Case Laws on Partition

Partition action - identification of corpus - investigation of title - boundaries - extent - dismissal of action

1. Importance of Corpus Identification in Partition Actions In partition actions, the proper identification of the corpus (land to be partitioned) is crucial and a prerequisite for the investigation of title. If the identification of the corpus is doubtful or unsatisfactory, the partition action must fail.

2. Burden of Proof in Corpus Identification

The burden of correctly identifying the land to be partitioned, including its extent and boundaries, lies with the plaintiff, especially when contesting defendants do not seek partition.

3. Discrepancies in Land Boundaries and Extent

While minor discrepancies in extent and boundaries compared to old deeds may be acceptable, significant unexplained discrepancies can lead to the dismissal of a partition action.

4. Partial Partition Not Allowed

A partition action cannot be maintained to partition only a portion of the land. The entire land described in the action must be properly identified and partitioned.

See, Kotapamunuge Dhammika v. Bandupala Jayasundara

[SC/APPEAL/79/2019 decided on 11.12.2024]

Law of Partition - prescription - burden of proof

With regard to the onus probandi in the context of actions involving prescriptive title, the party who claims the benefit of prescriptive possession must undertake the burden of proof in a contest with the party who is able to point to a paper title, and must adduce evidence that points to a reasonable inference that he possessed the corpus in a character incompatible with, and adverse to the Plaintiff’s title. ...

The issue of prescription is primarily a question of fact which has to be determined in accordance with the circumstances peculiar to each case. It need not be demonstrated by a single identifiable act. Instead, such inference can be obtained from a state of things existing over a sustained period.

See, SC Appeal No: 78/2018 decided on 24.07.2025

Law of Partition - Sec.48 - finality of interlocutory decree

After the interlocutory decree was entered, the plaintiffs withdrew the partition action. However, in terms of section 48, subject to the conditions set out therein, both the interlocutory decree entered under section 26 and the final decree of partition entered under section 36 are final and conclusive. In other words, the interlocutory decree does not become invalid merely because the action did not proceed to finality.

See, SC/APPEAL/101/2015 decided on 03.06.2025

Law of Partition - final partition scheme - duty of the judge

This course of action is not repugnant to the Partition Law. Our courts have time and again observed that the phrase "the court shall, after a summary inquiry, confirm such scheme with or without modifications" in Section 37 (2) of the Partition Law should not be interpreted as permitting only minor alterations. In confirming the scheme, the trial judge has the discretion to adopt the partition scheme prepared by the Commissioner, with any modifications he considers justified.

See, SC Appeal No. 60/2020 decided on 03.04.2025

Partition action-Improvements made by a co-owner-Scope of his right to be allotted portion which contains the improvements-Partition Ordinance , No. 10 of 1863,ss. 4, 5.

In an action for the partition of a land owned in common the rule that a co-owner should be allotted the portion which contains his improvements is not an invariable rule ; it will not be followed if it involves substantial injustice to the other co-owners.

Where, therefore, co-owner A wrongfully demolishes a building put up by co-owner B and erects on its foundation another building, A will not, in preference to B, be allotted the portion of the land on which the building stands. The question as to who should get the lot with the building may be decided at the stage of partition if there is no provision in regard to it in the interlocutory decree.

Liyanage v. Thegiris -(1954) 56 NLR 546

Law of Partition - identification of the land - duty of the court

A partition action cannot be filed to partition a portion of the land. The entire land should be brought into the action and the co-owners of the whole corpus should be made parties. If the land to be partitioned as described in the schedule to the plaint has not been properly identified, the Plaintiff’s action shall fail. In such a situation the necessity to investigate title does not arise. Title shall be investigated on a properly identified parcel of land. The Court shall not first investigate title and then look for the land to be partitioned. It shall happen vice versa.

See, Iluppengamu Appuhamylage Suraweera v. Iluppengamu Appuhamylage Dannet Ranasinghe [SC/APPEAL/172/2015 decided on 21.05.2021]

Partition Action - Corpus Identification – Changing of boundaries - Plaintiff’s duty:

See: SC/Appeal/172/2015, SC Minutes dated 21-05-2021.

per Mahinda Samayawardhena, J.

....

The boundaries in the schedule to the plaint are given in accordance with the boundaries in old Deeds. Such boundaries are likely to have changed with the passage of time and, moreover, the existing boundaries have been identified by the Surveyor by the names of the owners of the adjoining lands. If the change in the names of the owners of the adjoining lands can be explained, a District Judge cannot dismiss a partition action by making a superficial comparison of the boundaries in the schedule to the plaint with the existing boundaries as stated in the Preliminary Plan. No such explanation was given by the substituted plaintiff in this case. The substituted Plaintiff’s evidence on the identification of the corpus as well as the pedigree was fragile. [pg. 11-12]

….

The High Court referring to Plan No. 5733 further states that if a larger land is made the subject matter of the action than what is stated in the schedule to the plaint, a land in excess of the registered lis pendens would need to be partitioned, which is unlawful. I am unable to understand this reasoning. This is not a question of enlarging the corpus but a question of identifying the corpus. The proper identification of the land described in the schedule to the plaint on the ground does not necessitate a fresh lis pendens being registered. Nor does it amount to partitioning a larger land not covered by the lis pendens presently registered. [Vide pg. 12]

The Plaintiff in this case has failed to bring the whole land into the action. In other words, the Plaintiff has failed to properly identify the land to be partitioned. Hence the Plaintiff’s action shall fail.

Law of Partition - duty of the plaintiff - duty of the Judge

It is well settled law that in a partition action, it is the duty of the plaintiff of the action to establish the identity of the land sought to be partitioned, as well as the title of the said land, to the parties in action to the best of his or her knowledge. The plaintiff should conduct an investigation to the title of the land sought to be partitioned not only as to his or her rights, but also as to the rights of the other parties, before the institution of the partition action. It is the duty of the plaintiff to set up a clear pedigree of the persons who are entitled to the land, and as to their share entitlements to the land sought to be partitioned. If a plaintiff is unable to find the entitlement of a co-owner, in my view, the plaintiff must indicate that fact in a separate averment in the plaint, and seek to leave the share of such entitlement unallocated, until established by the party who is entitled to the said share from the corpus.

See, Hettigoda Gamage Gnanawathi v. Hettigoda Gamage Sugathadasa and others [S.C. Appeal No: 44/2020 decided on 30.05.2025]

Law of Partition - Alienation of rights pending partition - Section 66 only prohibits the alienation of undivided interests presently vested in the owners - Substitution in partition actions - There is no requirement for the legal representative to file a memorandum nominating his legal representatives in the event of his death. Upon the death of the legal representative, the next in order of preference in the memorandum of the original party will assume the role. If the sole legal representative dies, a legal representative needs to be appointed, not for the deceased legal representative, but for the original party deceased - Delivery of possession in partition actions - 10 year period - Restoration of possession

See, Madara Mahaliyanage Bandusena v. Don Alfred Weerasekera (Deceased) & Others [SC/APPEAL NO: 172/2017 decided on 30.01.2024]

Partition Law, Section 18(2), Sections 19(2). 48(1) - Investigation of Title - Imperative - Should all the issues be answered?-Identification of corpus- Civil Procedure Code. Section 187- Guidelines to be followed by Trial Courts set down - When corpus surveyed is smaller/greater in extent?

On receipt of the Commission where the corpus is found to be different - in extent to the corpus revealed by the preliminary survey the District Judge should follow, one of the following courses after hearing parties.

(i) To reissue the Commission with instructions to survey the land described in the plaint The surveyor could have been examined as provided in section 18(2) of the Partition Law to consider the feasibility of this course of action.

(ii) To permit the Plaintiffs to continue the action to partition the larger land as depicted in the preliminary survey. This course of action involves the amendment of the plaint and the taking of consequential steps including the registration of a fresh lis pendens.

(iii) To permit any of the Defendants to seek a partition of the larger land as depicted in the preliminary survey. This course of action involves an amendment of the statement of claim of that defendant and the taking of such other steps as may be necessary in terms of section 19(2) of the Partition Law.

(iv) The Survey or under section 18(1)(a)(iii) of the Partition Law must in his report state whether or not the land surveyed by him is substantially the same as the land sought to be partitioned as described in the schedule to the plaint Considering the finality and conclusiveness that attach in terms of Section 48(1) of the Partition law to the decree in a partition action, the Court should insist upon due compliance with this requirement by the Surveyor.

See. Mary Nona v. Don Justin and Others [2016] 1 Sri LR 49

Law of Partition - duty of the surveyor when preparing the final plan - confirmation of the final scheme - important - Sec. 31, 33 of the Partition Law discussed

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"All what the surveyor is expected to do is to prepare the Plan in terms of the Interlocutory Decree and send it to Court for the Court to take the final decision."

"The confirmation of the scheme of partition with or without modification is an important step in a Partition Case."

in W.M.D. Theresa Jayawardena v. Kaluthanthrige Dona Madurawathie and Others (CA Case No: CA/RI/6/2017 decided on 21.11.2018)

Law of Partition - interpretation of deeds - non answering of issues

In our law, when interpreting a deed, the duty of court is to interpret it as was understood at the time of execution by the parties concerned. The deed has to be read as a whole and the spirit of it should be taken note of when arriving at its interpretation.

In a deed, if the words are clear and precise, such literal and ordinary meaning should be given. If such literal meaning leads to absurdity and inconsistency, an interpretation to avoid such absurdity and inconsistency should be given.

In the aforesaid circumstances, although it is apparent that the trial judge did not answer the eleven issues raised between parties, when reading the judgement, it’s seen that all the points of contention have been answered in the body of the judgement.

See, Maddage Semapala (deceased) v. Devika Weerakoon & others [SC Appeal No. 154/2012 decided on 23.07.2025]

Law of Partition - What will happen when the parties do not have soil rights to the corpus but some other rights? Sec. 54(1) of the Partition Law

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"So when the schedule recites "exclusive of soil rights", it goes without saying that soil rights are not included in the transfer made to Laus Casileenu. Therefore the Plaintiff and the 1st Defendant could not have got soil rights. In the text book, the Law of Partition in Ceylon, K.D.P Wikramasinghe states at page 45 that a person who is the owner of trees on a land is not entitled to institute a partition action."

