddumadevage Alen Bombuwala.
Asoka Fernando with Ms. A.R.R. Siriwardane for the
DefendantAppellants 1st, 4th and 16th and 78th Defendant-
Appellants.
Champaka Ladduwahetty for the Respondent.
Argued on: 24.07.2014. Decided on:
06.08.2014.
A.W.A. Salam., J. (P/CA)
This is a partition action. The judgment and the interlocutory
decree impugned in this appeal are dated 21.06.1996. The
learned District Judge having decided that the parties should be
allotted undivided shares failed to give exactly the shares each
party will entitled to in the judgment. The learned District Judge
in that judgment states without specifying the undivided rights of
the parties that the plaintiff should tender a schedule of shares
and if the schedule of shares so tendered is consistent with the
judgment it should be accepted as part and parcel of his
judgment.
This judgment of the learned District Judge is totally violative of
the provisions of the partition law. The judgment in the strict
sense of the law cannot be regarded as a proper judgment in view
of the direction given by the learned District Judge that the
schedule of shares directed to be tendered by the plaintiff should
be accepted as part and parcel of his judgment. This being
plainly obnoxious to the provisions of the partition law I have no
alternative but to hold that the learned District Judge has failed
to discharge the elementary duty of discharging the most
important aspect in the case. It is settled law that in a partition
action the trial judge must decide the nature and extent of the
interest each party is entitled to upon an examination of the title
in terms of Section 25 of the Partition Law.

28
In C. A.. 116 and 1167/96(F) it was held that the failure of the
District Judge to indicate the undivided interest of each party in
the interlocutory decree is a fatal irregularity which gives rights
to the judgment and interlocutory decree having to be set aside.
It is appropriate at this stage to refer to the decision in Memanis
Vs Eide 59 Ceylon Law at page 46. H/L Basnayake, C.J. with
H.N.G. Fernando concurring laid down the proposition that it is
imperative to include the undivided interest of each party in the
interlocutory decree. The relevant passage of the said judgment is
quoted below.
“In his judgement the learned that district judge says;
“plaintiff’s proctor will file a schedule of shares which
when filed will form part and parcel of this judgement”
and there is a schedule of shares filed which he has
adopted in entering the interlocutory decree. Section
25 of the Partition Act, provides that the judge shall
examine the title of each party and shall hear and
receive evidence in support thereof and shall try and
determine all questions of law and fact arising in that
action in regard to the right, share or interest of each
party to, of, or in the land to which that action relates,
and shall consider and decide which of the orders
mentioned in section 26 should be made. In the
instant case there has been no determination of the
shares of the parties as required by the Partition Act. It
is the shares so determined by the judge that the court
is required to enter in the interlocutory decree. The
course taken by the learned district judge is contrary
to the provisions of section 26 of the partition act. ”
Based on the above two decision I am of the view that the
impugned judgement cannot be allowed to stand as it is totally
inconsistent with the provisions of the partition law.
In the circumstances the impugned judgment is set aside and the
case send back for re-trial.
PRESIDENT OF THE COURT OF APPEAL

29
Substitution- suppression- revision application-Maintainability

30
CA Appeal No. CA 1787/2003
D.C. Kurunegala 829/P
Siri Amarasingha
Petitioner
Vs
P. Kumarihamy
Substituted plaintiff respondent and others.
Before: A.W.A. SALAM, J.
Counsel: Nihal Jayamanna PC with Ajith Munasingha for the petitioner and
Mahanama de Silva for the 7th defendant- respondent
Decided on 20.11.2008
Abdul Salam J.
This is an application made in revision by the petitioner to
aside the order dated 2 September 1998 of the learned
district judge.
The facts briefly are that the learned district judge delivered
judgment on 11 July 1996 and directed that interlocutory be
entered in the above partition action, to partition the corpus
among the following parties in the proportion of the
undivided shares indicated below.
1. 4th defendant, substituted plaintiff
C.H.M.Pabawathie Kumarihamy Waduragala -
1/7 share.
2. Original plaintiff, presently 1st defendant
C.H.M.Chandra Bandara - 1/7 share.
3. 3rd defendant, Soma Murial Waduragala - 1/7
share.
4. 4th defendant, Dhanawathie Kumarihamy
Waduragala - 1/7 share.
5. 5th defendant, Sardha Kumarihamy

31
6. 6th defendant C.H.M.Candrathilaka Bandara -
1/7 share.
7. 7th defendant Chandrakanthi Kumarihamy
Subsequent to the entering of the interlocutory decree and
before the conclusion of the partition action the 1st
defendant has transferred by an irrevocable deed of gift
bearing No 3394, all the rights he had inherited from his
father and the rights acquired by virtue of deed Now 3387 to
the petitioner.
Thereafter pending the termination of the partition action,
the 1st defendant died on 21 March 1998 and three persons
including the petitioner applied to have themselves
substituted in place of the deceased 1st defendant.
Consequently, an inquiry into the said applications for
substitution had been held and the petitioner produced a
power of attorney granted to him by the 1st defendant to
prosecute the action on his behalf along with an affidavit to
that effect and the deed No 3394 referred to above.
The learned district judge made the impugned order dated 2
September 1998 refusing the application of the petitioner for
substitution on the grounds referred to therein and
proceeded to substitute the 6th defendant on the basis that
the 6th defendant had applied for letters of administration to
administer the estate of the deceased 1st defendant.
Thereafter final decree was entered on 12 November 1999
and upon the application of several parties, the learned
district judge then permitted the sale of certain lots, by his
order dated 30 September 2002.
The petitioner has filed the present application in revision
nearly 1 near and 15 days after the order dated 30 September
2002 and four years after the order made in relation to the
application for substitution.
It is interesting to note that the petitioner has filed an
appeal (CA 29/2000 F) against the judgment and
interlocutory decree entered in the partition action on 17

