IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of Section 5 (C) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended by Act No. 54 of

2006.

S.C. Appeal No: 1. Hettigoda Gamage Sugathadasa, 44/2020 No, 128/6, Anderson Road, Dehiwala.

2. Hettigoda Gamage Gunadasa, SC/HCCA/LA No: No. 195/3, Neelammahara Road, 439/2019 Godagamuwa, Maharagama.

PLAINTIFFS WP/HCCA/MT No: Vs.

90/17/(F)

Hettigoda Gamage Gnanawathi, District Court Mount Lavinia No. 128/5, Anderson Road, Dehiwala.

Case No: 659/09/P DEFENDANT AND BETWEEN

1. Hettigoda Gamage Sugathadasa, No. 128/6, Anderson Road, Dehiwala.

2. Hettigoda Gamage Gunadasa, No. 195/3, Neelammahara Road, Godagamuwa, Maharagama.

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PLAINTIFF APPELLANTS Vs.

Hettigoda Gamage Gnanawathi, No. 128/5, Anderson Road, Dehiwala.

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DEFENDANT RESPONDENT AND NOW BETWEEN Hettigoda Gamage Gnanawathi, No. 128/5, Anderson Road, Dehiwala.

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DEFENDANT RESPONDENT APPELLANT Vs.

1. Hettigoda Gamage Sugathadasa, No. 128/6, Anderson Road, Dehiwala.

2. Hettigoda Gamage Gunadasa, No. 195/3, Neelammahara Road, Godagamuwa, Maharagama.

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PLAINTIFF APPELLANT RESPONDENTS Before : A.L. Shiran Gooneratne, J.

: Janak De Silva, J.

: Sampath B. Abayakoon, J.

Counsel : J.A.J. Udawatta with Anuradha Ponnamperuma instructed by Ganga Wanigarathna for the Defendant Respondent Appellant.

: Lasitha Kanuwanaarachchi with Tharushi Amarasinghe and Charith Widanapathirana -

instructed by Aruni De Silva for the Plaintiff -

Appellant Respondents.

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Argued on : 28 02 2025 - - - -

Written Submissions : 15 07 2020 (By the Defendant Respondent Appellant)

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: 20 08 2020 (By the Plaintiff Appellant Respondents)

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Decided on : 30 05 2025 Sampath B. Abayakoon, J.

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This is an appeal preferred by the defendant respondent appellant (hereinafter -

sometimes referred to as the defendant or defendant appellant) on the basis of being aggrieved of the judgment pronounced by the Provincial High Court of the Western Province holden in Mount Lavinia while exercising its civil appellate jurisdiction.

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The said judgment has been pronounced on 15 10 2019 in Case No.

WP/HCCA/MT/90/2017 (F).

The facts that led to the judgment of the learned District Judge and the impugned appellate judgment of the learned Judges of the High Court are as follows.

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The plaintiff appellant respondents (hereinafter referred to as the plaintiffs) have instituted the Partition Action No. 659/09/P before the District Court of Mount Lavinia, seeking to partition the land morefully described in the schedule of the amended plaint between the two plaintiffs only, although they have mentioned the defendant as a party to the action.

After trial, the learned District Judge of Mount Lavinia, pronouncing her judgment on 12 10 2017, has determined among other matters that, the plaintiffs have only sought to partition a portion of a larger land without disclosing the rights of the defendant, which cannot be allowed in terms of Partition Law. It has also been determined that there is no basis for the Court - -

to grant a 10 foot wide road access to reach the portion of the land they sought to partition. After having discussed the facts as well as the relevant Partition Law in that regard, the learned District Judge has proceeded to dismiss the partition action.

Being aggrieved of the said judgment, the plaintiffs have appealed to the Provincial High Court of the Western Province holden in Mount Lavinia. Having considered the appeal preferred, the Provincial High Court while exercising its civil appellate jurisdiction, has determined that there was sufficient basis for the learned District Judge to order the partitioning of the land sought to be partitioned. It has been determined that since it is the duty of the Court to investigate the title of each party, the learned District Judge could have examined the title of the defendant as well, although the plaintiffs have not sought a partition decree against the defendant.

Accor