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I N THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal in terms of section 5c of the High Court of the Provinces (Special Provisions) Act, No. 19 of 1990 as amended. P. K. Nimal Upali Alahakoon No. 193/4, W.A. Silva Mawatha, Wellawatte, Colombo 06. Plaintiff SC Appeal No. 153/2013 SC HCCA/LA No. 150/2011 WP/HCCA/Mt. No. 01/2005(F) DC Mt. Lavinia No. 1145/99/L Vs. M. Azwer Hassim No. 8, Alexandra Road, Colombo 06. Defendant AND BETWEEN M. Azwer Hassim No. 8, Alexandra Road, Colombo 06. Defendant-Appellant Vs. P. K. Nimal Upali Alahakoon 1
M P C No. 193/4, W. A. Silva Mawatha, Wellawatte, Colombo 06. Plaintiff-Respondent AND NOW BETWEEN . Azwer Hassim No. 08, Alexandra Road, Colombo 06. (Deceased) Defendant-Appellant-Appellant Abdullah Azwar No. 08, Alexandra Road, Colombo 06. Substituted Defendant-Appellant- Appellant Vs. . K. Nimal Upali Alahakoon No. 193/4, W. A. Silva Mawatha, Wellawatte, Colombo 06. (Deceased) Plaintiff-Respondent-Respondent handralatha Abekoon No. 193/4, W. A. Silva Mawatha, 2
B C D K G Wellawatte, Colombo 06. Substituted Plaintiff-Respondent- Respondent efore : E. A. G. R. Amarasekara, J Kumudini Wickremasinghe, J K. Priyantha Fernando, J ounsel : Faisz Mustapha, PC with Hemasiri Withanachchi and Thushani Machado for the Defendant-Appellant-Appellant instructed by Sanjeewa Kaluarchchi. eoffry Alagaratnam, PC with B. Illeperuma for the Substituted-Plaintiff-Respondent- Respondent. Argued on : 13.05.2024 ecided on : 29.10.2024 . PRIYANTHA FERNANDO, J 1. The Defendant-Appellant-Appellant (hereinafter referred to as the defendant) preferred the instant appeal against the judgment of the Provincial High Court of Civil Appeal of the Western Province holden in Mount Lavinia which held in favour of the Plaintiff-Respondent- Respondent (hereinafter referred to as the plaintiff) and declared that the plaintiff is entitled to a six feet wide access road which he has been using across the land of the defendant. The said claim for six feet wide access road over the defendant’s land forms the subject matter of this case. 2. The plaintiff states that, the matter between the parties was referred to the mediation board for settlement. However, as it yielded no settlement, action was instituted by the plaintiff in the District Court 3
of Mount Lavinia seeking that the plaintiff be allowed to use the said access road as prayed for. 3. The learned District Judge delivering her judgment dated 07.03.2005 held in favour of the plaintiff and granted the relief prayed, which is a 6 feet wide access road. 4. Being aggrieved by the judgment of the learned District Judge, the defendant preferred an appeal to the Provincial High Court of Civil Appeals holden in Mount Lavinia. The High Court by its judgment dated 31.03.2011 dismissed the appeal of the defendant. 5. Being aggrieved by the judgment of the Provincial High Court of Civil Appeals holden in Mount Lavinia, the defendant preferred an appeal to this Court. This Court granted leave to appeal on the questions of law no. (i), (ii) and (vii) set out in paragraph 12 of the petition dated 04.05.2011. Questions of Law (i) Did the Provincial High Court of Civil Appeals err in failing to appreciate that the judgment of the learned District Judge is indefinite and unenforceable and has necessarily to be set aside for non-compliance with Section 41 of the Civil Procedure Code which mandates the requirement to describe the right of way by reference to physical metes and bounds or by reference to
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