32
December 1999 and the same had been dismissed pursuant
to an application made by the petitioner to withdraw the said
appeal on 5 August 2003, reserving his right to vindicate his
claims, in a civil court. The Judgment and order, the
petitioner seeks to assail in this revision application includes
the judgment and interlocutory decree the petitioner
challenged in the exercise of his purported rights of appeal in
CA 29/2000 (F).
Quite surprisingly, the petitioner has suppressed the fact
that he had appealed against the judgment and the
interlocutory decree entered in the partition action in CA
29/2000 F and that he had withdrawn the said appeal,
subject to the liberty of filing a civil suit to vindicate his
rights.
The petitioner has also made the second application to the
district court to have himself substituted in place of the
deceased 1st defendant on 15 November 1999. This fact also
has been suppressed by the petitioner in his application to
this court for revision.
Quite apart from the fact that the matters averred in the
revision application cannot give rise to any necessity to
revise the judgment, interlocutory decree and the order
impugned in these proceedings, the suppression made by the
petitioner in his application, clearly shuts him out from
invoking the revisionary jurisdiction of this court.
For the reasons stated above the application for revision
cannot be maintained by the petitioner as is presently
constituted. Hence, the revision application made by the
petitioner is dismissed subject to costs.
Judge of the court of appeal

33
AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT- Section 66 of the Partition
Act-
AGREEMENT AS TO THE CORPUS IN THE PARTITION SUIT-
Section 66 of the Partition Act- After a partition action is duly
registered as a lis pendens under the Registration of Documents
Ordinance, no voluntary alienation of any undivided share or
interest or in the land to which the action relates shall be made
or effected until the final determination of the action. The
prohibition against alienation of undivided shares under section
66 has been held not to affect the disposal of property, by
expressly charging or disposing of interest to be ultimately
allotted to parties in the action.
Abdus Salâm, J.
The deceased-plaintiff filed action to partition the defined and
divided allotment of land known as lot 3 of "Welle Elabodawatta"
depicted in final plan of partition No. 366, filed of record in DC
Kalutara case No. 31046. There was no corpus contest and an
important feature in the case was the agreement of the parties as
to the identity of the land sought to be partitioned.
Devolution of title to the subject matter, in terms of the amended
plaint, starts with the original ownership attributed to (1) Liyasel
Fernando (2) Andiris Fernando (3) Peter Fernando (4) Michael
Fernando (5) Melie Fernando (1stdefendant-respondent) and (6)
Punchinona Fernando (2nd defendant-respondent). Liyasel
Fernando and Andiris Fernando had died without marriage and
issues and their rights had devolved on the surviving collaterals
Peter Fernando, Michael Fernando, Melie Fernando and
Punchinona Fernando.
Peter Fernando has died interstate leaving as heirs the 3rd
defendant-respondent Thilakaratna Fernando and Kamalin
Fernando. Kamalin Fernando had died leaving as her heirs her
husband Sisil Clement Silva (4thdefendant-respondent) and her

34
children Roshan Chandima de Silva (5thdefendant-respondent)
and Ranga Vides Silva (6th defendant-respondent).
The 1/4th share of Michael Fernando from and out of lot 3, which
gave rise to the main controversy in the case, has been
transferred on deed No 509 dated 15th December 1992 attested
by H. R.
Marikkar to the plaintiff. The devolution of title set out in the
plaint is as follows.
1. Plaintiff - 8/32
2. 1st defendant - 8/32
3. 2nd defendant - 8/32
4. 3rd defendant - 4/32
5. 4th defendant - 2/32 6. 5th defendant -
1/32
7. 6th defendant - 1/32
The plaintiff also pleaded in the amended plaint that even though
the 17th defendant-respondent and 18thdefendant-appellant had
allegedly purchased rights from Michael Fernando on deed No's
6240 and 3124 respectively, the said deeds are obnoxious to
section 66 of the Partition Act and of no force or avail in law and
no title passes on the said deeds.
The contention of the 18th defendant-appellant and 17th
defendantrespondent (hereinafter collectively referred to as the
"contesting defendants") was that Michael Fernando referred to in
the amended plaint transferred an undivided (1) 10 perches on
deed No 2741 dated 23rd April 1987, (2) 5 perches on deed No
2753 dated 11th May 1987, and (3) 10 perches on deed No 2808
dated 3rd June 1987 and (4) 10 perches on deed No 2948 dated
20th January 1988 aggregating to 35 perches from and out of the
right, title and interest that he would be declared entitled to in
the partition action to them and therefore the plaintiff-respondent
is not entitled to any shares from the corpus as Michael
Fernando did not have any rights in lot 3 to alienate, when he
had purportedly transferred ¼ share to the plaintiff on deed No
509.

