IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA SC APPEAL 122/17 Manatungage Isilin Nona, SC HC (CA) LA 271/16 Moragalla, Beruwala.

APPEAL NO. WP/HCCA/KAL/121/2010 (F)

D.C KALUTARA CASE NO. 4976/L PLAINTIFF -VS-

Seneriya Ranasinghe Pathmarajah Liyanaarachchi, Joseph Coorey Mawatha, Bonnalagoda, Beruwala.

DEFENDANT AND BETWEEN Manatungage Isilin Nona, Moragalla, Beruwala.

PLAINTIFF- APPELLANT -VS-

Seneriya Ranasinghe Pathmarajah Liyanaarachchi, Joseph Coorey Mawatha, Bonnalagoda, Beruwala.

DEFENDANT- RESPONDENT AND NOW BETWEEN Seneriya Ranasinghe Pathmarajah Liyanaarachchi, Joseph Coorey Mawatha, Bonnalagoda, Beruwala.

DEFENDANT- RESPONDENT-

PETITIONER -VS-

Manatungage Isilin Nona, Moragalla, Beruwala.

PLAINTIFF- APPELLANT-

RESPONDENT Before: Jayantha Jayasuriya, PC, CJ Murdu N.B. Fernando, PC, J E.A.G.R. Amarasekara, J Counsel: Hemasiri Withanachchi with Shantha Karunadhara for the Defendant-Respondent-

Appellant M.D.J Bandara with Upali Alwis instructed by Mrs. Yamuna Kumari for the Plaintiff-

Appellant- Respondent Argued on: 06.09.2022 Decided on:28.11.2024 E.A.G.R. Amarasekara, J This is an appeal by the Defendant- Respondent-Petitioner (hereinafter sometimes referred to as the Defendant) against the Judgment of the Civil Appellate High Court of the Western Province Holden at Kalutara dated 04.05.2016 allowing the appeal of the Plaintiff-Appellant-Respondent (hereinafter sometimes referred to as the Plaintiff) by which the said Civil Appellate High Court set aside the Judgment of the District Court of Kalutara dated 25.08.2010.

As per the Plaint filed on 07.11.2000 in the District Court of Kalutara, the Plaintiff described the chain of title and cause of action as follows:

• By Deed of Partition No. 1394 dated 27.07.1988 one Bellana Vithanage Ariyadasa Rodrigo became entitled to Lot 2 of the land called 'Kandewatte', described in the schedule to the Plaint and the said Ariyadasa Rodrigo by Deed No. 4501 dated 03.01.1991 had transferred the same to one Pettakuttige Sarath Silva. The aforesaid Sarath Silva by Deed No. 4620 dated 21.03.1991 had transferred the said land to Don Asel Wickramasiri and, by Deed No.4650 dated 24.04.1991 said Asel Wickramasiri had transferred the same to Manatungage Isilin Nona, the Plaintiff.

• Further, the Plaintiff and her predecessors-in-title were in uninterrupted and undisturbed possession thereof for over ten years and thereby had acquired prescriptive title thereto.

• The Plaintiff by Agreement No. 1453 dated 23.03.1994 leased out the said property for a period of 99 years to one Rosa Schneider of Gerpinger Strasse 35, 83404, Ainring, Germany subject to the terms and conditions in the said agreement for construction of a building thereon.

• However, the said Rosa had never entered the land in suit and failed to construct any building or effect any improvements thereon, and hence the said Lease Agreement is illegal and cannot be enforceable.

• The Plaintiff is the owner of the said land and, the Defendant on or about 04.11.2000 had forcibly and unlawfully entered the said land without any rights thereto with the objective to put up a wall to separate the part of land and/or a building thereon and heaped up building materials in the said property and as a result the Plaintiff had made a complaint to the Beruwala Police on the same date in that regard.

As a result, the Plaintiff had prayed for a declaration of title as the sole owner of the land described in the Schedule to the Plaint, to evict the Defendant and all persons holding under him while restoring the peaceful possession to the Plaintiff and, for damages etc.

It must be observed that even though, the Plaintiff had averred that the said lease agreement with the German national Rosa Schneider is illegal and invalid, and thus, indicated that right to possess the land was with the Plaintiff, said Rosa Schneider had not been made a party to the plaint to ascertain a finding in the Plaintiff’s favour. This is important as her prayers in th