CA quashes DC judgement in partition case

COLOMBO: The Court of Appeal has quashed the judgement and decrees issued by the District Court of Mt. Lavinia in a partition case on grounds of fraud and referred the case back for trial.

This followed an application for revision and Restitution -in-interregnum filed by a litigant of Mt.Lavinia against a resident of Colombo 5 in the partition matter .

The Bench comprised Justices Chandra Ekanayake and Sarath de Abrew.

The judgement delivered by Justice Sarath de Abrew inter alia stated:

It is quite apparent that learned trial judge had based his findings on the admissions made in evidence of the plaintiff respondent. There had been no attempt to examine whether the corpus mentioned in the schedule to the plaint tallies with the extent and boundaries of the land mentioned in deed No. 5880 and 5991 marked in evidence.

There had been no attempt to ascertain whether the above deeds are duly registered in the proper Folio No. 1280/142 at the land registry or whether there are other deeds duly registered in the proper folio pertaining to the same land.

In other words the learned trial judge had merely acted as a rubber stamp without discharging his burden under the Partition Law in properly investigating title. In such situations, it may be gainsaid, the conduct of the learned trial judge unknowingly contributes to the perpetrating of a fraud by parties acting in collusion.

Therefore, acting in revision I make order setting aside the judgment and other proceedings, interlocutory Decree and the Final Decree in District Court Mt. Lavinia case No. 19/93 Partition as prayed for in sub-paragraph (1) of the prayer to the petition.

I make further order directing the learned District Judge of Mount Lavinia to commence partition proceedings de novo on the plaint filed by the respondents while allowing the petitioners too to intervene in the action and file their statement of claims and thereafter fully investigate title and make an order and enter interlocutory decree and final decree according to law in compliance with the provisions of the Partition Law.

On a consideration of all the circumstances of this case I award costs in sum of Rs. 25,000 to the petitioners.

Dr. Jayatissa de Costa with Rohana Fernando appeared for the petitioner while Nihal Fernando appeared for the respondents.