1. ⁠The Plaintiffs- Respondents-Respondents (hereinafter referred to as the Plaintiffs – Respondents) have instituted this action against the Defendant – Appellant – Appellant (hereinafter referred to as Defendant - Appellant) and later substituted by his son (hereinafter referred to as Substituted Defendant- Appellant) in the District Court of Gampaha by plaint dated 10.07.1996 seeking a declaration of title in the name of the Plaintiffs – Respondents to the property described in the 3^rd schedule to the Plaint, the ejectment of the Defendant - Appellant from the said land, to recover the undisturbed and uninterrupted possession of the corpus and a sum of Rupees 75,000 as damages from the date of the plaint until the Plaintiffs – Respondents recover possession.

The Facts

2. In the plaint to the District Court of Gampaha, the following has been stated inter alia. K.L.M.J.S. Kadeeja Umma and J.M.M. Alavi became entitled to the land described in the 2^nd schedule to the plaint by deeds bearing Nos. 1441 and 1442 executed by S.M. Saheed Notary Public on 22.04.1927. K.L.M.J.S. Kadeeja Umma has temporarily transferred her title to B. Daniel Fernando (father of the Defendant - Appellant) by deed bearing No.10159 (marked “P7”) executed by K.D.P.S. Gonathilake Notary Public on 04.07.1957 to obtain a loan facility.

3. The land was then divided between K.L.M.J.S. Kadeeja Umma and J.M.M. Alavi through plan bearing No.1553 made by S. Perera licensed surveyor dated 07.07.1961 whereby K.L.M.J.S. Kadeeja Umma has become entitled to the land described in the 3^rd schedule to the plaint.

She has possessed this land for over ten years.

4. Following the demise of K.L.M.J.S. Kadeeja Umma in 1985, her children, the 1^st – 7^th Respondents have become entitled to the land in question. They maintain that possession of the land in suit was never handed over to B. Daniel Fernando and that following the death of their mother, they have possessed the land in suit.

5. In his answer, the Defendant – Appellant maintained the position that upon the failure of K.L.M.J.S. Kadeeja Umma to pay the loan or the interest, B. Daniel Fernando, the father of the Defendant – Appellant became entitled to the land in suit and that K.L.M.J.S. Kadeeja Umma never retransferred the land back to her. He has submitted that B. Daniel Fernando has possessed the land in suit for over ten years. He further stated that on 01.07.1964 B. Daniel Fernando transferred an undivided share of the land to him by deed bearing No. 148 executed by Notary Public P. Alwaas. The Defendant – Appellant has then occupied this land for ten years and had rubber plantations in the land.

6. Therefore, denying the averments of the Plaintiffs – Respondents, the Defendant - Appellant has prayed for the dismissal of the plaint, a declaration that the defendant is a co-owner to the land described in the 3^rd schedule to the plaint and the ejectment of the Plaintiffs - Respondents and anyone holding under them from the land and to handover the peaceful, uninterrupted possession of the corpus to the defendant.

7. The learned District Judge has held in favor of the Plaintiffs – Respondents in the Judgment dated 03.03.2011, granting the reliefs prayed for in the Plaint. Aggrieved, the Substituted Defendant - Appellant has appealed to the High Court of the Western Province holden in Gampaha to set aside the Judgment dated 03.03.2011. The appeal was dismissed by the Lordships of the High Court on 16.07.2018 on the basis that the Plaintiffs – Respondents have acquired prescriptive title to the land in suit.

8. Being aggrieved by the decision of the High Court, the Substituted Defendant - Appellant preferred the instant appeal to this Court. This Court granted leave to appeal on the question of law set out in subparagraph (b) of paragraph 15 of the petition dated 27.08.2018.

Question of Law

“Did the Civil Appellate High Court err in law by failing to consider that in order to obtain a decree on prescription, adverse, independent an