P.A.D. Sunimal Damian Appuhamy v. Lankahaluge Ruben Fernando and Others [C.A. Case No.1053/1999 (F) decided on 02.08.2019]

Law of Partition - deed - Evidence Ordinance, Sec.90 - proof - presumption on the face of the deed - Civil Procedure Code, Sec.154 - authenticity of a document

"According to Coomaraswamy, (The Law of Evidence, Vol. I, pages 647-648), the authenticity of a document may be proved in any one or more of the following ways: (a) The evidence of the party who signed or wrote the document; (b) The evidence of a person who saw him sign or write it; (c) The evidence of someone who is acquainted with his handwriting. He further states in relation to (c) that, this can be in one of the three ways set out in the explanation to Section 47 of the Evidence Ordinance; (a) By the evidence of an expert who compares the writing with some other writing known to be that of the signatory; (b) By proof of the admission by the writer; (c) By comparison by the court under Section 73 of the Evidence Ordinance; (d) Circumstantial evidence arising from the intrinsic evidence of the contents or by presumptions."

See, Udage Arachchige Sirimal Kanthi Wickramasinghe & others v. Malawi Pathirennehelage Vajira Malkanthi [S.C. Appeal No. 211/2015 decided on 25.07.2025]

Law of Partition - prescription among co - owners

When a party claims undivided rights at one stage of the proceedings, it is incumbent upon him to explain how and when prescriptive possession commenced against the other co- owners. Prescriptive possession cannot commence after the institution of the action, regardless of how long the litigation may have continued.

See, Lindamilage Telex Alfred De Silva v. Uromi Shiranthi Fernando & another [SC/APPEAL/69/2019 decided on 03.06.2025]

Law of Partition, Sec.70(1), (2) - dismissal on non prosecution - a party appear by his Attorney-at-Law - its effect - failure of the judge to consider his present

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In Jayasinghe Mudiyanselage Ariyawathi v. Kehelwala Gamaralalage Nimal Padmabandu (CA/RI/21/2018 decided on 09.01.2019) the Court of Appeal held that the dismissal is not automatic when no steps are taken for two years. Before entering an order of dismissal, the Court shall be satisfied that dismissal is justified in all the circumstances of the case. Further, the Court of Appeal held that it is the duty of the Court to endeavor to compel the parties to bring the action to a termination. The Court opined, there is absolutely no reason for the District Judge to lay by a partition action ex mero motu after the Interlocutory Decree is entered. An order to lay by a case causes, especially a partition case, enormous difficulties because when the case is to be taken back to the roll, the party who makes the application shall take all the troubles to serve notices to all the parties or their registered Attorneys afresh.

Civil Law - Partition - duty of the Judge - duty of a surveyor

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It was held in that, in a partition action there is a duty cast on the Judge to satisfy himself as to the identity of the land sought to be partitioned, and for this purpose it is always open to him to call further evidence (in the regular manner) in order to make a proper investigation.

Further held, Section 16 of the Partition Law requires that a commission be issued to a surveyor directing him to survey the land to which the action relates. It implies that the land surveyed must conform substantially, with the land as described in the plaint as regards the location, boundaries and the extent. Further, it is for this reason that section 18(1) (a) (iii) requires the surveyor to express an opinion in his report" whether or not the land surveyed by him .... Is substantially the same as the land sought to be partitioned as described in the schedule to the plaint."

Law of Partition, Sec. 48 – finality of Interlocutory Decree and Final Decree – exemptions, Sec. 48(4) – powers of the District Court

"I must also make the following point clear for the benefit of the District Judges as there is an apparent confusion on that point. It may be noted that section 48 speaks of only finality and conclusiveness of Interlocutory Decrees and Final Decrees of Partition, and not of Judgments. This gives the impression that finality and conclusiveness is attached only to the Interlocutory and Final Decrees, and therefore, in between delivery of the Judgment and entering the Interlocutory Decree, the District Court can set aside the Judgment and add parties and commence trial de novo. It is not so. The entering of the Decree is a purely ministerial act and the Interlocutory Decree once entered relates back to the date of Judgment.12 In short, section 48 becomes applicable from the date of the Judgment.

The District Court can add parties, in terms of section 69 of the Partition Law, only until the Judgment is delivered and not after it."

See, W.M. Srimathi Malkanthi Madurapperuma v. W.M. Dammadinna Kumari Wijesundara [CALA/459/2006 decided on 03.10.2019]

Law of Partition - in the interlocutory decree learned trial Judge had failed to indicate the undivided interest of parties

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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.

in A.A. Maggiehamine v. A.A.D.Yohanis Appuhamy alias Yohanis Adhikari and others (C. A. APPEAL No. 664/1997 (F) decided on 13.03.2019)

Law of Partition, Sec.25 - duty of the trial Judge - identification of the corpus

"Notwithstanding the system of justice which prevails in our country is adversarial as opposed to inquisitorial, partition action is an exception. In a partition action the District Judge shall actively participate in the trial without playing the passive role of an umpire and safeguard the rights not only of the parties to the action but also of others who are not parties to the action, as all are bound by the Judgment, which confers title in rem."

Hewa Walgamage Siriyawathie v. Nupe Hewage Rosin Nona [CA/1287/2006/F decided on 01.08.2019]

Partition law: substitution – Karunawathie v. Piyasena is overruled – Stare decisis – Precedent – Per incuriam – A lower Court can decline to follow a decision given per incuriam by a superior Court where the defect clearly appears on the face of the judgment

See: SC/Appeal/160/2016, decided on 02.12.2022

Per Hon. Mahinda Samayawardhena, J.

The Supreme Court judgment in Karunawathie v. Piyasenais per incuriam, as section 48(1)(b) and 48(6) of the Partition Law No. 21 of 1977 and section 81(9) of the Partition Law as amended by the Partition (Amendment) Act No. 21 of 1997 expressly stipulate that failure to substitute the heirs or legal representatives of a party who dies pending determination of the action does not invalidate the proceedings in such action or judgment or decree entered thereon; anything done in the action shall be deemed to be valid and effective and in conformity with the provisions of the Partition Law and shall bind the legal heirs and representatives of such deceased party or person.

[Vide p. 24]

……….

The Supreme Court judgment in Karunawathie v. Piyasena is per incuriam and we would accordingly overrule that decision.

[Vide p. 27]

……

[a] lower Court can decline to follow a decision given per incuriam by a superior Court in instances where the defect clearly appears on the face of the judgment such as in Karunawathie v. Piyasena. The decision not to follow a previous binding authority on the basis of per incuriam shall not be a matter of interpretation or preference (as in the Court of Appeal judgment in Cassell & Co Ltd v. Broome [1971] 2 QB 354).

Law of Partition - Sec.32 of the Partition Law - subdivision of land, for development purposes - other laws - Urban Development Authority Law 41 of 1978 - extraordinary Gazette 392/9 - 1986, dated 10th March 1986 - Regulation 17(1) - minimum extent of land that could be divided for development purposes other than the high - rise buildings.

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Galabada Kandaamage Kumarapala v. Halpanadeniya Hewage Sepala alias Sepala Wijesundara (SC Appeal 93/2012 decided on 05.04.2019)

Partition action – Preliminary plan: section 16(1) of the Partition Law – Issuing a fresh commission: procedure

See: CA/DCF/1143/1998, decided on 31.08.2022

Per Hon. M.T. Mohammed Laffar, J.

"[I]t is abundantly clear that the plan and the report made by the surveyor, to whom the commission was issued under section 16 (1) of the partition Law, is the preliminary plan in a partition action. When the parties are not satisfied with the preliminary plan, the Court may direct the same commissioner to survey the larger or smaller land or to superimpose any title plan tendered. If the Court is of the opinion that the commissioner is not in a position to carry out the commission issued by Court, a fresh commission can be issued to the Surveyor General to prepare a plan. In such a situation, the plan and the report made by the Surveyor General can be accepted as the preliminary plan of the action. It is pertinent to be noted that, issuing a commission to another surveyor, other than the commissioner who made the preliminary plan or the Surveyor General is erroneous and contrary to the partition law." [Vide p. 11]

Law of Partition, Sec. 18 - surveyor commission - failure of the 1st surveyor to locate the land stated in the commission - to whom the 2nd commission issued?

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In P. Punyawardena Rodrigo v. Nevil Arunashantha Rodrigo and Others (CA/249/2000/F decided on 02.10.2018) the Court of Appeal observed as follows.

(1) If the surveyor to whom commission was first issued to prepare the Preliminary Plan could not locate the entire land by boundaries and extent as described in the commission/plaint, he should have reported it to Court and sought further instructions.

(2) According to section 18(3) of the Partition Law, if the Court or a party is not satisfied with the Preliminary Plan, steps can be taken to issue a commission to the Surveyor-General to prepare a fresh Plan; but there is no provision in the Partition Law to issue a commission to another surveyor to prepare an alternative Preliminary Plan.

Partition action – Corpus identification – Ancient traditional method of measurement of land – Rejection of the plaint

See: SC Appeal 161/2016, decided on 12.01.2023

Per Hon. Murdu N.B. Fernando, PC. J.,

[t]his Court sees no merit in the submission of the appellants regarding the variation of extent given in the schedule to the plaint and the extent depicted in the court commissioner’s plan. We are of the view, that the ancient and traditional sowing extent of grain and the modern measurement of actual extent of land cannot be compared per se since numerous other factors (i.e., the terrain, the fertility of the soil, size and quality of the grain and various modes and methods of cultivation) have a bearing on the sowing extent. Thus, ancient sowing extent cannot be considered in its strict form and a leverage ought to be given for variation when corelated to present-day measurements. Further, we are of the view, that even if the trial court came to a finding that extents vary, that factor alone will not vitiate rejection of the plaint and judgement be given in favour of the appellants, as there are many other items of evidence that should be considered in deciding on the identity of a land to be partitioned.

Partition Action – Corpus Identification– Ancient (Sinhala) & English land measures - Duty of a Surveyor – Ss 16, 18 & 19 of the Partition Law:

SC/Appeal/52/2018, SC Minutes of 10.06.2021.

per Hon. Mahinda Samayawardhena, J.

"A partition action cannot be filed to partition a portion of the land. The entire land should be brought into the action and the co-owners of the whole corpus should be made parties." [p. 9]

….

"It is a grave error to conclude in partition actions that the identification of the corpus is not established upon a mere superficial comparison of the schedule to the plaint, which is a reproduction of the schedules to old deeds, with the existing boundaries as depicted in the Preliminary Plan. Boundaries do not remain unchanged. They change over the years due to various factors, be it natural or man-made. Whether or not the Preliminary Plan represents the land described in the schedule to the plaint shall be determined upon a consideration of the totality of the evidence led in the case and not solely by such a comparison."

….