35
The dispute therefore narrowed down as to whether the rights in
the land had devolved on the parties, as set out in the amended
plaint or in the statements of claim of the contesting defendants.
By judgment dated 15th June 1998 the trial judge held inter alia
that relied upon by the contesting defendants are obnoxious to
section 66 of the Partition Act and no rights pass on the said
deeds. Hence, he declared deed No's 6240, 3124 and several
other deeds of the same type as being void in law. The 18th
defendant-appellant has preferred the instant appeal, to have the
said judgment of the learned district Judge set aside and the
partition action dismissed.
Admittedly, Michael Fernando was the 32nd defendant in partition
action No 31046, in addition to his being one of the legal
representatives of the deceased plaintiff. In that case the
32nddefendant Michael Fernando was allottedlots 15 and 22
depicted in plan of partition No. 366. Besides, in terms of the
final decree, he was also entitled to an undivided 1/4th share
from and out of lot 3 depicted in plan No 366. It is common
ground that the subject matter according to the preliminary plan
is in extent of 1Rood and 27.8 Perches. The share claimed by the
plaintiff is 16.95perches being equivalent to 1/4th parts of the
corpus. Based on the claim made by the contesting defendants,
on the strength of the pending partition deeds, their claim cannot
extend to more than11.3 perches of the corpus, being 1/6 share
of John Fernando.
There was no dispute that Michael Fernando was declared
entitled to lots 15 and 22 in extent 1 Rood 16.33 Perches and 1
Rood 13.30 Perches respectively in terms of the final decree
entered in partition action No 31046. It is somewhat striking that
Michael Fernando has got both these lots15 and 22 as the 32nd
defendant in that case and therefore he could undoubtedly
dispose of the rights by expressly charging or disposing of his
interests to be ultimately allotted to him in that action.
The total extent of the lots 15 and 22 allotted to Michael
Fernando works out to 2 Roods and 29.63 Perches. He has
transferred the right, title and interest that he would be declared
entitled to in the partition action, on six occasions. As far as the

36
present appeal is concerned, the following deeds of transfers
appear to be noteworthy.
They are…
Deed 2747 - to the 17thdefendant - 10 perches
Deed 2753 - to the 18thdefendant -
perches
5
Deed 2808 - to the 18thdefendant -
perches
10
Deed 2747 - to the 18thdefendant - 10
perches
Michael Fernando also prominently featured in the final
decree entered in the previous partition action in relation
to lot 3 which is the subject matter of this case. In actual
fact lot 3 in that case was allotted in lieu of the undivided
shares of the deceased plaintiff John Fernando and in
terms of the final decree allotted to 1 to 7 substituted
plaintiffs. It is common ground that Michael Fernando is
one of the children of John Fernando (deceased plaintiff)
and a substituted-plaintiff in the action.
An important legal question that arises for consideration
is whether the deeds written in favour of the contesting
defendants are obnoxious to section 66 of the Partition
Act, as has been held by the learned district Judge.
Section 66 of the Partition Act, lays down inter alia that
after a partition action is duly registered as a lis pendens
under the Registration of Documents Ordinance, no
voluntary alienation of any undivided share or interest or
in the land to which the action relates shall be made or
effected until the final determination of the action. The
prohibition against alienation of undivided shares under
section 66 has been held not to affect the disposal of
property, by expressly charging or disposing of interest to
be ultimately allotted to parties in the action. Such
dispositions are not considered as being obnoxious to
section 66 of the Partition Act. The scope and the type of

37
restrictions imposed by section 66 (previously under
section 17 of the Partition Ordinance No 10 of 1863) have
been the subject of the decision of the appellate courts in
several matters. However, in my view suffice it would be to
refer to the judgment in the case of Koralage Podinona Vs
Sunny Fernando[2].
Based on the decision of Stanley Gunawardena J, in Koralage
Podinona (supra), it is crystal clear that the different dispositions
made by Michael Fernando in favour of the contesting defendants
in this case, are not obnoxious to the prohibition imposed under
section 66 of the Partition Act, for all those dispositions deal with
undivided extent of the right, title and interest of Michael
Fernando to be finally allotted in the partition action, as opposed
to the prohibited nature of alienation involving undivided shares
from and out of the corpus. In the circumstances, it would be
seen that the learned trial judge has misread the deeds of the
contesting defendants as being obnoxious to section 66 of the
Partition Act, which findings I think should stand corrected at
the outset, as the deeds are perfectly valid in law. Nevertheless
the question whether title in respect of lot 3 could pass on the
said deeds is a different issue and should be considered
separately focusing on the contents of the deeds, by
ascertaining exactly as to what Michael Fernando intended to
transfer on those deeds.
It was contended on behalf of the contesting defendants that
without instituting a partition action to divide lots 3, 15 and 22
the plaintiff-respondent who got undivided shares from and out
of Lot 3 cannot maintain the present action in respect of Lot 3
only, as the contesting defendants hold right, title and interest
that would be allotted to Michael Fernando in the partition action
to the extent of at least 35 perches out of Lot 3. This argument of
the contesting defendants is not only sustainable in law but
inconsistent with the facts of the case. It is settled law that an
action for the partition of more than one land can only be
brought, if the lands sought to be partitioned are contiguous in
nature and the devolution of title is common to all.

