IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Jayalath Pedigedara Rankira (deceased)

Plaintiff Jayalath Pedigedara Abesinghe Dodanwala, Muruthalawa.

Substituted Plaintiff CA No. 1258/9(F)

-Vs-

District Court Kandy Case No: 9602/P

1. Elamaldeniye Karunadhipathigedara Jothirathne (deceased)

IA. Elamaldeniye Karunadhipathigedara Amarasena.

2. Elamaldeniye Karunadhipathigedara Sewranga (deceased)

2A. Elamaldeniye Karunadhipathigedara Samarasena.

3. Jayalath Pedigedara Premapala (deceased)

3A. Jayalath Pedigedara Jayasuriya.

4. Herath Mudiyanselage gedara Ranmenika.

5. Y.B.M. Ekanayake.

6. N.M.Nandawathi All of Dodamwala, Muruthalawa.

Defendants And Jayalath Pedigedara Sarath Jayasuriya Dodanwala, Muruthalawa.

3^rd Substituted Defendant-Appellant -Vs-

Jayalath Pedigedara Abesinghe Dodanwala, Muruthalawa.

Substituted Plaintiff-Respondent IA. Elamaldeniye Karunadhipathigedara Amarasena.

2A.Elamaldeniye Karunadhipathigedara Samarasena.

4. Herath Mudiyanselage gedara Ramenika.

5. Y.B.M.Ekanayake. 6. N.M. Nandawathi.

Defendants-Respondents Before: C.P. Kirtisinghe - J.

R. Gurusinghe - J.

Counsel: A. S. M. Perera, PC with Prabodini Kumarawaduge for the substituted

3A Defendant Appellant.

Respondents are absent and unrepresented.

Argued on: 08.03.2023 Decided On: 06.06.2023 C. P. Kirtisinghe - J.

The 3^rd Substituted – Defendant – Appellant has preferred this appeal from the judgement of the learned District Judge of Kandy dated 02.12.1999. By the aforesaid judgment the learned District Judge had accepted the pedigree of the plaintiff subject to minor deviations and decided the pedigree dispute in favour of the Plaintiff.

The Plaintiff had instituted this partition action to partition the land called “Wesbadeniye Kumbura” alias “Wesbaange Kumbura” which is more fully described in the schedule to the amended plaint. The Commissioner in this case B.K. Cader LS had prepared and tendered to court the preliminary plan no. 489 which was marked ‘X’ at the trial. In that plan the corpus is depicted as LOTS 1,2 and 3. Surveyor Bernard P. Rupasinghe who had conducted an alternative survey had prepared the alternative plan No. 546A which was marked as ‘Y’ at the trial. In preparing this plan Surveyor Rupasinghe had superimposed the Commissioner’s plan on the boundaries he had surveyed.

The trial had proceeded on 43 issues. The Plaintiff had raised the issues No. 1 – 4 and 1A and 2A Defendants had raised the issues No. 5 – 16. Issues No. 17 – 24 had been raised on behalf of the 3^rd Defendant. The 4^th Defendant had raised the issues No. 25 – 29 and the 5^th Defendant had raised the issues No. 30 – 36.

The 6^th Defendant had raised the issues No. 37 – 43.

There had been several corpus disputes and pedigree disputes between the parties. The 6^th Defendant was asking for the exclusion of LOT No. 1 of the preliminary plan of the commissioner which is also shown as LOT 1 in the alternative plan marked ‘Y’ on the basis that it is a part of the adjoining land owned by her. According to the evidence of Survey Rupasinghe and the superimposition done by him, it is obvious that the aforesaid LOT 1 is a part of the adjoining land. The Substituted - Plaintiff had not denied this position in his evidence. Therefore, the learned District Judge has correctly excluded that portion from the corpus. The 4^th Defendant had asked for a prescriptive right to LOTS 2 and 3A in plan ‘Y’ on the basis of long and continued possession and the issue No. 28 had been raised on that basis. LOT 3A is a part of paddy field and LOT 2 is a high land. The Substituted – Plaintiff in his cross examination had admitted that the 4^th Defendant is in exclusive possession of the high land portion and she is residing there since 1950. The 4^th Defendant is also in possession of the portion of the paddy filed shown as LOT 3A in plan ‘Y’ from the time that he could remember. The 4^th Defendant is not a co-owner of the corpus and she is not entitled to any undivided rights according to the proved pedigree. The