"The surveyor has not stated in the Report that the land surveyed by him is in his opinion substantially the same as the land sought to be partitioned as described in the schedule to the plaint. Section 18(1)(a)(i)-(viii) of the Partition Law sets out the several items which shall be included in the Report. In the Report relevant to this case, both this question and the answer are not there….However, failure to answer this question or answering it in the negative shall not be decisive. In other words, the Court cannot dismiss a partition action on the basis that the surveyor in his Report to the Preliminary Plan has failed to answer or answered in the negative the question “Whether or not the land surveyed by him is in his opinion substantially the same as the land sought to be partitioned as described in the schedule to the plaint”. Nor can the Court blindly accept that the Preliminary Plan depicts the entire land to be partitioned, if the surveyor in his Report answers the above question in the affirmative. Whether or not the land has been correctly identified shall be finally decided not by the surveyor but by the Court having taken into consideration the totality of the evidence adduced before it. The answer to the said question by the surveyor is undoubtedly an important item of evidence but it cannot decide the whole case."

[Emphasis added, Vide pp. 22-23 of the judgment]

Civil Law - Partition action - the judgment - Court must answer the points of contest (issues) - guidelines to be followed by the judges in all the Partition cases

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"In a Partition action, the procedure is laid down by the Partition Act as to how to file a partition action, what should be done first and how court can issue a commission to survey the land etc. but at the end of the case, writing of the judgment has to be done in compliance with Sec. 187 of the Civil Procedure Code. In a partition action, the judge has to decide what share of the land should be allotted to which party. "

Maddumaralalage Sucil & another v. Maddumaralalage Dona Marynona & others

Partition Action - Sec. 25(1) of the Partition Law - overall duty cast upon the District Judge in hearing a partition action is greater than in an ordinary civil action - District Judge must examine the title of each party to the land to be partitioned - no proper investigation of title - set aside the judgments of the District Court and the High Court - Plaintiff's action dismissed

SC APPEAL NO: SC/APPEAL/89/2011, Decided on: 12.05.2023

Per Samayawardhena, J.

[Vide pp : 09-10 ]

This section mandates a District Judge trying a partition action to examine the title of each party to the land to be partitioned. He must do this quite independently of what the parties may or may not say. This is the fundamental difference between the duty of a Judge trying a partition action and any other civil action. This is because of the binding nature of partition actions as actions in rem.

The duty of the Judge is not perfunctory. A District Judge trying a partition action cannot be found fault with for being overly cautious or jealous in investigating title to the land and looking beyond what has been presented before the Court by way of pleadings, evidence or otherwise, in order to be absolutely satisfied inter alia that all the necessary parties are before Court and there is no collusion among the parties. This paramount duty cast upon the District Judge in partition actions has been repeatedly stressed by the superior Courts from time immemorial.

Law of Prtition - Sec.70 - A dismissal of a partition action for want of prosecution - Civil Procedure Code - Sec.337 - how to compute the date - wether it applies to interlocutory decree or not

Background Facts

Partition judgment delivered in 1992: Plaintiff: 2/8 share1st Defendant: 1/8 share
2nd Defendant: 5/8 share
Appeal dismissed in 1995 by the Court of Appeal.
No action taken for 15 years thereafter.
In 2011–2012, the substituted plaintiff reactivated proceedings.
2B Defendant objected, sought dismissal under Section 70 of Partition Law and cited Section 337 CPC.

Legal Questions

Did lower courts fail to consider Section 70(2) of Partition Law properly?
Were their orders contrary to Section 337 CPC read with Section 79 of Partition Law?

Supreme Court’s Analysis

On Section 70 (Partition Law No. 21 of 1977)

Section 70(1): Partition actions do not abate due to inaction.
Court must attempt to compel prosecution before considering dismissal.
Dismissal is discretionary, not automatic.
Any party may continue the action, not just the original plaintiff.

“All parties in a partition action are plaintiffs for practical purposes.”

2B Defendant’s application was flawed as the substituted plaintiff had already resumed action.

On Section 337 (Civil Procedure Code)

Applies to execution of final decrees, not interlocutory ones.
Interlocutory Decree determines ownership shares and is non-executable.
Delay in entering it does not invalidate the decree.

“The decree relates back to the date of judgment.”

Section 337(1) does not apply here since no final decree execution was attempted.

See, A.M. Malani Chandralatha v. Ampe Mohottige Podihamine [SC/APPEAL/99/2016 decided on 14.05.2025]

Partition action - Plea of Prescription – Adverse possession – Prescription among close relations:

See: SC/Appeal/93/2017, SC Minutes of 18.06.2021.

Hon. Mahinda Samayawardhena, J.

The commencement of prescriptive possession can coincide with the commencement of possession itself if the possessor enters the land in a capacity inconsistent with the owner’s title. If not, the possessor shall signify the change in the character of possession by an overt act or a series of acts indicative of a challenge to the owner’s title.

The prescriptive period begins to run only from that point and not from the date of entry to the land. (Sirajudeen v. Abbas [1994] 2 Sri LR 365, Reginald Fernando v. Pabilinahamy [2005] 1 Sri LR 31 at 37, Chelliah Vs. Wijenathan (1951) 54 NLR 337 at 342, Mitrapala v. Tikonis Singho [2005] 1 Sri LR 206 at 211-212)

Where the relationship between the two parties is very close such as in the instant case, the proof of change in the character of possession from innocuous to adverse is greater than in a case where the two parties are total outsiders. (De Silva v. Commissioner of Inland Revenue (1978) 80 NLR 292, Podihamy v. Elaris [1988] 2 Sri LR 129)

In the instant case, the Appellants have failed to prove that they commenced adverse possession from the outset or that they changed their character of possession subsequently. The evidence of the 7th Defendant-Appellant is that the Appellants continued their possession without any objection from the Plaintiff or the other co-owners. This is not sufficient to claim prescriptive tittle.

In the facts and circumstances of the case, the learned District Judge cannot be found fault with for rejecting the prescriptive claim of the Appellants.

[Vide page 14].

Partition Law - registration of lispendens

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It was held in R. Nelson Seneviratne v. T.A.S.Sampath Sugathadasa and others (C.A. No. 880/97(F) decided on 03.02.2016) that, the partition under the Partition Act No. 16 of 1951 and under the present Partition Law No. 21 of 1977, in both statutes, registration of lispendens under Section 13 is compulsory.

Law of Partition - duty of the Surveyor - Sec.18(1)(a)(iii) - identifying the corpus - boundaries

According to the provisions of Section 18(1)(a)(iii) of the Partition Law, the commissioner has to state inter-alia whether or not the land surveyed by him is, in his opinion, substantially the same as the land sought to be partitioned as described in the Plaint.

When a Surveyor is on notice of any person in possession of land belonging to the State and made boundaries to the same, it is his bounden duty to physically inspect such land and the boundaries, to be satisfied that the land is sufficiently and clearly defined, marked to indicate the land excluding State land and to provide a memorandum to that effect.

When old boundaries cannot be conveniently restored and new boundaries are to be fixed by the Judge, the onus of proof is on the Plaintiff to lead such evidence of its metes and bounds at the trial, as it will enable the court to determine the same in its judgment. It is the view of this Court that the evidence led before the trial court, was totally insufficient to place boundaries differently from that are already in existence.

The identification of the corpus is the nucleus of a partition case from which it derives its existence. As such, the Surveyor’s return is fundamental in identifying whether the land surveyed is substantially the same land described in the Plaint which is relied upon by the Plaintiff. Any inconclusiveness in identifying the boundaries (as is the case here), would negate the required proof of identifying the corpus on a balance of probability.

See, S.A.Dona Nandawathi v. S.A. Dona Gunawathi (deceased) [SC Appeal No: 132/2014 decided on 18.10.2024]

Law of Partition - allotment of shares - Sec. 33 of the Partition Law - improvement- bona fide improver

"Where improvements have been effected, that portion of the land on which the improvements stand should, as a general rule, be allotted, on a partition of the land, to the co-owner who has made the improvements. Nevertheless, in terms of section 33 of the Partition Law, that shall be done “so far as practicable” and not as an inflexible rule. If such inclusion of all the improvements renders a fair and equitable division impossible, the Court can deviate from the general rule. A bona fide improver, in such circumstances, is not without a remedy. He can claim compensation as provided in the Partition Law."

Sanadhirannahalage Gunatillake v. Chandratillake Appuhamilage Karunaratne and Others [CA/557/1999/F decided on 17.12.2019]

Duty of the trial judge in a partition action to investigate title of the parties is more than the parties.

S. EVA WANASUNDERA PCJ. in GangodaMudiyanselageWijewathi Podimenike Vs Pathirennehelage Leelawathie, SC APPEAL No. 178/2013, Decided on 14. 12. 2016

“It is trite law that the duty imposed on the judge in a partition case is a sacred one.The burden of seeking and getting evidence before court, in the course of investigation of title to the land sought to be partitioned by parties before Court, prior to deciding what share should go to which party is more the duty of the judge than the contesting parties. The authorities proclaim that it is the duty of the trial judge in a partition action to investigate title of the parties before he decides what share should be allocated to which party of the case before him.”

Further Reference:

Cynthia De Alwis Vs. Marjorie De Alwis and two others, 1997, 3 SLR 113

Faleel Vs. Argeen and Others 2004 , 1 SLR 48

Sopinona Vs Cornelis and Others 2010 BLR 109

Law of Partition - Scheme inquiry

For completeness, let me also state that a party to a partition action (not a new party) can file a statement of objection to the proposed scheme of partition before the scheme inquiry (sections 35 and 36 of the Partition Law). The Court cannot deny filing objections on the basis that he has defaulted in filing a statement of claim and participating in the trial. In Anthony Appu v. Margret Fernando and Others [1999] 3 Sri LR 85, Weerasuriya J. stated that “The Partition Law makes no prohibition against a party who had failed to participate at the trial in terms of section 25(2) to file objections to the proposed scheme of partition. In the absence of a specific prohibition it is not possible to presume any such prohibition.”

However, in the guise of filing objections to the proposed scheme of partition, such a party cannot convert the scheme inquiry into another trial to decide issues on the pedigree. As Soertsz A.C.J. stated in Appuhamy v. Weeratunge (1945) 46 NLR 461 at 462, “there must be an end to a case, particularly to a partition case which is generally of a protracted nature and which prevents parties to it from dealing with the land as freely as they would wish to in the interval.” In Hamidu v. Gunasekera (1922) 24 NLR 143 at 145 it was held that “A person entitled merely to an interest in a building on a land which has become the subject of a partition action can only obtain compensation for the interest in the building, and cannot get any share of the land in the partition.” In the instant action, although the 9th defendant does not have soil rights, her claims for improvements need to be safeguarded.