38
The preliminary plan prepared in this matter does not indicate
Lot 15 and/or Lot 22 as being adjacent or bordering the subject
matter Lot 3. On an examination of the devolution of title
applicable to all three lots it is hardly possible to say that the
devolution of title is common to all three lots. As such, even if the
plaintiff-respondent was keen, yet the law does not allow him to
have recourse to one partition action to partition all three lands
in one single action, as the allotments of land the contesting
defendants submitted should be brought in for that purpose, do
not form contiguous allotments and come under a common
devolution of title.
As far as the interlocutory decree entered in partition action
31046 is concerned, one has to be mindful of the fact that
Michael Fernando has been declared entitled to three allotments
of land, in two different capacities. He has been declared entitled
to lots 15 and 22 in his capacity as the 32nd defendant. In the
result he became the sole owner of the entirety of lots 15 and 22
in an unqualified manner without having to prove anything
further.
As regards lot 3, the district Judge after the investigation of title
under section 25, declared and awarded rights to John Fernando
(the deceased-plaintiff) in the name of the legal representatives in
a representative capacity. For instance, if John Fernando had
another child who has not been substituted as a plaintiff, would
it mean that the child so left out should be deprived of paternal
inheritance?. The answer to this question under no
circumstances can be adverse to the child concerned.
By the mere fact that certain persons were substituted in place of
the deceased plaintiff and declared to be entitled to undivided
rights in the land and that in lieu of those undivided rights they
are allotted rights under the final decree, by itself is insufficient
to make the substituted plaintiffs, co-owners of lot 3, unless they
are able to establish their right of inheritance from John
Fernando. As a matter of fact the district Court is not expected to
carry out an investigation of title to ascertain as to the manner in
which the rights of a party, who had died pending the
determination of the action and declared to be entitled to

39
undivided shares and/or given rights under the final decree, had
passed hands. Thus, it would be seen, in so far as lot 3 is
concerned, Michael Fernando does not per se become entitled to
any rights from an out of Lot 3, directly under the final decree.
His title to an undivided 1/6th share of Lot 3 depends on two
factors, namely that John Fernando is declared entitled to a
particular lot under the final decree and that Michael Fernando is
a son of the said John Fernando. Hence, it could be seen that
even though the deeds produced by the defendants do not offend
the Provisions of section 66 of the Partition Act and its objectives,
nevertheless no rights can pass automatically on those deeds
without proof of heirship. This would make it abundantly clear
that Mike Fernando has not been declared entitled to an
undivided 1/6th share of lot 3 to enable the contesting defendants
to avail of the pending partition deeds to acquire rights from and
out of lot 3, in contrast to the acquisition of rights from and out
of lots 15 and 22.
As regards lots 15 and 22 one cannot think of any such
impediment in the way of the contesting defendants. It cannot be
argued that Michael Fernando is not directly entitled to the said
lots in terms of the interlocutory decree and final decree entered
in the case. As such it was within the power of Michael Fernando
to dispose of his rights without infringing the provisions of
section 66 of the Partition Act by assignment of right, title and
interest that he would be declared entitled to in the partition
action. As such dispositions made by deeds produced by
defendants cannot stand in the way of their right to acquire of
rights in lots 15 and 22.
At this stage it is necessary to emphasize that Michael
Fernando along with 5 others are deemed to have been
allotted lot 3 in terms of section 48 (6) of the Partition Act.
Here, the clear distinction that arises is that Michael
Fernando was allotted lots 15 and 22 by the final decree
in the former partition action and is deemed to have been
allotted lot 3 along with 5 others. Significantly, Michael
Fernando has only transferred his right title and interest
that are to be allotted in the partition action and not the
right title and interestdeemed to have been allotted under

40
section 48 (6) of the Partition Act. (Emphasis added to
demonstrate the weight attached to direct allotment of
shares as opposed to allotment of shares under the
deeming provision). This distinction clearly shows that
Michael Fernando had no intention to part with the rights
he was to get under section 48 (6) but manifestly intended
in no unmistakable terms to pass undivided interest from
and out of the right, title and interest he was to be
declared entitled to under the partition decree, which
culminated in his being unconditionally declared entitled
to lots 15 and
22.
As spelled out above, at the most the contesting
defendants can only claim their share from Michael
Fernando only against lots 15 and 22. As such the claim
of the contesting defendants as far as lot 3 is concerned
should necessarily fail. The resultant position therefore
would be that the learned district Judge’s findings cannot
be critically looked at, except that he should have
refrained himself from declaring the deeds produced by
the contesting defendants as being obnoxious to the
prohibition imposed by section 66 of the Partition Act. As
stated above it is my considered view that the deeds in
question are absolutely valid and perfectly in order except
that no title passes on to the contesting defendants upon
those deeds in as much as the subject matter is
concerned. As it is quite evident from the words employed
by the notary in those deeds, Michael Fernando has in
fact transferred his right, title and interest that he would
be declared entitled to and such dispositions are only
referable to lots 15 and 22 to which he has been in fact
directly declared entitled to.
For the foregoing reasons, it is my considered view that
the appellant is not entitled to succeed in his appeal.
Consequently, the petition of appeal of the 18th
defendantappellant is hereby dismissed subject to costs.

