Mahen Gopallawa J.

The Petitioner has invoked the jurisdiction of this Court in terms of Article 140 of the Constitution and sought a writ of Mandamus directing the 2nd Respondent to take necessary steps for the demolition of the wall standing on the western boundary of the Petitioner’s land, which is described in the schedule to the petition and depicted in Plan No. 4203 dated 27.11.2004 made by H. R. Samarasinghe, Licensed Surveyor and annexed to the petition marked P2.

The 1^st Respondent is the party who is alleged to have constructed wall in issue, the 4^th Respondent is the Wattala Pradeshiya Sabha, within whose territorial limits the land is situate, and the 2^nd and 3^rd Respondents are respec Pradeshiya Sabha. The said Respondents have filed objections objecting to the relief sought by the Petitioner.

The Petitioner states that the land described in the said schedule to the petition and depicted as Lot 4 of the aforementioned Plan No. 4203 marked P2 is owned by him by virtue of a Deed of Gift No. 2049 dated 31.03.2017 attested by Christopher Jehan Croospulle, Notary Public executed in his favour, which is annexed to the petition marked P1. In the Plan marked P2, the western boundary is indicated as “Road & Land of Amarasena Wijetunge,” who has been cited as the 1st Respondent in this application. The Petitioner further states that he was personally aware that his predecessor in title, who was a daughter of his father’s brother, had access from the said land to “Thomas Garden Road” alias “Puwakwatta Patumaga” alias “Thombaiya Road” on such western boundary before she had “constructed an unauthorized wall along the western boundary in order to keep away thieves attempting to steal her poultry” (vide paragraph 3 of the petition). It is the position of the Petitioner that such the aforementioned road, which will hitherto be referred to as “Thomas Garden Road” purposes of convenience, is a public road maintained by the 4th Respondent.

The Petitioner further states that the unauthorized masonry wall built by his predecessors-in- title contained two halls to ensure the flow of water from the Petitioner’s land to Thomas Garden Road. He claims that the 1^st Respondent had constructed another unauthorized wall about 4-5 inches west of the aforementioned wall preventing the flow of rainwater from his land through the wall on to the road. The Petitioner has annexed to the petition, photographs of the unauthorized wall constructed by his predecessors-in-title and the unauthorized wall subsequently constructed by the 1^st Respondent marked P4 and P5 respec paragraph 6 of the petition). The Petitioner also states that he had demolished the unauthorized wall constructed by his predecessors-in-title subsequently, and, that, the present dispute between the parties relates to the existence of the wall constructed by the 1st Respondent.

The Petitioner’s legal entitlement to the aforementioned land and right of way over Thomas Garden Road is strenuously challenged by the 1^st Respondent in his objec of stating that the Deed of Gift marked P1 is illegal, bad in law and void (vide paragraphs 10- 16 of the 1st Respondent’s Statement of Objections dated 25.02.2022). The 1st Respondent further states that he derived his title to the land on the western boundary of the Petitioner’s land (Lot 4) from a Deed of Transfer No. 2159 dated 01.06.1987 attested by N. L. V. Perera, Notary Public and the said land is depicted as Lot 10 in Plan No. 2685 dated 07.07.1986 made by S. Wickramasinghe, Licensed Surveyor. The aforementioned Deed of Transfer and Plan have been annexed to his Statement of Objections marked R1 and R2. The 1st Respondent also states that he had gifted his land to his children and is neither the owner or possessor of the land at present (vide paragraph 6 of the Statement of Objections).

At the hearing of this application, the learned Counsel for the Petitioner specifically submitted to Court that scope of the instant application is confined to the