Section 35 of the Partition Law states: “After the surveyor makes a return to the commission, the court shall call the case in open court and shall fix a date for the consideration of the scheme of partition proposed by the surveyor. The date so fixed shall be a date not earlier than thirty days after the receipt of such return by the court.” The thirty-day period shall be counted not from the date on which the return is received by the Registry but from the date on which it is received in open Court on the returnable date fixed for that purpose by Court (Wickremaratne v. Samarawickrema [1995] 2 Sri LR 212). According to section 36(1)(a) “On the date fixed under section 35, or on any later date which the Court may fix for the purpose, the Court may, after summary inquiry confirm with or without modification the scheme of partition proposed by the surveyor and enter final decree of partition accordingly.”

See, SC/APPEAL/71 - 72/2023 decided on 09.10.2024

Law of Partition - “omne quod inaedificator solo, solo cedit”

"I need hardly emphasize that the maxim “omne quod inaedificator solo, solo cedit” is now trite law. Every thing that is built on land or on another immovable property accedes to that land or
immovable property and it becomes the property of the owner of the land as immovable. .... However, a person who builds on the land of another may have the right to compensation and the
right to retention until compensation is paid. These rights depend on many factors including the status of the improver such as a bona fide occupier etc;.

In relation to the rights of a co-owner who effects improvements with the knowledge that the property is owned in common and that he is entitled, at partition only to a share of the land, proportionate to his interest, it is observed that, “the equitable rights of the improver have to be restricted appropriately, for the purpose of protection of the other co-owners’ interests” - “The Law of Property in Sri Lanka” by G.L.Peiris, Vol I, page 46 (Third Re-print -2009)."

Rajakannagedera Senarath Wijesinghe v. Rajakannagedera Lalith Chandana Thusitha Kumara and Others [SC Appeal 117/2017 decided on 07.09.2022]

Law of Partition - settlement

"After the settlement was recorded, parties can not resile from that settlement which they agreed."

Jalathge Sirisena Jayalath v. Diddenipatha Matarage Sunil Shantha [C.A DC 1317/1999 delivered on 25.11.2020]

Law of Partition – final decree – conclusive effect of the partition decree – exceptions for that – execution – Civil Procedure Code, Sec.325(4) – revision application to the High Court of Civil Appeal – by a unknown party to a original Partition suit – servitutal rights and prescriptive rights are required to be established through evidence – the right of way by necessity and by prescription

SC Appeal No. 26/2016 decided on 10. 07. 2020

Law of property - Partition Law - can the trust create on that? Sec.83 of the Trust Ordinance - constructive trust - interpretation of Statues

By way of Deed of Transfer No. 10950, the Plaintiff-Appellant Respondent (Plaintiff) transferred some of her undivided rights to the land described in the schedule to the Deed to her brother, the Defendant-Respondent-Appellant (Defendant). The Plaintiff states that although this Deed is ex facie an outright transfer, it was in fact security for a loan obtained by her from the Defendant, and there was an oral agreement between them that the Defendant brother would re-transfer the property once she repaid the loan with interest. The Plaintiff’s position is that she never intended to pass the beneficial interest in the property to the Defendant thereby resulting in a constructive trust being created in her favour.

Held -

(1) Similar to the Partition Act, the Partition Law spares constructive trusts despite a partition decree being final and conclusive.

(2) Finding of the District Court is not correct and goes against the ratio decidendi of Marikar’s case. Had the learned District Judge read the Judgment in Herat v. Amunugama (1955) 56 NLR 529, which he cites in his Judgment, he would have realised his mistake.

(3) If two interpretations of a statute are possible and one leads to absurdity and the other is in harmony with common sense and justice, the Court has the option of selecting the latter. But if the language of a statute is plain, the Court cannot as a general rule give a different interpretation on the ground of absurdity. The intention of the legislature is clear when the legislature in express terms preserved constructive trusts despite finality of partition decrees in line with the dicta in Marikar’s case.

(4) The argument of learned President’s Council for the Defendant is that the partition decree can be challenged before the District Court only on the grounds set out in section 48(4) of the Partition Law and nowhere in that section is it expressly stated that a partition decree can be challenged by a separate action filed on the ground of a constructive trust. This position is untenable because the challenge by the beneficiary is not against the partition decree but against the trustee.

A.A.D Ananda Algama v. A.A.D Wasantha Lankanayake [SC APPEAL NO: SC/APPEAL/57/2019 decided on 10.06.2021]

Law of Partition - allocation of shares - claim based on prescription - how to prove

"Nevertheless, it is the bounden duty of the trial judge in a partition action to fully investigate the title to the corpus. The law does not permit him to allocate shares to a claimant merely because the other parties who are entitled to undivided shares do not make a claim in the partition action."

Keppetiwalana Ralalage Rohini Lanka& others v. MA Dharmawathie (deceased) [S.C. Appeal No. 151/2015 decided on 10.08.2023]

Law of Partition - Interlocutory Decree - its value - Sec. 26 & 48 of the Partition Law discussed

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Section 26 as well as Section 48 of the Partition Law confers finality to Interlocutory Decrees entered in a partition action. Accordingly, such a decree becomes good and sufficient evidence of the title of any person as to any right, share or interest awarded to him and it will be considered as final and conclusive for all purposes against all persons whomsoever, whatever right, title or interest they have, or claim to have, in the land to which such a Decree relates. However, such finality would operate subject to the matters referred to in Section 48 of the Partition Law particularly to the matters in Sub-Section 4 thereof. Therefore, it is clear that an Interlocutory Decree entered in a partition action binds the whole world subject to the matters referred to in Section 48 of the Partition Law.

in Weerappuli Radage Magilin Jinadasa & Others v. Weerappuli Radage Jemis (C. A. Appeal No. 743/1996 (F) decided on 05.03.2019)

Law of Partition - non prosecution of the action - whether the provision of CPC apply or Partition Law prevail ? Sec. 70 of the Partition Law discussed.

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"Also, I observe that the proviso to Section 70 of the Partition Law states that in a case where a Plaintiff fails or neglects to prosecute a partition action, the court may, by its order, permit any Defendant to prosecute that action and may substitute him as a Plaintiff for the purpose and may make such order as to costs as the court may deem fit. It is clear that the expression, "any defendant" in the above Section 70(1) means, any defendant irrespective of whether he has soil rights or not can prosecute the action thereunder; and that Section 70 permits each single defendant, without distinction, to step in to the shoes of the plaintiff, in case the plaintiff omits to do in the action that which he ought to do or fails to prosecute the same with diligence. However, a defendant's act (right) to step in to the shoes of the plaintiff is a voluntary one."

in Damayanthi Ekanayaka v. Neelanduwage Amarawathie and Others (CA/1392/99 (F) decided on 21.11.2018)

An application for restitutio in integrum - Partition Act - adding a party

Addition of a new party in a Partition action cannot be done by way of an application for restitutio in integrum. It has to be upon an application for revision. This is an application for restitutio in integrum and not revision.

H.A. Udaya Kumar v. Modera Acharige Nishanthi Inoka Dharmadasa and Others [CA/375/2012/RI decided on 23.09.2019]

Law of Partition - Sec. 84 of the CPC - applicability

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"A partition action is brought to put an end to the inconvenience of common possession. Apart from the special procedure prescribed for such actions, both in the Ordinance of 1863 and the Partition Act of 1951 (Chapter 69), such an action is very unlike any other action based on a " cause of action " as defined in the Civil Procedure Code. In the present action, like in all other actions for partition, whether filed under the Ordinance or the Act, the plaintiff avers in para. 14 of the plaint that common possession of the land is inconvenient and impracticable. That is the basis on which he comes to Court. ...

I have examined the question so far on the basis that an order under section 84 of the Civil Procedure Code is an appropriate order in a partition action.

But I must say, however, that I am very strongly of the view that the provisions of the Civil Procedure Code relating to the consequence and cure of defaults in appearing (Chapter 12) have no application at all to a partition action instituted under the Partition Act.

One consequence of the laws of inheritance obtaining in the Island is the common ownership of small parcels of land. This in turn leads to many disputes, often resulting in violence. The Partition Act was designed to enable a co-owner to put an end to this evil and obtain a Decree in Bern. At the same time the legislature has paid heed to the fact that a partition action, once instituted, must be prosecuted with reasonable diligence, not only because of the prohibition against alienation pending such actions, but also because the business of a court should not be hindered by a number of semi-animate actions pending on its roll. The Act, therefore, provides for the dismissal of an action for many defaults, for example, the failure to deposit survey fees (sections 10 and 29), the failure to comply with the requirements relating to declarations, summonses, notices, etc., at the commencement of the action (section 12), the failure to provide security (section 63), default in payment of costs (section 66) or non-prosecution of the action (section 71). But in every one of these instances, when the action is dismissed without an adjudication, section 76 provides that such a dismissal should not operate as a bar to the institution of another action.

Absence of a plaintiff without excuse on the trial date surely amounts to a failure to " diligently prosecute the action ". One has to bear in mind that the procedure prescribed under the Act before a case is ready for trial is elaborate and expensive, and also that in a partition action every defendant is in the position of a plaintiff.

Section 71, therefore, provides that:

"No partition action shall abate by reason of the non-prosecution thereof, but, if a partition action is not prosecuted with reasonable diligence after the Court has endeavoured to compel the parties to bring the action to a termination, the Court may dismiss the action :

Provided, however, that in a case where a plaintiff fails or neglects to prosecute a partition action the Court may, by order, permit any defendant to prosecute that action and may substitute him as plaintiff for the purpose and may make such order as to costs as the Court may deem fit."

In my view, the above section provides for the procedure which is applicable when a plaintiff in a partition action is absent, and section 79 of the Partition Act, relied on by the appellant, which provides for a casus omissus has no application.

Even a cursory examination of sections 84 and 85 of the Civil Procedure Code would reveal their inapplicability in a partition action. Section 84, for instance, provides for the dismissal of the plaintiff's action if he fails to appear on a day fixed for the appearance and answer of a defendant. It is very common to find a large number of defendants in a partition case. They are never served with summons at one and the same time, and a case had to be called on several dates before this is done. A plaintiff would be in peril on every date that a defendant appears on summons.