41
Judge of the Court of Appeal
CA Appeal No 518/98 (F)
D.C. Kalutara 6177/P
Susil Harischandra,
18th defendant-appellant
Vs
Gallage Leelawathie Fernando
Before: A.W.A.Salâm J.
Rohan Sahabandu for 18th defendantappellant and
S.W.Premaratna for the plaintiff-respondent.
Decided on: 01.04.2009
[1] 109.63 perches
[2] 1986 2 CALR 217
AMENDMENT OF INTERLOCUTORY DECREE-INSUFFICIENT EVIDENCE-
Section 34
A W A Salam, J
This is an application to revise and set-aside the judgement and
interlocutory decree dated 11th November 2003 entered in the
above case. The facts briefly are that the parties agreed to have the
corpus in the action partitioned in terms of the evidence led at the
trial without any points of contest being raised. The plaintiff
respondent, 2nd defendant-respondent and the 4th defendant-

42
petitioner gave evidence at the trial. Subsequently judgement was
entered followed
by an interlocutory decree to have the corpus
partitioned. Accordingly the 4th defendant- petitioner was declared
entitled to purchase an extent of 10 perches of land from and out of
the rights of the plaintiff-respondent so as to include the buildings
marked as “1, 2 and h”.
Subsequently, the 4th defendant-petitioner made an application to
have the interlocutory decree amended, on the basis that the
plantations he was declared entitled to had not been ordered to be
included into the lot to be allotted to him. The learned district Judge
by his order dated November 11, 2003 refused the application on
the basis of section 33 and 34 of the Partition Act. According to the
learned judge, the improvements to which the 4th
defendant-
petitioner has been declared entitled to have been directed to be
included into his lot as far as practicable and in the event of the said
petitioner not getting the improvements or part thereof is entitled to
compensation under section 34 of the Partition Act. The impugned
order of the learned district Judge does not appear to be contrary to
law or inconsistent with the evidence led at the trial. In any event
the 4th defendant-petitioner has failed to adduce any exceptional

43
circumstances to warrant the conclusion that the judgement and
interlocutory decree should be revised.
For the foregoing reasons, I see no grounds whatsoever to interfere
with the judgement, interlocutory decree and the order dated
November 11, 2003. Hence the revision application filed by the 4th
defendant-petitioner stand dismissed subject to costs.
C. A. No: CA 254/ 2004
DC Horana: 48/99P
Mahawattage Don Chandrasekara, 4th Defendant-Petitioner
Vs Mahawattage Don Nandasena - Counsel : Jacob Joseph for the 4th
Defendant-Petitioner and Asoka Serasingha for the Respondents
AMENDMENT OF THE POINT OF CONTEST- PARTITION- IDENTITY OF THE
CORPUSIMPORTANCE
C.A. No. 1428/2004
D.C. Negambo 2534/P
S. K. Jayaweera.
Plaintiff-Petitioner
1.Ranasingha Hettiarachchige
Don Robert Ranasingha
Before : A.W.A. Salam, J.
Counsel : Dr Sunil F A Cooray with Shavindra Silva for the
PlaintiffPetitioner and Kuwera de Soyza for the Defendant-Respondents.

44
28.05.2009
A.W. Abdus Salam, J.
This is an application to revise the order of the learned district Judge
dated 22 March 2004 by which the point of contest No 1, as suggested by
the plaintiffpetitioner had been amended.
The facts which led to the filing of the instant revision application are that
the plaintiff instituted action to partition the land called “Piris Yala
Godella” morefully described in the schedule to the plaint. The extent of
the corpus as described in the plaint was 4 acres 2 roods and 24 perches.
According to the plaintiff the land sought to be partitioned is identical to
that of the land depicted in the Surveyor General’s title plan No 129225.
However, preliminary plan prepared by the commissioner depicted only a
portion of the whole land in extent 3 Roods and 33.5 perches. According
to the remark made by the surveyor, lot 1 depicted in preliminary plan No
1409 dated 22nd and 27th of August 1994 is a portion of the lots depicted
as A and B in final plan of partition No 1269Q filed of record in DC
Negambo case No 11388. In the report attached to the preliminary plan
in column 5, the commissioner has categorically mentioned that the land
surveyed by him is only a portion of the land is sought to be partitioned
and set out in the schedule to the plaint.
In the circumstances, the plaintiff has obtained a fresh commission
directing the Commissioner to superimpose lot 6977 depicted in the
Surveyor General’s plan No 129225. In terms of the second commission
issued, the Commissioner superimposed the plan of the Surveyor General
and prepared plan No 1409A and report attached to it. The subsequent
survey carried out by the Commissioner as per plan No 1409A, lots 1, 2
and 3 are in extent of 4 Acres 2 Roods 24 perches which is equivalent to
the extent given in the Surveyor General’s plan.
The learned counsel of the petitioner has submitted surveyor reported
that the boundaries did not exist on the ground and that without a proper
identification of the boundaries he was unable to demarcate the same on

