IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an application for Leave to appeal under Section 5C (1) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended by Act No. 54 of 2006.

SC Appeal No. 172/ 2010 SC/HCCA/LA/195/10 Freddy Kuruppu Nanayakkara, No.15, Weerasinghe Lane, Panadura.

WP/HCCA/KAL/62/2008 (F)

and presently, D.C. Panadura Case No. 1430/L No. 160/2, Central Avenue, Laverton, Victoria, Australia.

PLAINTIFF Vs.

Thellamurege Don Yasapala Padmasiri Samaranayake, No. 13, Weerasinghe Lane, Panadura.

DEFENDANT AND BETWEEN Thellamurege Don Yasapala Padmasiri Samaranayake, No. 13, Weerasinghe Lane, Panadura.

DEFENDANT-APPELLANT Vs.

Freddy Kuruppu Nanayakkara, No.15, Weerasinghe Lane, Panadura.

and presently, No. 160/2, Central Avenue, Laverton, Victoria, Australia.

PLAINTIFF-RESPONDENT AND NOW BETWEEN Thellamurege Don Yasapala Padmasiri Samaranayake (deceased), No. 13, Weerasinghe Lane, Panadura.

DEFENDANT-APPELLANT-APPELLANT Thellamurege Don Pubudu Mangala Samaranayake (Substituted), No. 13, Weerasinghe Lane, Galle Road, Panadura.

SUBSTITUTED DEFENDANT-APPELLANT-

APPELLANT Vs.

Freddy Kuruppu Nanayakkara (deceased), No.15, Weerasinghe Lane, Panadura.

and presently, No. 160/2, Central Avenue, Laverton, Victoria, Australia.

PLAINTIFF- RESPONDENT-

RESPONDENT

1. Priyanthi Kuruppu Nanayakkara, 2. Indra Lakshman Kuruppu Nanayakkara, 3. Ashanka Dananjaya Kuruppu Nanayakkara, All of No. 160/2, Central Avenue, Laverton, Victoria, Australia.

SUBSTITUTED PLAINTIFF-

RESPONDENT-RESPONDENTS Before: P. Padman Surasena, J. (as His Lordship the Chief Justice was then)

Mahinda Samayawardhena, J.

Sobhitha Rajakaruna J.

Counsel: Rohan Sahabandu, PC with Chathurika Elvitigala, instructed by Sarath Welgama for Substituted Defendant-Appellant-Appellant.

Saliya Peiris, PC with Nisal Hennadige for Substituted Plaintiff-Respondent-

Respondent.

Argued on: 07.02.2025 Decided on: 09.10.2025 Sobhitha Rajakaruna J.

This Court granted Leave to Appeal on the following Question of Law set out in paragraph

15(a) of the Petition dated 23.06.2010:

“Did the High Court err in holding that the Respondent had acquired a title to a right of way by prescription over the portion of the land situated adjoining the Eastern Boundary in ‘Lot C’ depicted in Plan bearing No. 3159 marked ‘P1’?”

The Plaintiff-Respondent-Respondent (‘Plaintiff’) instituted an action in the District Court of Panadura against the Defendant-Appellant-Appellant (‘Defendant’), seeking, inter alia, a declaration that, through prescriptive rights, the Plaintiff is entitled to use the current right-of- way over the consolidated strip of land described in Nos. 1, 2, and 3 of the 3^rd Schedule to the Plaint of the Plaintiff. Alternatively, the Plaintiff sought a declaration that he is entitled to use the land described in No. 1 of the 3^rd Schedule to the Plaint as a right-of-way of necessity. The Plaintiff claims that he became the owner of the land described in the 1^st Schedule to the Plaint through the final decree issued in the partition action bearing case No. 20241 of the District Court of Kalutara.

The Defendant filed an answer, admitting only the averments in paragraphs 9 and 11 of the Plaintiff’s Plaint. The stand taken by the Defendant in the District Court was that the Plaintiff had another roadway other than the right-of-way claimed through the District Court Action. The learned District Judge of Panadura, delivering her judgment on 09.05.2008, answered the issues in favour of the Plaintiff and decided that the Plaintiff has a right to possess, during his lifetime, the land described in the 1^st Schedule of the Plaint. Thereafter, the District Court decided that the Plaintiff is entitled, based on prescription, to use the land described in Nos. 1, 2, and 3 of the 3^rd Schedule (the roadway used by both parties) the Plaint of the Plaintiff and also that the Plaintiff is entitled to use the land described in No. 1 of the 3^rd Schedule as a right-of-way. A