IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Rev. Omalpe Somananda Thero, Sri Jinaraja Viharaya, Danvilana, Veyangoda.

Petitioner-Petitioner-Appellant SC/APPEAL/206/2012 WP/HCCA/GAM/10/2010/REV DC GAMPAHA 38834/L Vs.

Rev. Ratmale Sri Somarathna Thero, Sri Poorwaramaya, Naiwala, Veyangoda.

Substituted Plaintiff-Respondent-

Respondent Before: Hon. Chief Justice Murdu N.B. Fernando, P.C.

Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: Manohara De Silva, P.C. with Harithriya Kumarage for the Appellant.

Rohan Sahabandu, P.C. with Pubudu Weerasuriya for the Respondent.

Argued on: 24.10.2024 Written Submissions on:

By the Appellant on 28.02.2013 and 13.12.2024 By the Respondent on 20.02.2013 and 12.12.2024 Decided on: 14.03.2025 Samayawardhena, J.

This case has a history spanning thirty years. The plaintiff filed this action against the defendant in the District Court of Gampaha by plaint dated 08.08.1995 seeking, inter alia, a declaration that he was the Viharadhipathy of Jinaraja Viharaya in Veyangoda, and the recovery of damages from the defendant until the plaintiff is restored to possession. The defendant filed answer seeking dismissal of the plaintiff’s action on the basis that he had been in lawful possession of the temple. In the answer the defendant took up the position that the premises in suit was gifted to Paththalagedara Sri Ubhayalokartha Saadhaka Bauddha Samithiya by deed No. 115 of 03.05.1915. After a lengthy trial, the District Court pronounced the judgment dated 05.05.1997 in favour of the plaintiff. The District Judge held that the plaintiff was entitled to evict the defendant from the temple and to recover possession and damages.

Although the defendant appealed against this judgment to the Court of Appeal, the appeal was abated by the Court of Appeal on 21.02.2003, as no steps were taken to prosecute the appeal after the death of the defendant. The original case record was returned to the District Court.

The decree was then entered in the District Court and the order to execute the writ was made. When the Fiscal went to the premises with the original plaintiff on 25.09.2003 to deliver possession to the plaintiff, another priest, namely, Rev. Parakandeniye Dhammathilaka, had been in possession of the temple who had told the Fiscal that he was in possession of the temple with the permission of the Dayaka Sabhawa. The members of the Dayaka Sabhawa/Bauddha Samithiya have resisted the Fiscal in executing the writ. The Fiscal reported this to Court by report dated 29.09.2003 with the names of those members of the Dayaka Sabhawa.

The plaintiff-judgment creditor made an application to the District Court dated 21.10.2003 under section 325 of the Civil Procedure Code making those persons mentioned in the Fiscal’s report who resisted the execution of the writ as respondents. The 2nd to 6th respondents were respectively the chairman and the office bearers of the said Dayaka Sabhawa. The District Court dismissed the claim of the Dayaka Sabhawa by order dated 29.07.2004. On appeal, the Court of Appeal affirmed this order by Judgment dated 19.10.2007.

In the meantime, the original plaintiff passed away on 23.11.2005 and the District Court substituted the present substituted plaintiff in his place by order dated 08.12.2008.

Thereafter, the substituted plaintiff made an application to the District Court dated 23.11.2009 seeking to reissue the writ, after appointing another priest, namely, Rev. Omalpe Somananda Thero, who was at that time allegedly in unlawful possession of the temple, an executor de son tort, for the purpose of the execution of the decree in terms of section 341(1) of the Civil Procedure Code. The District Judge, by order dated 25.11.2009, appointed Rev. Omalpe Somananda Thero as the executor de son tort and reissued the writ.

When the Fiscal repaired to the premises to execute the writ of possession on 26.04.2010, he had again been resisted by a large number of people. Th