45
the ground. It is significant to note that the same Commissioner in
executing the first commission had demarcated the boundaries on the
ground by means of pegs, even though such boundaries did not exist on
the ground. It is equally important to note that the surveyor when
executing the first commission has superimposed plan No 1269Q and
thereafter demarcated the boundaries on the ground. However when he
executed the second commission, without demarcating the boundaries on
the ground, the surveyor had stated that he was unable to demarcate
them without proper identification of the boundaries. In the
circumstances, the plaintiff has moved for a commission once again
requiring the surveyor to demarcate the boundaries on the ground, after
the superimposition of the crown plan. This application of the plaintiff had
been refused by court by order dated 11 November 2003.
Thereafter the trial had commenced on 22 March 2004 and the plaintiff
had raised 4 points of contests. The point of contest concerning the
identity of the corpus as suggested by the plaintiff was whether the land
sought to be partitioned has been depicted in plan No 1409 A. Upon the
defendants objecting to the said point of contest, the learned district
Judge amended the same and recast the point of contest to read as
"whether the land sought to be partitioned has been depicted in plan No
1409. This has resulted in the plaintiff having to confine himself to a
portion of the land set out in the plaint and portion of the land referred to
in the lis pendends that has been registered for the purpose of the
partition action.
As regards the failure of the plaintiff to seek and obtain leave of this court
to appeal against the impugned order within the timeframe allowed in law
the plaintiff states that he was unable to obtain certified copy of the
proceedings dated 22 March 2004 and the counsel in Colombo could not
be contacted and retained as it was the April vacation of the courts.
Further the plaintiff states that he was not able to obtain certified copies
of the entire proceedings in time and therefore prevented from making an
application for leave of his court to prefer an appeal against the said
order.

46
Having considered the application made by the plaintiff, I'm of the view
that in any event exceptional circumstances do exist in this case to review
the order of the learned district Judge made with regard to the point of
contest suggested by the plaintiff touching the identity of the corpus.
As the plaintiff has referred to in the plaint a land in extent of 4 Acres 2
Roods and 24 perches, the list pendends too has been registered in
respect of a land which is in that extent and the plaintiff has caused the
surveyor to superimpose the crown plan and survey the entire extent
given in the plaint with details of claims made by each party and others
who claimed rights before the surveyor, learned district Judge should
have given the plaintiff an opportunity of establishing the corpus to be
what he undertook by raising the point of contest in relation to the plan
No 1409.
For the foregoing reasons, it is my considered view that the district Judge
should not have amended the point of contest No 1. As such, acting in
revision I set aside the impugned order of the learned district Judge and
direct the learned district Judge to accept the point of contest raised by
the plaintiff referring to plan No 1409A and proceed to investigate title.
I make known as to costs.
Judge of the Court of Appeal.
APLICATION FOR REVISION AND/OR RESTITUTIO IN INTEGRUM- PETITIONER HAD NO
RIGHTS IN THE CORPUS- MAINTAINABILITY
CA 215//2002
DC Kandy 125781/P
D.A.S.K. Dissanayaka,
Vs
M.R.Prema Lal de Charles,

47
Dr F.A.Sunil Cooray for the petitioner and Nihal Jayamanne PC with Ajith
Munasingha for the substituted plaintiff-respondent.
Decided on: 17.03.2009
A.W.Abdus Salâm, J.
The petitioner has filed the present application in revision to have the trial
proceedings in partition action No 12578/P in the district Court of Kandy
and the judgment and interlocutory decree entered in the case set aside and
to obtain an order of court to have the petitioner added as a party defendant
in the action. He also seeks an order from this court for a reasonable
opportunity to file a statement of claim and to take other steps to contest
the partition action.
When the matter was taken up for argument on 30 January 2009, the
learned president's counsel of the substituted plaintiff-respondent raised a
preliminary objection with regard to the purported rights of the petitioner to
have and maintain the present application for revision and/or restitutio in
integrum, inasmuch as the petitioner had no locus standi to maintain the
application as he had no rights in the corpus at the time or prior to the
entering of the judgment and interlocutory decree.
The plaintiff-respondent instituted the partition action to have the corpus
partitioned between him and the 1st defendant-respondent in the proportion
of 2/3 and 1/3. The 2nd defendant-respondent has been made a party to
the partition action as she was attempting to enter the corpus without any
manner of title. The 1st and the 2nd defendants filed a joint statement of
claim and prayed inter alia that they be given an equitable portion of the
subject matter together with the buildings and Plantations standing thereon.
At the commencement of the trial the parties informed the learned district
Judge that there was no contest with regard to the identity of the corpus
and that they were agreed to have the land depicted in the unnumbered
plan dated 8th September 1911 shown by way of superimposition on the
preliminary plan No 590 dated 21st April 1992 marked as X be treated as
the subject matter of the partition action. Pursuant to the said agreement,
the plaintiff testified as to the devolution of title as averred in the plaint.
At the conclusion of the trial, the learned district Judge delivered his
judgment accepting the land shown by the superimposition in red lines as
the subject matter of the partition action and directed that the corpus be
partitioned between the plaintiff-respondent and the 1st
defendantrespondent in the proportion of shares, referred to by the plaintiff-
respondent in his evidence. The petitioner in his petition has attempted to