Section 85 provides for the exparte hearing of a case and the passing of a Decree Nisi if the defendant fails to appear on the day fixed for his appearance and answer. Such a procedure, in addition to being obviously impracticable in a partition case, would also be contrary to the provisions of section 25 of the Partition Act which require the Court to examine the title of each party before entering an Interlocutory Decree. Even as far back as 1895, in Wickramasekera v. Fernando [1 (1895) Matara Cases 19.], it was shown that a Decree Nisi was altogether irregular in a partition action."

Per Justice Sirimane in Dingiri Amma v. Appuhamy - (1969) 72 NLR 347

Partition Law - duty of the surveyor

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In Sopaya Vs. Magilin 1989 (2) SLR 105 ..

On receipt of the surveyor's return which disclosed that a substantially larger land was surveyed, the District Judge should have decided on one of the following courses after hearing the parties.

(i) To reissue the Commission with instructions to survey the land as described in the plaint. The surveyor cold have been examined as provided in section 18(2) of the Partition Law to consider feasibility of this course of action.

The surveyor under section 18(1)(a)(iii) of the Partition Law must in his report state whether or not the land surveyed by him to substantially the same as the land sought to be partitioned as described in the schedule to the plaint. Considering the finality and conclusiveness that attach in terms of section 48(1) of the Partition Law to the decree in a partition action, the Court should insist upon due compliance with this requirement of the surveyor.

In W. Uberis Vs. M.W. Jayawardena 62 NLR 217 ...

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

In Bininda V s. Sediris Singho 64 NLR 208 ...

When preparing a preliminary plan in a partition action, it is irregular, for a surveyor, in the absence of an additional commission issued to him under section 23( 1) of the Partition Act, to survey and include in the corpus any land other than that which is referred to in the plaint and which his commission authorizes him to survey. The Surveyor will not be entitled to receive fees in respect of that part of the survey which he makes in excess.

In C.A 184/1997 (F) decided on 2013.02.07

When a larger land surface in the preliminary plan, court has to consider Section 19(2)(b) of the Partition Law. Non observance of essential steps would render the entire proceedings void and the case has to commence afresh from the beginning. Even with hardships that has to be undergone by parties, the due procedure need to be adopted.

Land law - deed of transfer - Sec.66 of the Partition Law - contingent interest

If a contingent interest is alienated pending partition without any conditions, the lot in severalty allotted to the grantor will automatically pass and vest in the grantee upon the entering of the Final Decree of Partition. However, in practice, another Deed is often executed for better manifestation of the intention of the grantor, although it is not strictly necessary.

See, Wilson Ekanayake v. Negiri Kande Piyaratne & others [ SC/APPEAL/31/2020 decided on 22.02.2024]

Law of Partition - co ownership - prescription

"In a co-owned property, every co-owner does not need to enjoy the property to have the co-ownership intact. The possession of one co-owner is in law the possession of other co-owners. Nothing short of ouster or something equivalent to ouster by an overt act as opposed to a covert act is absolutely necessary to make possession adverse and end co-ownership."

Kankathanthri Athula and others v. Korale Kankanamage Leelawathi [CA/1097/2000/F decided on 07.08.2019]

Law of Partition, Sec.48 - interlocutory decree - a party who has not been served with summons - remedies

"Remedy for a party who has not been served with summons and in consequence thereof that party is prejudiced by the interlocutory decree, is provided in section 48(4) a (1) of the Partition Act. Such party can apply for special leave to establish the right, title or interest of such party, notwithstanding the interlocutory decree already entered within the prescribed period. Further, in terms of section 49 of the Act, any person not being a party to a partition action, whose rights have been extinguished, may by a separate action recover damages from any party to the action by whose act or omission such damage may have accrued."

Rannulu Upali Ranjith De Soysa v. Dewa Binet Chandra Pathmini De Zoysa (C.A. Appeal No. 362/2000 (F) decided on 20.06.2019)

Law of Partition - substitution - Sec.81 memorandum

Prior to the amendment made to the Partition Law by Act No. 17 of 1997, Section 81 of the Act provided that when a party died after the institution of the action that a Court may on an ex parte application of any other party, appoint a person to represent the estate of deceased for the purpose of the action. It only required ‘a person’ to be appointed as the legal representative but not all the heirs or persons who may derive title through the deceased person. Such appointment was to be made only if the court was satisfied that such appointment was necessary or desirable for the purpose of enabling the Court to proceed with the action with a view to its speedy determination. Thus, the law before the amendment made in 1997 expected only one person to be appointed to represent the estate of the deceased party. The amendment brought in by the Act No. 17 of 1997 made provisions for a party (the plaintiff, defendants, intervenient or added parties etc.) to file memorandum nominating, in accordance with Section 81, a person to be his legal representative for the purpose of the action, in the event that party dies pending the final determination of the action – vide Sections 4, 19 and 69 as amended by the said amending Act. The new Section 81, which repealed the previous Section 81 which is quoted below, provided that every party to a partition action shall file a memorandum at least nominating one person, and not more than three persons, in order of preference, to be his legal representative for the purpose of the action in the event of his death pending the final determination of the action.

81. ........

The above Section 81 brought in by the amending Act also shows that, at a given time the law requires only one legal representative to represent the estate of the deceased party. The present caption to this Court in contrast to the said requirement shows that several persons have been appointed as legal representatives to some parties who are dead on the request of the Petitioners. As said before the collection of material, presenting substitution papers and supporting such substitutions consume considerable time.

(It must be noted that in a partition action, shares and rights are granted at the end to the original party, and the legal representative, if any, gets it not for him/her personally but on behalf of all the heirs of the deceased party or for the person/s entitled under the deceased party – see Don Alfred Weerasekara V Gonakoladeniya Gamage Pantis Appuhamy S.C. Appeal No. 172/2017 S C Minutes 30.01.2024. Thus, appointing one legal representative at a given time is more than sufficient).

The said new Section 81 shows that;

• Failure to file a memorandum nominating a legal representative does not invalidate any judgement, sale, order or thing done in the action, and the legal heirs and representatives of the deceased person are bound by them. Further such failure is not a ground to invalidate the proceedings.

• If there was a failure to file a memorandum by the deceased party, any party may apply to court to appoint a legal representative for the deceased party, but with the appointment, such legal representative shall be bound by the proceedings had up to the time of such appointment.

• It is only an heir of the deceased nominator who could apply to remove a nominee or nominees named in the memorandum and move to appoint a new person.

• Any application for appointment made under Section 81 shall not be a ground for postponement and postponement of trial has to be made only on payment of costs and sometimes only on the prepayment of payment of costs.

Even though, it is not mentioned in the said Section 81 of the Partition Law that the nomination made through memorandum are relevant and applies to the appeals made after the District Court proceedings, Samayawardhena J. in Subasinghe Mudiyanselage Rosalin Bertha of Dummalasooriya v Maththumagala Kankanamlage Juwan Appu of Dummalasooriya SC App. No. 160/2016 SC Minutes 02.12.2022 expressed the view that these provisions are equally applicable in proceedings before the Court of Appeal or the Supreme Court. I also agree that these provisions apply to the proceedings during an appeal for the reasons mentioned below. However, I prefer to limit their applications to proceeding in appeal over the decisions in the original court since revisions are distinct applications that originates not in the original court but in the Court that has revisionary powers where exceptional circumstances to make that application exists and miscarriage of justice has been occurred. Since the revision application originates in a different court, in such applications the applicant may have to name all the parties who may be affected by the said applications. In contrast, a direct appeal originates in the original court by filing notice of appeal and petition of appeal and it is a continuation of the same proceeding. On the other hand, a leave to appeal application is not filed in the original court but when it is refused it confirms the decision in the first appeal and if granted it will be a continuation of the appeal made in the original court making it a continuation of the same appeal process. However, till the leave is granted, it is a new application filed before the relevant Appellate Court. Thus, in the matter in hand, this leave to appeal application is a new application before this this Court until leave is granted to continue with the original appeal made. In such a situation, Supreme Court rules relating to such applications also have to be considered.

per Justice E.A.G.R. Amarasekara in SC (HC) CALA / 187 / 2016 decided on 23.05.2025

Law of Partition, Sec. 35 & 36 discussed - notices to the parties by court - is it necessary under said section at the consideration of the final plan?

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"Hence, the argument that the learned District Judge should have issued notice to all parties for the scheme inquiry cannot be accepted. It was the obligation of the parties concerned to be present for the inquiry. As I mentioned before, Court will not relieve the parties of the consequences of their own folly or negligence in applications of restitutio in integrum."

Duwange Chandra Irangani Perera v. Duwage Neris Perera & Others [C.A. Case No. 275/2014 decided on 27.06.2019]

Law of Partition, Sec. 16 & 18 - first commission and second commission - it should send to the same Surveyor - its imperative

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It was held in .Hettige Don Tudor & others v. Hettige Dona Lalitha & others (SC (APPEAL) 134/16 decided on 19.02.2018) that according to the provisions of Section 16, the Commission issued to the very first Surveyor by Court is the only Commission that can be issued by Court to survey the land pointed out by the Plaintiff and at the instance of any other party out of the Respondents to the Partition Action, the Court may issue a Commission to the same Surveyor to survey any larger or smaller land than that pointed out by the Plaintiff. It is a well known fact that, in practice, the Court Commissioner, the Surveyor goes on to superimpose, on the land surveyed as pointed out by the Plaintiff, the plans brought before Court and make the Report to Court on the Commission.

Further, the Supreme Court held that the Partition Law has provided for an occasion what to do when the Plaintiff or any other party or Court is dissatisfied with the Preliminary Plan and Report done by the Commissioner Surveyor. The Court should issue a Commission on the Surveyor General. The Surveyor General will do the needful as provided for in the other sub sections of Section 18 (3) (b) to (g). It is clear that the Court cannot issue another Commission to any second Surveyor other than to the Surveyor General.

Law of Partition, Sec. 23 - filing the witness list - object of filing it - unlisted document - discretion of the Court when admitting it - points of contests and no issues in a Partition Action - duty of the Judge

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"According to section 23(1) of the Partition Law, No. 21 of 1977, as amended, the List of Documents shall be filed thirty days before the date of the trial........ The thirty-day period from the date of the trial, mentioned in this section was interpreted liberally as opposed to restrictively by the Supreme Court in Pushpa v. Leelawathie [2004] 3 Sri LR 162 to include not only the first date of trial but also any date to which the trial is postponed..................

There is no blanket prohibition for unlisted documents to be marked in evidence in partition trials. Such unlisted documents can, in terms of section 23(1) of the Partition Law, be marked with the leave of the Court. ..............

