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

1. W. Arthur Deepal Peiris

2. W. Sunethra Peiris

3. W. Ashoka Ajith Peiris No. 256, Galle Road, Mount Lavinia.

Plaintiff-Appellant-Appellant SC/APPEAL/37/2014 WP/HCCA/MT/12/2008 (F)

DC MOUNT LAVINIA 701/02/SPL Vs.

Ranil Perera “Vajira Builders”, No. 2, Vajira Road, Colombo 04.

and “Seek Saloon”, No. 256B, Galle Road, Mount Lavinia.

Defendant-Respondent-Respondent Before: Hon. Justice S. Thurairaja, P.C.

Hon. Justice Janak De Silva Hon. Justice Mahinda Samayawardhena Counsel: Faisz Mustapha, P.C. with Hemasiri Withanachchi and Thushani Machado for the Appellant.

Navin Marapana, P.C. with Saumya Hettiarachchi and Uchitha Wickremasinghe for the Respondent.

Argued on: 31.07.2024 Written Submissions:

By the Appellant on 19.09.2024 By the Respondent on 24.09.2024 Decided on: 20.02.2025 Samayawardhena, J.

The 1st plaintiff became the owner of Lot 4 in Plan No. 7746 (V1) by a partition decree. He gifted it to his son, the 3rd plaintiff, subject to the life interest of himself and his wife, the 2nd plaintiff. Lot 4 is bounded on the east by the Galle Road, which is about 6 feet higher in elevation than the plaintiffs’ land. The western and northern boundaries of Lot 4 are Lots 2 and 3 respectively, which are owned by the defendant. The northern boundary of Lots 2 and 3 is Vidyala Mawatha. The position of the plaintiffs is that, due to the higher elevation of the Galle Road, rainwater collected on Lot 4 was naturally discharged through Lots 2 and 3 into the municipal drain on Vidyala Mawatha. However, after the defendant constructed a four-storied building covering Lot 3, rainwater was redirected and discharged solely through Lot 2. On 13.11.2002 (P6), the defendant obstructed this flow by constructing a wall along the eastern boundary of Lot 2, causing rainwater to accumulate on Lot 4. This led to severe consequences, including flooding and rendering the toilets in Lot

4 unusable.

The plaintiffs filed this action in the District Court of Mount Lavinia on 14.11.2002 seeking in the prayer to the plaint a declaration that they are entitled to discharge rainwater and sewage waste through Lot 2. They also sought an order directing the defendant to remove the wall constructed along the western boundary of the plaintiffs’ land (Lot 4), which obstructed the natural flow of water to Vidyala Mawatha.

The defendant filed answer seeking dismissal of the plaintiffs’ action.

After trial, in a brief judgment, the District Judge dismissed the plaintiffs’ action stating that all servitudes were extinguished upon the entry of the Final Decree of Partition and that the plaintiffs had failed to prove the exercise of such right for a period of 10 years following the decree.

In my view, the District Judge neither understood the case, nor analysed the facts from the correct perspective. This is evident by the following paragraph of the District Court judgment.

වැසි ජලයද, අප ⶼᮅවයද පිට කිරීමට පැමිණිලිකරුවන් ඉල්ලා සිටින්නන් දිර්ඝකාලීන බු්඿ිනේ අයිිය මත නේ. එන ේ නම් වි්තිකරුනේ ඉඩම උඩින් ව ර 10 ක කාලය්඿ නමවැනි පරවශතා අයිිය්඿ පැමිණිලිකරුවන් විසින් පාවි්චි කර ඇි බව ඔ්පු කලයුතුය. නමු්ත වි්තිකරුනේ ඉඩම උඩින් එවැනි කාණුව්඿ ිනබන බව නපන්වා දීමට පැමිණිලිකරුවන් අනපාන ා ්ත වී ඇත. එවැනි වි දිය යුතු ⷁᮅශේණය්඿ද ඉදිරිප්ත කර නැත. එවැනි ඳ න්඿ පැමිනිල්නල්ද නැත. ඒ අනුව අධිකරණයට නපනී යන්නන් වි්තිකරුට නබදුම් නඩුනේ අව ාන තීන්දු ⷁᮅකාශය අනුව හිමිකම් ලැබි ඇි ඔහුනේ කැබලි අංක 2 3 ම්ුර්ණනයන් නිද ේව බු්඿ි විදීම ද ා ඔවුන්ට මායිම් තා්පප ඉදි කිරීමට නිතයානුකුල අයිිවාසිකම් ඇි බව්තය.

The Final Decree of Partition entered on 03.04.1991 did not reserve such a servitude. Section 48(1) of the Partition Law, No. 21 of 1977, invests partition decrees with finality devoid of encumbrances other than those specified in the decree. It states, “the right, share or interest awarded by any such decree shall be free from all encumbrances whatsoever other than those specified in that decree.” What is meant by “encumbrance” is defined in the Partition Law and acco