48
make out that the plaintiff had not disclosed deed No 9747 as being a
material deed with regard to the devotion of title, even though by deed No
593 dated 3 September 1991 (pending partition deed) the plaintiff has
purchased from the 1st defendant and his brother somadasa the right title
and interest they will be declared entitled to by the final decree to be entered
in the partition action in question. The petitioner states that in deed No 593,
the vendors have recited title from deed No 9747 dated 12 October 1916 and
therefore cannot be unaware of the said deed recited as being the source
through which the vendors in deed No 593 have acquired title.
The position of the substituted plaintiff-respondent is that deed No 593
deals with two lands and on a reading of the schedule to the deed it is quite
clear that the 2nd land described in the schedule to the said deed is the
subject matter of the partition action and the first land has no relevance
whatsoever to the corpus. In other words the substituted plaintiff-
respondent maintains that he has acquired title to 2nd land dealt in deed No
593, by purchasing the right title and interest that would be allotted to the
2nd named vendor Samarasingha.
The substituted plaintiff respondent has submitted that the deeds marked
as C1, C2 and C3 referred to in paragraphs 17 and 18 of the petition were
not pleaded in the joint amended statement of claim of the 1st and 2nd
defendants and therefore the relevance of the said deed was not a matter
that was required to be considered in the lower court and the petitioner is
now attempting to set out a false claim to the land and delay the conclusion
of the partition action.
As a matter of fact the 1st and the 2nd defendants in their amended
statement of claim dated 4.9.1995 filed in the district court took up the
position that Abraham Appu was entitled to lot B described in the schedule
to the said amended statement of claim by virtue of the final decree entered
in partition case No 25071 D.C Kandy and decree entered in the court of
request of Gampola in action No. 116.In terms of the said amended
statement of claim the rights of Abraham has finally devolved on
Bambarende Don Kalyanawathie Wanigaratne (2nd defendant-respondent), -
do- Gunawathie, do- Francis, -do- Arthur and –do- Badra. By way of relief
the 1st and the 2nd defendant-respondents have sought that they be given
an equitable portion of the land.
By paragraph 21 of the petition the petitioner has accepted the devolution of
title of Abraham up to Podihamine whom the petitioner says became the sole
owner of the property on deed No.2639 dated 9th August 1949 mentioned in
their amended statement of claim filed before the learned district judge.
Even though in the amended statement of claim the 1st and the 2nd
defendants had stated that the rights of Podihamine devolved on the
collaterals namely, Ema Nona Gunawardena and Ariyadasa Gunawardena,
the petitioner is now trying to state by paragraph 24 of the petition that the

49
said Podihamine died on 1.10.1984 leaving an administrable estate and in
fact was administered in D.C.Kandy case No.3236/T and one Helanhamy
was granted with the letters of administration and she (Helanhamy)
thereafter by deed No.252 dated 3.5.1994 has transferred the corpus to
D.A.Kusumalatha Malani who is a sister of the petitioner. In the same
breath the petitioner has attempted to say that the said Kusumalatha
Malani by deed No.13805 dated 24.9.1998 attested by G.Premaratne N.P.
has transferred the rights in the corpus to the petitioner and accordingly the
petitioner is the sole owner of the corpus.
A salient defect in the petitioner's case appears to be paragraph 21 of the
petition where he has accepted the devolution of title of Abraham as set out
in the joint statement of claim of the 1st and 2nd defendants up to the point
they say Podihamy became the sole owner of the subject matter on deed No
2639. By the averment in paragraph 21 of the petition, the petitioner is now
trying to further espouse the cause of the 1st and 2nd defendants despite
the fact that they were parties in the partition action and they failed to
challenge the judgment entered in the partition action.
The judgment in the partition action has been entered on 12 March 1997.
According to the petitioner the rights of Podihamy had devolved on
Helanahamine and the latter had transferred it to the sister of the petitioner
on deed No 252 in the year 1994. More significantly the petitioner is alleged
to have acquired title from his sister on deed No 13805 on 24 September
1998. According to the Journal entries produced in this application the
partition action has been instituted on 23 August 1990. Thus, it is crystal
clear that the petitioner has based its title on a deed executed in 1998,
namely almost 8 years after the institution of the partition action and 1 year
and 6 months after the entering of the judgment. Admittedly the petitioner
was not a party to the partition action at the time when the interlocutory
decree was entered. Therefore it reveals that the petitioner had no rights to
the property at the time the interlocutory decree was entered. As the
petitioner was not a party to the partition action at the date of the
interlocutory decree, it has been submitted by the president's counsel that
the petitioner cannot be considered as a party aggrieved by the interlocutory
decree, since no decision has been made against him in the partition action.
Undoubtedly it disentitles him to contest the interlocutory decree.
In this respect the judgment of this court in case No CA 329/02 (Don
Saranadasa Ranasingha Vs Samanthi Sulochana Gunasekera) applies to
this case, being a decision made almost on identical facts to this application.
In the said judgment citing Perera, J in Perera Vs Wijewikrama 15 NLR 411,
Wimalachandra J, reiterated the following passage.
"I am of the opinion that the remedy of restitutio in integrum
can only be availed of by one who is actually a party to the

