Murdu N.B. Fernando, PC. J.,

This is an Appeal against the judgement of the Civil Appellate High Court of the Northern Province Holden in Jaffna (“the High Court”).

The Plaintiff-Appellant-Appellant (“the Plaintiff/ the Appellant”) instituted a pre- emptive rights application, in the District Court of Paruthithurai, also known as Point Pedro (“the District Court”) in terms of the Thesawalamai Pre-Emption Ordinance seeking inter-alia that the Plaintiff is entitled to pre-empt the share sold by the 2^nd Defendant, on Deed No. 4721 dated 21-07-1981 to the 3^rd and 4^th Defendants and to declare the said Deed as null and void.

The Defendants-Respondents-Respondents (“the Defendants/ the Respondents”) rejected the said contention and moved for dismissal of the Plaint.

The District Court dismissed the case of the Plaintiff with costs. The Plaintiff went before the High Court and the High Court too, dismissed the Plaintiff’s appeal.

Being aggrieved by the said decision the Plaintiff came before this Court. The Court granted leave to appeal on four Questions of Law raised by the Plaintiff. The fifth question was raised on behalf of the Defendants.

The said Questions of Law in verbatim are as follows:

1. Was the High Court of Civil Appeal, Jaffna in grave error in proceeding to affirm the judgement of the District Court on the erroneous basis, that the land in extent 9 lms 1½ kls in respect of which the Petitioner sought to enforce her right of pre-emption, not a divided land and it is an undivided portion of a larger land in extent of 35 lms totally disregarding the oral and documentary evidence, which overwhelmingly showed that the said land in extent of 9 lms 1½ kls is a divided land, with well defined boundaries?

2. Did the High Court of Civil Appeal, Jaffna having concluded that the conditional transfer Deed No 4721 was not genuine, thereby accepting the Plaintiff’s position that the said deed was executed in order to circumvent the provisions of the Pre-Emption Ordinance, err in law in concluding that the provisions of the Pre-Emption Ordinance were not applicable to a conditional transfer?

3. Did the High Court of Civil Appeal, Jaffna err in concluding that the land in extent of 9 lms 1½ kls in respect of which the Plaintiff sought to enforce her right of pre-emption was not a divided land, without considering the fact that even the Notice of Deed of Sale given by the 2^nd Defendant referred to the land, as the land in extent of 9 lms and 1½ kls?

4. Did the High Court of Civil Appeal, Jaffna err in totally failing to consider the submissions of the Plaintiff, that the learned District Judge was in grave error in holding that the Defendants had complied with the Pre-Emption Ordinance by having entrusted Notice of Sale of Deed No 4689 marked P3 at the Local Council office, disregarding the Plaintiff’s position that as the notice of the proposed sale was not given in compliance with Section 5 of the Pre-Emption Ordinance, the sale by Deed No 4721 marked P6 should be declared null and void and judgement should have been entered in favour of the Appellant?

5. In view of the learned District Judge’s answers to issues 16 and 17 and on a construction of Deed No 7687 marked as P7 produced by the Appellant, can the Appellant maintain this Appeal?

The Plaintiff’s case

- The Plaintiff and the Defendants are subject to the Thesawalamai law and the land in dispute is situated in the District of Jaffna.

- The Plaintiff was the owner of an undivided 1/3^rd share of the property morefully described in the plaint. The English translation of the Schedule to the Plaint reads as follows:

“At Polikandy Kurichchi, Udupitty [kovil] Parish, Vadamaradchy division in the District of Jaffna, Northern Province, the land called “Nampithavathai” in extent 35 lacham V.C. House 1, out of this eastern half of the western side half in extent 9 lacham V.C. 1½ kullis. Bounded on the East by [the property of] Parameswary wife of Karthikesu Selvaratham and others, North by the Lane, Wes