48.
| (1) Save as provided in subsection (5) of this section, the interlocutory decree entered under section 26 and the final decree of partition entered under section 36 shall, subject to the decision on any appeal which may be preferred therefrom, and in the case of an interlocutory decree, subject also to the provisions of subsection (4) of this section, be good and sufficient evidence of the title of any person as to any right, share or interest awarded therein to him and be final and conclusive for all purposes against all persons whomsoever, whatever rights title or interest they have, or claim to have to or in the land to which such decree relates and notwithstanding any omission or defect of procedure or in the proof of title adduced before the court or the fact that all persons concerned are not parties to the partition action; and the right, share or interest awarded by any such decree shall be free from all encumbrances whatsoever other than those specified in that decree. |
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| (2) Where in pursuance of the interlocutory decree a land or any lot thereof is sold, the certificate of sale entered in favour of the purchaser shall be conclusive evidence of the purchaser's title to the land or lot as at the date of the confirmation of sale, free from all encumbrances whatsoever except any servitude which is expressly specified in such interlocutory decree and a lease at will or for a period not exceeding one month. |
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| (3) The interlocutory decree and the final decree of partition entered in a partition action shall have the final and conclusive effect declared by subsection (1) of this section notwithstanding the provisions of section 44 of the Evidence Ordinance, and accordingly such provisions shall not apply to such decrees. |
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| (4)
| | (a) Whenever a party to a partition action-
| | | (i) has not been served with summons, or |
| (ii) being a minor or a person of unsound mind, has not been duly represented by a guardian ad litem, or |
| (iii) dies before judgment Is entered and no substitution of his heirs or legal representatives has been made or no person, has been appointed to represent the estate of the deceased party for the purpose of the action, or |
| (iv) being a party who has duly filed his statement of clime and registered has address, fails to appeal at the trial, |
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| | (b) The aforesaid application shall be by petition, supported by an affidavit verifying the facts, which shall conform to the provisions of paragraph (a) of subsection (1) of section 19 and shall specify to what extent and in what manner the applicant seeks to have the interlocutory decree amended, modified or set aside and the parties affected thereby. | | |
| | (c) If upon inquiry into such application, after prior notice to the parties to the action deriving any interest under the interlocutory decree, the court is satisfied-
| | | (i) that the party affected had no notice whatsoever of the said partition action prior to the date of the interlocutory decree or having duly filed his statement of claim and registered his address, failed to appear at the trial owing to accident, misfortune or other un-avoidable cause, and |
| (ii) that such party had a prima facie right, title or interest to or in the said land, and |
| (iii) that such right, title or interest has been extinguished or such party has been otherwise prejudicially affected, by the said inter-locutory decree, |
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| | (d) Where the court grants special leave as herein before provided the court shall forthwith settle in the form of issues the questions of fact and law arising from the pleadings and any further pleadings which are relevant to the claim set up in the petition only, and the court shall appoint a date for the trial and determination of the issues. | | |
| | (e) Where the court determines any matter in issue in favour of the applicant, the court shall in accordance with its findings amend or modify the inter- locutory decree to such extent and in such manner only as shall be necessary to give to the successful party and to no other party or person whomsoever, the right, title or interest to which such party is entitled, or in the event of the applicant being found entitled to the entirety of the said land forming the subject- matter of the interlocutory decree the court shall set aside the interlocutory decree and dismiss the action. | | |
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| (5) The interlocutory decree or the final decree of partition entered in a partition action shall not have the final and conclusive effect given to it by subsection (1) of this section as against a person who, not having been a party to the partition action, claims any such right, title or interest to or in the land or any portion of the land to which the decree relates as is not directly or remotely derived from the decree, if, but only if, he proves that the decree has been entered by a court without competent jurisdiction. |
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| (6) Where by an interlocutory or final decree a right, share or interest has been a warded to a party but such party was dead at the time, such decree shall be deemed to be a decree in favour of the representatives in interest of such deceased person at the date of such decree. |
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| (7) The provisions of this section shall apply to all interlocutory and fin decrees entered in partition actions instituted under the provisions of the Partition Act, No, 16 of 1951, and under the provisions relating to partition actions contained in the Administration of Justice Law, No. 44 of 1973, repealed by the Civil Courts Procedure (Special Provisions) Law, 1977. |
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Sri Lanka Consolidated Acts