A.L. Shiran Gooneratne J.

[01] The Plaintiff-Respondent-Appellant instituted this action to partition the land called Indigahaowita alias Puwakgahaowita in extent 1 Rood and 27 perches (A.0 R.1 P.27) depicted in Surveyor General’s title Plan No. 183522 dated 04/10/1899, and morefully described in the schedule to the Amended Plaint dated 12/03/1990. The Plaintiff-Appellant’s claim was based on a Crown Grant given in the year 1900. However, there was no reference to any plan depicting the said corpus as described in the schedule to the Plaint. A Preliminary Plan of the land sought to be partitioned was appended to the Amended Plaint and in that the Plaintiffs have given undivided rights to the Plaintiffs and to the 1^st to 6^th Defendants.

[02] The 1^st, 3^rd, 7^th, 8^th, and 9^th contesting Defendants-Appellants-Respondents in their joint Amended Statement of Claim dated 10/09/1990 took up the position that Lots Nos. 1 and 2 depicted in the Preliminary Plan No. 123 dated 16/05/1987 made by Michel J. Silva Licensed Surveyor marked ‘X’, and the corresponding report marked ‘X1’, in extent of One Rood and Twenty Seven decimal Three Eight Five Perches (A.0 R.1 P.27.385) is a different land called Malapawulaowita alias Indigahaowita and sought a dismissal of the partition action. The Defendants- Respondents contend that in the absence of convincing evidence, the learned District Judge could not have decided with certainty the identity of the corpus and it was incumbent upon the trial court to ascertain the correctness of boundaries, demarcations of limits between owners of contiguous land deeds by landmarks, witnesses etc.

[03] All contesting Defendants-Respondents are challenging the identity of the corpus and are relying on a separate chain of title to the land called Malapawulaowita alias Indigahaowita commencing from the year 1947, registered in a separate folio. The Defendants-Respondents set out a pedigree, pursuant to the deeds they have submitted.

[04] Therefore, the substantial issue to be resolved in this action is whether the corpus sought to be partitioned is Indigahaowita alias Puwakgahaowita as submitted by the Plaintiff-Appellant or Malapawulaowita alias Indigahaowita as is the position of the contesting Defendants-Respondents.

[05] The learned District Judge by Judgment dated 13/11/2000, held in favor of the Plaintiffs and allowed the partition of the land depicted in Preliminary Plan No. 123 (X) dated 16/05/1987 made by Michel J. Silva, Licensed Surveyor.

[06] The Court of Appeal by Judgment dated 30/07/2008, set aside the Judgment of the District Court, essentially on the basis that the Plaintiffs have failed to establish the identity of the corpus.

[07] I will now briefly deal with the devolution of title relied upon by the Plaintiff- Appellant and the Defendants-Respondents. It is observed that the Court of Appeal has not specifically reversed the findings of the learned District Judge with regard to the devolution of title set out by either party.

The devolution of title relied upon by the Plaintiff-Appellant

[08] According to the pedigree set out in the Plaint, Kathriarachchige Don Samel who lived in the land to be partitioned for over 80 years, claimed ownership by long continued possession. The said Samel by Deed No. 2794 dated 22/08/1939 (P5), conveyed his title to Kaththriarachchige Don Charlis. Don Charlis by Deed No. 6368 dated 19/07/1947 (P6), conveyed title to Kathriarachchige Don Simeon. Don Simeon by Deed No. 4184 dated 10/06/1951 (P7), transferred title to Kathriarachchige Dona Aljinahamy. Dona Aljinahamy by Deed No. 14270 dated 02/08/1960 (P8), has conveyed title to Sendanayakaachchige Don Karunarathna (the 2^nd Defendant). The said Don Karunarathna by Deed No. 20489 dated 12/09/1966 (P9), conveyed his title to Don Karlinahamy who died unmarried and issueless.

[09] Karlinahamy’s rights devolved on her deceased brother Don Heralis Singho to an undivided ½ share and the balance ½ share to her deceased sister Dona Aljina