If a document is pleaded in the pleadings, such as the plaint, answer, replication, statement of claim, statement of objections, of which the opposing party had notice, the Court need not, as the Supreme Court in Walker & Sons Co Ltd v. Masood [2004] 3 Sri LR 195 stated, reject the document to be received in evidence on the ground that it is not listed. In such circumstances, the Court shall exercise discretion to allow it to be marked in evidence despite it being formally listed strictly in terms of the law.................

It is the duty of the presiding Judge, and not that of the parties or lawyers, to identify and record issues or points of contest on which the right decision of the case appears to the Court to depend."

in Herbert Ranjith Kulasooriya v. Chandra Kulasooriya and Others (CA/LA/399/2006 decided on 09.11.2018)

Law of Partition - duty of the trial Judge - identification of corpus - burden of proof

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In Case No. CA 1110/2000(F) decided on 15.01.2018, the Court Appeal observed that, according to section 25 of the Partition Act, at the trial the district judge is duty bound to examine the title of each party and he 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, in the land to which the action relates. According to section 26 among other orders district judge can demarcate and separate a portion of the land which represent the share of any particular party and also order that any share remain unallotted. This shows even if one party to the action proves his share it can be partitioned and the other portions can be left unallotted.

Held that the party who prosecute the partition action or the parties who want to partitioned the land has/have to prove the identity of the corpus.

Partition Law - Deeds executed after the Interlocutory Decree was entered - Sec.66 of the Law - a party to a partition action who had no soil rights to the land to be partitioned - no rights for compensation

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It was held in CALA/195/2002 decided on 25.05.2018, that a party to a partition action who had no soil rights to the land to be partitioned is not entitled to compensation for improvements made after the Interlocutory Decree. Further, the Court opined that Deeds executed after the partition action was duly registered as a lis pendens are void as being obnoxious to section 66 of the Partition Law, No. 21 of 1977, as amended.

Law of Partition - settlement between parties - its validity - per incuriam

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"In my view, even if there is no formal application, the Court of its own accord—ex mero motu—can put the record straight by invoking the inherent jurisdiction of the Court the moment it realizes that it has made a mistake. It is the duty of each and every Court to see that the parties shall not suffer by its own lapses—Actus curiae neminem gravabit. And also the party affected can in such circumstances apply to make restitution from what is due of right—ex debito justitiae."

in Mohamed Haneefa Ishaththu Nawma v. Mohamed Abdull Sawahira and Others (CA/784/1992/F delivered on 19.10.2018)

Law of Partition - identification of the land - duty of the Judge

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"Identification of the corpus is a must for a partition action. The Defendants' lawyer cited some decisions of the Superior Courts in this regard. However, the identification of the corpus depends on the facts of each case. A decision based on facts shall not be interfered with by an Appellate Court sitting in appeal unless it is shown that the conclusions are perverse or not supported by the evidence led."

in P.R.M.W. Wasala Lokubanda v. S.M. Lokumenika (C.A.No.983/2000(F) decided on 23.11.2018)

Partition Action - Corpus Identification – Changing of boundaries - Pedigree - Plaintiff’s duty – Ss. 16(2), 18(2), 19(2) of the Partition Law:

See: SC/Appeal/125/2016, SC Minutes dated 21-05-2021.

per Mahinda Samayawardhena, J.

….

The 3rd Defendant did not take any steps required by law to have a larger land than that sought to be partitioned by the Plaintiff made the subject matter of the action. If the 3rd Defendant wanted to enlarge the corpus, he ought to have taken steps to file an amended plaint inter alia naming new parties as Defendants, because according to the Preliminary Plan there are several claimants to the adjoining lands on all four boundaries.

All those alleged owners are third parties. At the trial, the 3rd Defendant raised the unspecific issue whether the land described in the schedule to the plaint is not depicted in the Preliminary Plan. He did so in an attempt to dismiss the action, as he is in possession of the entire land. [Vide pg. 11]

……

It is true that in a partition action the Plaintiff shall unfold the full pedigree. However this does not mean that he shall unfold a perfect pedigree starting from the very first Deed ever executed on the land. It is not possible to trace the very first Deed or the very first original owner of the land. We must stop tracing back at a convenient point. What constitutes this convenient point shall be decided on a case by case basis and not by way of a rigid formula. This point was lucidly explained in the Court of Appeal case of Magilin Perera v. Abraham Perera [1986] 2 Sri LR 208 at 210-211 by Gunawardene, J. with the agreement of G.P.S. De Silva, J. (later C.J.).

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The Plaintiff has proved his title on the balance of probabilities. [Vide pg. 17-18]

Law of Partition - amicable partition of a land between co owners but no cross deeds - a placement of signature on an amicable partition plan by a co-owner consenting to the partition - validity - Section 2 of the Fraud Ordinance and law on Prescription discussed

"Accordingly a placement of signature on an amicable partition plan by a co-owner consenting to the partition can be treated as an expression against his own rights as a co-owner and exclusive possession of each allottee of the allotment given to such allottee there onwards can be considered as adverse to the co-ownership rights that existed to the larger land and ten years of such possession will give prescriptive title to the allotted lot."

Case No: SC/L/A/ 293/2013 decided on 14.11.2019

Law of Partition - identification of the corpus - opinion of the Surveyor

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It was observed in Abraham Samarasinghe & another v. Epage Suwaris & others (SC Appeal No. 161/2015 decided on 09.02.2017) that, the statutory requirement in a partition case is discussed in the case of Sopiya Silva Vs. Magilin Silva 1989(2) SLR 105. (Judgment of S.N. Silva J. as he was then). It refers to Section 16(1) of the Partition Law. It implies that the

land Surveyed must confirm substantially, with the land as described in the plaint (in respect of which a lis pendens had been registered) as regards location, boundaries and the extent. It is for this reason that Section 18(1) (a) (iii) requires the Surveyor to express an opinion in his report.

Law of Partition - original Plaintiff moved to withdraw the action - Defendants right to prosecute - nature of an partition action discussed - Sec. 70

"In view of the submissions made by Dr. Cooray and Mr. de Silva, I am now called upon to decide the question whether it is open to the District Court to permit the original 8"' and 9"' Defendants to prosecute the partition action when the original Plaintiff moved to withdraw the action."

Held that the power of the District Court to dismiss a partition action upon the withdrawal shall he exercised only after every reasonable opportunity had been given to all the panics who asked for a partition and after using every reasonable endeavours to compel the parties to bring the action to a termination. However, where all the Defendants had ,asked for a dismissal of the action, the Court has no option hut to dismiss the action without permitting a Defendant to proceed to prosecute the action.

See, Hemawathie Gnanawickrema and Others v. Somawathie Wickremasinghe and Others [C.A REV 771/2000 decided on 02.09.2020]

Law of Partition - interlocutory decree - functus officio - powers of the District Court to amend its own decree - is it permissible? (Sec.189, 839 of the CPC discussed - Sec.48 of the Partition Act discussed)

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It was held in Case No. 600/99(F) decided on 14.12.2017, that the District Court is a statutory creation and its powers are essentially statutory. The District Court has no jurisdiction conferred by law to re-hear, review, alter or vary its judgments in the absence of express statutory provisions.

Law of Partition - duty of the Surveyor - Sec.18(1)(a)(iii) - identifying the corpus - boundaries

See, S.A.Dona Nandawathi v. S.A. Dona Gunawathi (deceased) [SC Appeal No: 132/2014 decided on 18.10.2024]

𝗽𝗮𝗿𝘁𝗶𝘁𝗶𝗼𝗻 - 𝗶𝗱𝗲𝗻𝘁𝗶𝗳𝗶𝗰𝗮𝘁𝗶𝗼𝗻 𝗼𝗳 𝘁𝗵𝗲 𝗰𝗼𝗿𝗽𝘂𝘀- 𝗡𝗼𝗻-𝗶𝗱𝗲𝗻𝘁𝗶𝗳𝗶𝗰𝗮𝘁𝗶𝗼𝗻 𝗼𝗳 𝘁𝗵𝗲 𝗰𝗼𝗿𝗽𝘂𝘀 - 𝗺𝗶𝘀𝗰𝗮𝗿𝗿𝗶𝗮𝗴𝗲 𝗼𝗳 𝗷𝘂𝘀𝘁𝗶𝗰𝗲

𝑺𝒆𝒆 | 𝘌𝘥𝘪𝘳𝘪𝘴𝘪𝘯𝘨𝘩𝘦 𝘈𝘳𝘢𝘤𝘩𝘤𝘩𝘪𝘨𝘦 𝘊𝘩𝘢𝘯𝘥𝘳𝘢𝘴𝘪𝘳𝘪 𝘌𝘥𝘪𝘳𝘪𝘴𝘪𝘯𝘨𝘩𝘦 𝘷. 𝘌𝘥𝘪𝘳𝘪𝘴𝘪𝘯𝘨𝘩𝘦𝘨𝘦 𝘋𝘢𝘺𝘢𝘸𝘢𝘵𝘩𝘪𝘦 𝘌𝘥𝘪𝘳𝘪𝘴𝘪𝘯𝘨𝘩𝘦 𝘢𝘯𝘥 𝘰𝘵𝘩𝘦𝘳𝘴 𝘚𝘊 𝘈𝘗𝘗𝘌𝘈𝘓 𝘕𝘖: 𝘚𝘊/𝘈𝘗𝘗𝘌𝘈𝘓/245/2014 𝘋𝘦𝘤𝘪𝘥𝘦𝘥 𝘰𝘯: 16.07.2024

Per. 𝗛𝗼𝗻.𝗦𝗮𝗺𝗮𝘆𝗮𝘄𝗮𝗿𝗱𝗵𝗲𝗻𝗮 𝗝.

" In a partition action, identification of corpus is a sine qua non before proceeding to the investigation of title. The rationale behind this principle is that title cannot be investigated in a vacuum or in the abstract without a specific subject matter. This principle is applicable not only to partition cases but also to any land case. In essence, if the corpus cannot be properly identified, the action must fail on that ground alone. "

" However, I must hasten to add that, after lengthy trials, dismissal of cases on non-identification of the corpus, without going into the merits and complexities of the case, should not be a convenient method of

disposing of cases. It must be well-considered serious decision. The Court cannot decide on the identification of the corpus by merely comparing the boundaries and extent of the land described in the schedule to the plaint, which details have been extracted from old deeds, with the land surveyed by the Court commissioner. Boundaries change over the years and so does the extent. The Court also cannot totally depend on conversion tables that equate traditional land measures to

English standard equivalents. The Court must decide on the question of identification of the corpus upon consideration of the totality of the evidence, not on isolated pieces of evidence."