50
contract or legal proceeding in respect of which restitution is
desired" (page 413).
The Learned President's Counsel has submitted that special leave sought to
challenge the decision in Don Saranadasa Ranasingha Vs Samanthi
Sulochana Gunasekera has been refused by the Supreme Court in
application No SC (Spl) LA 161/06 by SC minutes dated 23 May 2007.
For the foregoing reasons, I am of the view that the preliminary objection
raised against the maintainability of the revision application should
succeed. Hence, the application made in revision by the petitioner stands
dismissed subject to costs.
Kwk/-
APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC 773 OF THE CPC.
REQUIREMENTS NECESSARY TO BE ESTABLISHED
Case No. CA 731/1993 (F)

51
D.C. (Kalutara). 4643/P
Payagala Badalge
Agnes,
Vs
Walathara Arachchige Piyasena,
Counsel : L.B.J Peiris for the 3rd defendant appellanN R M
Daluwatta PC for 20/24 defendant appellants Ranjan Suwandaratne
for the
Plaintiff.
Re argued on: 04.06..2007.
Decided on: 27.09.2007.
Abdul Salam, J.
Order
This order arises on an application made by the 3rd defendant appellant
seeking leave of court to adduce fresh evidence under section 773 of the civil
procedure code . In this case, the learned district judge has entered
interlocutory decree for the partition of the land, allotting shares to the
parties, as specified therein. There are three appeals presently pending in
respect of the said interlocutory decree.
The 3rd defendant appellant has made the present application, seeking
permission of court to adduce fresh evidence to establish certain other
claims to the corpus, in respect of which she has not been able to produce
all the relevant documents. 3rd defendant appellant in her statement of
claim[2] has asserted rights in the corpus from two sources. By paragraph 2
of the statement of claim, she claims title to the subject matter through two
original owners, to wit; Thebuwana Arachchige Baba Naide and Payagala

52
Badalge Lewis Gurunnanse. In paragraph 12 of the statement of claim she
states that the rights of Baba Naide referred to above were sold by fiscal
conveyance No.
7031 dated 26.7.1911 to Ordiris who was also known as ordirishamy.
As regards the rights of Lewis Gurunnanse the position taken up by the 3rd
defendant appellant is that his rights devolved on Ordiris and from him it
passed on to the 3rd defendant appellant, as it reflects in point of contest No
10. The point of contest No 10 reads as follows.
10. As pleaded in the statement of claim of the 3rd defendant did Payagala
Badalge Lewis Gurunnanse become entitled to the balance rights of the
corpus?
Or did the balance rights devolve as pleaded in the statement of claim of the
1st defendant?
As regards the devolution of title of Payagala Badalge Lewis Gurunnanse the
3rd defendant appellant seeks to produce the following two documents as
fresh evidence.
1. Mortgage bond No 18625 attested by J.P. Wijeratne N.P dated 2/7/1917.
2. Extract of the register of births bearing No 12732 dated 11/9/1923 of
Agnes.
These documents, leave no doubts as to its bearing on point of contest No
10. By producing mortgage bond No 18625 the 3rd defendant appellant
seeks to demonstrate that Payagala Badalge Baba Singho [4] enjoyed rights
in the subject matter by way of paternal inheritance and those rights
subsequently devolved on Ordiris, who is said to be the father of the 3rd
defendant appellant.
Since the 3rd defendant appellant has sought to produce new evidence, I
consider it as crucial, to touch as briefly as possible, on the question of
admission of fresh evidence at the hearing of the appeal. It is trite law, that
reception and/or admission of new evidence, additional to, or
supplementary of the evidence already taken in a court of first instance,

53
touching the matters in issue, can only be permitted subject to certain rules
that have been formulated for that purpose.
In Laad vs Marshall 1954 3 All Eng. Report 745 at page 748 Denning L J
enumerated the conditions applicable to the reception of fresh evidence, as
being such
(1) Which could not have been obtained with reasonable diligence for use at the
trial
(2) That it would probably have an important influence on the result of the
case, although it need not be decisive and
(3) That it is presumable to be believed or in other words it must be apparently
credible although it need not be incontrovertible.
The principles laid down in the case of Laad vs Marshall (supra) has been
unreservedly followed in many cases, of our courts. Some of the cases, in
which the principles have been applied are Ratwatte Vs Bandara 70 NLR
231, Beatrice Dep vs Lalani Meemaduma (1997 (3) SLR 379) and Wijekoon
vs. Wijekoon (1986) 2 SLR 325. All these authorities emphasise that
reception of fresh evidence can be justified in appeal, only if it can be shown
that the evidence could not have been obtained with reasonable diligence at
the trial.
The 3rd defendant appellant has not placed any material to satisfy that they
were unable to obtain the mortgage bond in question, upon exercise of due
diligence. The petition and affidavit filed by the 3rd defendant-appellant do
not disclose as to when the appellant made the application to obtain
certified copies of the two documents. In the absence of the 3rddefendant-
appellant satisfying the requirements that she exercised reasonable
diligence, it is my view that she cannot succeed in her application to adduce
fresh evidence. The circumstances in which the 3rd defendant-appellant now
seeks to produce fresh evidence are self-explanatory as to the negligence in
prosecuting her cause in the original court.
To grant leave in this matter, to the 3rd defendant-appellant, to adduce fresh
evidence, may result in serious prejudice and injustice being caused to the
plaintiff-respondent and other defendant-respondents.

786 digest of decided cses partition word

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