" It is also important to note that if a party intends to contest a case on the identification of the corpus, it must be raised as an issue in the trial court, as the identification of the corpus is a pure question of fact that cannot be raised for the first time on appeal."

Law of Partition, Sec.25 - party who is not filed the statement of claim - duty of the judge

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It was held in Abdul Rasheed Nilam v. Mohamed Mushin Larif and others (C.A. Case No. 1213/2002 decided on 06.09.2017) that it is not repugnant to Section 25 of the Partition Law as amended to arrive at a settlement on the part of parties to a partition suit but the Court must take steps to safeguard the interests of others who will be, though not parties to the suit, bound by the decree. The obligation of the court under Section 25 of the Partition Law is not discharged unless the trial Judge indulges in a due evaluation of all points of contest quite independently of what parties may or may not do.

Law of Partition - identification of the corpus - investigation of the title - Restitutio In Integrum - who can permit to file such an action?

See, Punchinona Habakkalahewa and Othes v. Udugama Koralalage Dayasena and Others [CA/RI: O5/2018 decided on 25.02.2021]

Partition Action – Sec. 16 of the Partition Law – Preliminary Plan - Issuing a commission to another surveyor, other than the commissioner who made the preliminary plan or the Surveyor General:

See: CA/DCF/768/99, CA Minutes dated 26.07.2021.

per Hon. Laffar, J.

"In partition actions, there will be one preliminary plan that is made by the commissioner, and all the title plans relied upon by the parties are to be superimposed on the said preliminary plan. The court is entitled to issue a commission to the Surveyor General to prepare a plan to identify the corpus, on its own motion or upon the application of the parties to the action.

If the necessity arises to survey any larger or smaller land than that pointed out by the plaintiff, where a party claims that such survey is necessary for the adjudication of the action, such commission should be issued to the same commissioner who made the preliminary plan, and not to another Surveyor, as stated in section 16(2) of the Partition Law…" [Vide pg. 6]

...

"As such, it is abundantly clear that the plan and the report made by the surveyor, to whom the commission was issued under section 16(1) of the Partition Law, is the preliminary plan in a partition action. When the parties are not satisfied with the preliminary plan, the court may direct the same commissioner to survey the larger or smaller land, or to superimpose any title plan tendered. If the court is of the opinion that the commissioner is not in a position to carry out the commission issued by court, a fresh commission can be issued to the Surveyor General to prepare a plan. In such a situation, the plan and the report made by the Surveyor General can be accepted as a preliminary plan of the action. It is pertinent to be noted that, issuing a commission to another surveyor, other than the commissioner who made the preliminary plan or the Surveyor General is erroneous and contrary to the Partition Law." [Vide p. 10]

Per Incuriam - a court has inherent power to repair an injury caused to a party by its own mistake - law of Partition - nature of the interlocutory decree

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See,

Law of appeal - order or judgment - Interlocutory Decree - Section 48(4) of the Partition Law

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In C. A. No.: C.A. 1067/99 (F) decided on 07.09.2018, the Appellant's position is that ongoing appeal is a final appeal with regard to a dismissal of his purge default application filed under section 48 (4) (a) (iv); Whilst, in their written submissions that the Plaintiff-Respondents took up a Preliminary objection stating that the order dated 06.12.1999 is not a judgment and it is an order within the meaning of section 754(2) of the Civil Procedure Code which an appeal may be preferred with the leave of the Court of Appeal.

Law of Partition - co ownership - prescription -

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It was held in Rupasinghe Arachchige Jayawathie v. Wijesinghe Ratnayake Appuhamilage Kumudusiri (C. A. No. 586/99 (F) decided on 30.10.2018) that to prove a prescription against a co-owner there must be cogent evidence if he is a family member for adverse possession and for prescriptive title against to other co-owner.

Law of Partition - investigation of the title - duty of the trial Judge

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"It is trite law that, the burden of seeking and getting evidence before court, in the course of investigation of title to the land sought to be partitioned by parties before Court, prior to deciding what share should go to which party is more the duty of the judge than the contesting parties. The authorities proclaim that it is the duty of the trial judge in a partition action to investigate title of the parties before he decides what share should be allocated to which party of the case before him."

Mohamed Ismail Mohamed Najeeb v. Samoon Hadjiyar Mohamed Fawzy (C. A. 648/98 (F) decided on 01.10.2018)

Case No: SC/L/A/ 293/2013 decided on 14.11.2019

Law of Partition - 2nd commission

"According to section 18(3) of the Partition Law, if the Court or a party is not satisfied with the Preliminary Plan, steps can be taken to issue a commission to the Surveyor-General to prepare a fresh Plan; but there is no provision in the Partition Law to issue a commission to another surveyor to prepare an alternative Preliminary Plan. ..... According to section 18(3) of the Partition Law, if the Court or a party is not satisfied with the Preliminary Plan, steps can be taken to issue a commission to the Surveyor-General to prepare a fresh Plan; but there is no provision in the Partition Law to issue a commission to another surveyor to prepare an alternative Preliminary Plan."

Rankeththe Gedara Piyasena v. Kande Vidanelage Ruban Ananda Karunaratne [CA/DCF/720/2000 decided on 10.09.2020]

Partition Action – Sec. 16(1) of the Partition Law – Preliminary Plan – Issuing a commission to another surveyor, other than the commissioner who made the preliminary plan or the Surveyor General

I wish to stress the fact that the District Courts should desist from the practice of issuing an alternative commission to survey the corpus after the issuance of a commission to survey the corpus for the purpose of preparing the Preliminary plan. There are series of decisions by the appellate courts to the effect that, after the preliminary survey is carried out, any further commissions in terms of Section 16(2) of the Partition Law should be issued to the same surveyor who did the original Commission in terms of Section 16(1) of the said Law. There appears to be a misapprehension that in certain local jurisdictions that such a cursus curiae has been established. This belief is contrary to the settled law. This is certainly not the case, and I am of the view that it would be prudent on the part of the district judges to desist from this practice unless the District Judge takes a considered view that such a step is essential for the adjudication of the matter before the court. The exceptions to the rule in my view would be in an instance where, either the Surveyor who carried out the Preliminary Survey is dead or under the circumstances, his services can no longer be obtained.

This principle is articulated in the case of Hettige Don Tudor and others v. Hettige Don Ananda Chandrasiri SC Appeal 134 of 2016 [SC minutes of 19.02.2018] and also by Justice Salam in the case of Sumanasena v. Premaratne CA/1336 and 1337 CA minutes 06.03.2014. In recent times, Justice Laffar in the case of Premalal Vidana Arachchi v. T.A. Annie Nona Siriwardena and others, CA /DFC/768/99 CA minutes 26.07.2021, had made the same observation.

Per Hon. Aluwihare, P.C., J. in Sujatha Jayasinghe v. Walakada Gamage Munidasa and Others [SC/Appeal/46/2018, decided on 23.03.2023]. Vide pp. 9-10.

C. A. 381/2000(F) decided on 31/01/2020 - Hon Janak De Silva-Partition/Prescription Between Relatives-Possession which may be presumed to be adverse in the case of a stranger may not attract such a presumption, in the case of persons standing in certain social or legal relationships. The presumption represents the most likely inference that may be drawn in the context of the relationship of the parties. The Court will always attribute possession to a lawful title where that is possible. Where the possession may be either lawful or unlawful, it must be assumed, in the absence of evidence, that the possession is lawful.

Partition Law and the position of paraveni nilakaraya –"Full dominium” or “absolute ownership” in the property – Can paraveni nilakaraya be regarded as an owner for the purpose of partition law? – Concept of indivisibility of service.

A paraveni nilakaraya is the “owner” of paraveni panguwa and therefore falls within the meaning of the term “owner” imposed upon it by the context of the Partition Law. The Partition Law does not restrict institution of partition actions by persons who have full ownership in the land to be partitioned.

[Vide p. 39]

The Partition Law does not restrict institution of partition actions by persons who have full ownership in the land. The paraveni nilakaraya is an “owner” within the meaning of the term imposed upon it by the context of the Partition Law. A partition action can be instituted by a nilakaraya in respect of a land subject to rajakariya.

[Vide pp. 57-58]

See: M.K.S. Sirisena and Others v. M.K. Matheshamy and Others – SC/APPEAL/82/2010, decided on 13.11.2023.

Law of Prescription - Sec. 3 - adverse possession

"Considering this judgment, it is very clear that just because there was a building, the defendant appellant cannot claim rights. It is very clear that the Appellant or his predecessors had not participated in the partition action. Therefore, the Appellant is estopped from claiming prescription to the subject matter of the partition action. The judgement in case No: 25481/P of the District Court of Galle becomes a judgement in rem binding even the Appellant's predecessors.

It was the duty of the Appellant to establish his entrance to the subject matter of this case after the partition judgement. He should prove how the prescription started and uninterrupted enjoyment of the land against the others. Today in discussing prescription, we have to depend on the Prescription Ordinance of No: 22 of 1871 amended by Act No: 2 of 1889 Section 3 of the said Ordinance stipulates the ingredients of prescription.

Therefore, whenever a case comes before the Court on Prescription it is the duty of the judge to satisfy himself that all ingredients of prescription had been proved by the person claiming the prescription."

See, W. Gunadasa v. Asoka De Mel Co. Ltd [C.A DC 671/1995 decided on 01.04.2021]

Law of Partition, Section 36 - order or judgment

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"I hold that the confirmation of the final scheme of partition by the District Judge was a decision bringing the matter to a finality and it is not an Order as envisaged by Section 36A of the amended Partition Law."

in Kopiyawattage Indika Nalin Perera v. Richard Alfred Edissuriya & others (SC APPEAL 27/2011 decided on 03.08.2018)

Law of Partition - appointing a legal representative in appeal stage - applicable law

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In Shelton Wijesinghe & Others v. Suduhakuruge Magilin Nona (CA Appeal No.552/99 (F) decided on 15.02.2018), it was held that where a party to an appeal in a partition case dies after the lodging of an appeal, substitution is regulated by Section 760A of the Civil Procedure Code read with Rule 38 of the Supreme Court Rules 1990. The purpose or manner of substitution in the Appellate Court is different from the purpose and manner of substitution in the original court. In the appellate court unlike in the original court substitution is allowed for a limited purpose of prosecuting or continuing with the action as the rights of the parties are already determined.

Partition action – Section 25 of the Partition Law – Duty of the trial judge to investigate the title – Role plays by an Attorney-at-Law in a partition action:

See: SC/APPEAL/2/2019, SC Minutes of 15.10.2021.

per Hon. Mahinda Samayawardhena, J.

"It is true that under section 25(1) of the Partition Law, No. 21 of 1977, a special duty is cast upon the District Judge to investigate the title of each party to the land to be partitioned. But this does not mean that the District Judge shall go after the parties pleading with them for help in investigating their title to the land, more so when the parties are represented by attorneys."

xxx xxx

"A judgment entered in a partition action after following a long-drawn-out cumbersome procedure shall not be set aside with a stroke of the pen and retrial ordered causing enormous difficulties, under the popular banner “failure to investigate title”, unless there is good cause for doing so."

[Vide pp. 10-11]

Law of Partition - surveyor report - some relevant facts are omitted by the surveyor - what the party can do? section 18 of the Partition Law - avernment in the statement of claim is not sufficient

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It was held in Lalitha Edirisinghe v. S.M. Sumitra Premawathie

Weerasooriya (C.A. Case No. 982/2000 (F) decided on 04.06.2018) that the Partition Law offers an opportunity to an aggrieved party to summon the surveyor and pose questions to him as to why he omitted to mention relevant facts in his report if in fact the party had mentioned the relevant facts before the surveyor. A mere avernment in the statement of claim that the party denies the contents of the surveyor's report would not suffice.

Law of Partition - agreement between parties for allocation of shares - Trial Judge allocated the shares accordingly.

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It was held in W.A. Liyanage Themiyadasa v. W.A. Liyanage Gnanawathie Perera and Others (C.A. Case No.793/1997 (F) decided on 09.08.2018) that when an agreement is entered into, the court has to be satisfied only as to whether the agreement is between all the parties having interest in the land sought to be partitioned. In the event of such agreement, the respective shares or interests to given to each party is based upon the compromise that is reached and not on an examination of title. Agreed party can not question that later.

Civil law - Partition - deceased person and his estate

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It was held in Lasitha Manathunga v. Somawathie Jayasekera Senevirathne Sudusinghe (deceased) [C.A.Case NO:-73/99(F) decided on 27.11.2015] that, according to law relating to succession the title of the estate of a deceased person who died intestate passes at once to the heirs of the deceased person by the operation of law and such title vested in the heirs cannot be divested otherwise than by well-known modes of acquisition of title to the immovable properties.

Law of Partition - Sec. 16 & 73 - Failure on the partition of the trial judge to identify the corpus properly ignoring the preliminary survey by allowing the consensus reached among the parties to prevail over his statutory duty to identify the corpus is a fatal irregularity.

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H Vithanachchi Sumanasena v. G K Premaratna (CA 1336-1337/99 (F) decided on 06.03.2014)

Law of Partition, Sec.25 - duty of the judge - duty of the judge in delivering the judgment, Sec.187 of the Civil Procedure - documents read as evidence does not become evidence if its not followed proper procedure - Sec.154(3) of the Civil Procedure - a family member - adverse possession, Sec.3 of the Prescription Ordinance

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In Meththananda Ponnamperumage Dahanayake v. Nanayakkarawasam Kalupahana Liyanage Susantha Dias & others, following observations were made.

"Section 187 mandates that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Bare answers to issues or points of contest-whatever may be the name given to them-are insufficient unless all matters which arise for decision under each head are examined. Evidence germane to each issue must be reviewed or examined. Answering only points of contest raised by one party in a partition action and failing to consider the points of contest raised by other parties amounts to denial of justice to the latter parties for no fault of theirs.

The proviso to Article 138(1) of the Constitution states that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice. Therefore, even where there is a failure to comply with Section 187 of the Civil Procedure Code, if it is evident on a close examination of the totality of the evidence that the learned District Judge is correct in

pronouncing judgment in favour of the 2nd defendant, there is no prejudice to the substantial rights of the parties or occasioned a failure of justice and the judgment of the learned District Judge should not be disturbed.

Section 25(1) of the Partition Law requires the court to examine the title of each party and hear and receive evidence in support thereof. It has been consistently held that it is the duty of the Court to examine and investigate title in a partition action, because the judgement is a judgement in rem.

Where a party invokes the provisions of section 3 of the Prescription Ordinance in order to defeat the ownership of an adverse claimant to immovable property the burden of proof rests fairly and squarely on him to establish the starting point for his or her acquisition of prescriptive rights.

In our society family relationships are considered important and attracts a certain degree of trust. A family member is trusted more than an outsider. Courts appear to have taken this into consideration on the question of adverse possession in a claim of prescriptive title. A person who has entered into possession of land in one capacity is presumed to continue to possess it in the same capacity.

Mere general statements of witnesses that a party possessed the land in dispute for a number of years exceeding the prescriptive period are not evidence of the uninterrupted and adverse possession necessary to support a title by prescription. It is necessary that the witnesses should speak to specific facts and the question of possession has to be decided thereupon by Court.

The mere marking of a document during evidence does not necessarily mean it has been admitted as evidence. The explanation to Section 154(3) of the Civil Procedure Code dictates that whether a document is admitted or not it should be marked as soon as any witness makes a statement with regard to it and if not earlier marked on this account, it must, at least, be marked when the court decides upon admitting it. Strictly speaking the learned District Judge should have ruled on its acceptance in evidence by addressing his mind to the two questions set out in the explanation to Section 154(3) of the Civil Procedure Code. However, his failure to do so does not amount to it having been admitted in evidence."

Law of Partition - value of amicable partition plan - Sec.2 of the Prevention of Frauds Ordinance - cross deeds - intention of the co owners - secret intention - adverse possession - starting point of the prescription

Due to the provisions of the aforesaid section, any agreement to transfer or renounce once co-ownership rights in relation to an immovable property has to be in writing and executed before a notary. In the case at hand there was no notarially executed instrument renouncing or transferring the co-owned rights in the divided lots allocated to one of the co-owners by the other co-owners. In other words, there was no cross conveyances or a partition deed. If there was such an instrument or instruments, the co-ownership should have extinguished with the execution of such instrument. However, mere signatures of the co-owners placed on a plan does not falls within the instrument, writing or deed executed by a notary as contemplated in Section 2 of the Prevention of Fraud Ordinance. Thus, such placement of signatures itself is not sufficient to terminate co-ownership in relation to the divided portions depicted in the plan. Such placement of signature can only be construed as co-owner’s expression of consent and willingness to transfer or renounce their rights in relation to the lots allocated to the other co-owners but such plan itself cannot be construed as an instrument or writing renouncing or transferring such co-owned rights. ….

Accordingly a placement of signature on an amicable partition plan by a co-owner consenting to the partition can be treated as an expression against his own rights as a co-owner and exclusive possession of each allottee of the allotment given to such allottee there onwards can be considered as adverse to the co-ownership rights that existed to the larger land and ten years of such possession will give prescriptive title to the allotted lot. In other words, special circumstances of signing of the amicable partition plan and starting exclusive possession of the allotted lot can be considered as the overt act or its equivalent, the starting point of the adverse possession. On the other hand, as decided in the aforesaid Dona Cecilia V Cecilia Perera case even where the co-owners did not sign the partition plan other evidence may provide material to decide the starting point of adverse possession of allotted lots. As stated in Ponnambalam V Vaitialingam (1978-79) 2 Sri. L.R 166 the question whether a co-owner has prescribed to a particular divided lot as against the other co-owners is one of fact, to be determined by the circumstances of each case.

See, Susantha Nanayakkara v. Malika Vidanaarachchige Gunaseeli & others [S.C. APPEAL NO.123/13 decided on 14.11.2019]

Law of Partition - duty of the judge

"In this regard, I would like to stress that, this is a partition action and the investigation of title is the duty of the District Judge – vide Kularatne v Ariyasena (2001) B L R 6, Chandrasena V Piyasena (1999) 3 Sri L R 201. By this I do not mean that the judge should go on a voyage of discovery in investigating title. The judge may have to do it within the limits of pleadings, admissions, points of contests, evidence both oral and documentary – vide Thilagaratnam V Athpunathan (1996) 2 Sri L R 66. It must also be noted that in Golagoda V Mohideen 40 N L R 92 it was held that the court should not enter decree in a partition action unless it is perfectly satisfied that the persons in whose favour it makes the decree are entitled to the property."

See, SC APPEAL No. 46/2018 decided on 23.03.2023

Law of Partition - pedigree and oral statements regarding a title - value of such evidence - Sec. 32(5), (6) & 50(2) discussed

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In C. A. Appeal No. 648/96 (F) decided on 21.02.2019 the Court of Appeal observed as follows.

"Therefore, the above findings seem to me that, pedigree and oral statements regarding a title are would be acceptable-evidence in a partition action."

Law of Partition - devolution of shares - duty of the Judge - settlement of the partition suit - proxy and its effect

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"It is the duty of the learned District Judge to calculate the shares according to the evidence led before him. He cannot delegate that duty, which is judicial, to a party or his Attorney.

If an Attorney tenders a List of Shares to assist Court, he shall do so with notice to the other parties and then the learned District Judge can consider it when calculating shares on his own. Such a List of Shares shall be a part of the Judgement and not something which shall be prepared after the pronouncement of the Judgment."

in Jayasuriya Arachchilage v. Gurusinghe Arachchige and Others ( CA/1211/2000/F decided on 23.10.2018)

Civil Law - settlement - how to deviate from that - duty of the Court - Partition law - final decree

"The Court cannot simply say that there is a settlement and you cannot now go back, A Court is not an academy of law but a place whether administration of Justice takes place and when a mistake is shown by solid and good documentary evidence that someone who is not entitled to any share has got 1/16 share of the corpus depriving the lawful owners of their 1/16th share, the Court should inquire and ascertain that position as much prejudice has been caused to the Appellants by that settlement,"

Mohamed Haneefa Ishaththu Nawma and Others v. Mohamed Abdulla Sawahi and Others [C.A DC 784/1992 (F) decided on 06.07.2019]

Revision - law of Partition - exceptional circumstances

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It was observed in Sarath Godagampala & others v. W.K.Peter Fernando & others (SC.Appeal No.98/2007 decided on 10.06.2016) that, "disregarding a statutory provision alone would amount to have established exceptional circumstances that are necessary to invoke revisionary jurisdiction. Revisionary jurisdiction is a discretionary remedy in which the Court is empowered to exercise its discretion to meet the ends of justice. The Courts are empowered to exercise its discretionary powers to correct errors even though the party who is affected by those errors has failed to exercise the right of appeal given to him/her by the Statute."

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