IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Athukoralalage Don Chandrasekera, Kosgahahena, Uggalla, Padukka.

Plaintiff SC APPEAL NO: SC/APPEAL/30/2016 SC LA NO: SC/HCCA/LA/138/2014 HCCA NO: WP/HCCA/AVI/517/2008(F)

DC AVISSAWELLA NO: 20406/P Vs.

1. Athukoralalage Lionel Harischandra

2. Ranawaka Arachchige Susilin Nona

3. Athukoralalage Don Sarathchandra All of Kosgahahena, Uggalla, Padukka.

Defendants AND Athukoralalage Don Sarathchandra, Kosgahahena, Uggalla, Padukka.

3rd Defendant-Appellant Vs.

Athukoralalage Don Chandrasekera, Kosgahahena, Uggalla, Padukka.

Plaintiff-Respondent

1. Athukoralalage Lionel Harischandra

2. Ranawaka Arachchige Susilin Nona Both of Kosgahahena, Uggalla, Padukka.

1st and 2nd Defendant-Respondents AND NOW BETWEEN Athukoralalage Don Chandrasekera, Kosgahahena, Uggalla, Padukka.

And presently of No. 08/02, Kosgahahena, Uggalla, Padukka.

Plaintiff-Respondent-Appellant Vs.

Athukoralalage Don Sarathchandra, Kosgahahena, Uggalla, Padukka.

3rd Defendant-Appellant-

Respondent

1. Athukoralalage Lionel Harischandra

2. Ranawaka Arachchige Susilin Nona Both of Kosgahahena, Uggalla, Padukka.

1st and 2nd Defendant-Respondent-

Respondents Before: Hon. Justice Vijith K. Malalgoda, P.C.

Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: W. Dayaratne, P.C. with D.N. Darmaratne for the Plaintiff-

Respondent-Appellant.

Pubudu Alwis with Supun Jayathilaka for the 3rd Defendant-Appellant-Respondent.

Written Submissions:

By the Plaintiff-Respondent-Appellant on 25.01.2017 By the 3rd Defendant-Appellant-Respondent on 02.05.2017 Argued on: 11.10.2023 Decided on: 04.07.2024 Samayawardhena, J.

Introduction The plaintiff filed this action seeking to partition Lot B of Plan No. 48A dated 13.01.1962 between the plaintiff and the 1st defendant in equal shares subject to the life interest of the 2nd defendant. The 3rd defendant was made a party since he has encroached upon a portion of Lot B on the western boundary.

After superimposition, the encroached portion was identified as Lot 1 in the Preliminary Plan No. 661. The western boundary of Lot B is Lot G, which was allotted to the 3rd defendant’s father in a previous partition action. Lot B was allotted to the plaintiff’s predecessor in title.

The 3rd defendant claims Lot 1 of the Preliminary Plan by prescription. On that basis, the 3rd defendant sought exclusion of Lot 1 from the land to be partitioned.

The District Court refused the 3rd defendant’s claim. On appeal, the High Court decided otherwise.

The question to be decided on this appeal is whether the High Court is justified in overturning the District Court’s decision and excluding Lot 1 from the corpus on the basis that the 3rd defendant acquired prescriptive title to that portion.

The present owner of Lot G is the 3rd defendant. Since Lot G consists of 4 acres 3 roods and 39 perches, there is no necessity for the 3rd defendant to encroach upon neighbours’ lands. When the case was pending in the District Court, the 3rd defendant was a police officer.

The 3rd defendant admits that Lot B belongs to the plaintiff and the 1st defendant on deeds. He also admits that Lot 1 of the Preliminary Plan is part of Lot B, for the partition of which the action was filed. Then the burden shifts fairly and squarely to the 3rd defendant to prove by affirmative evidence that he prescribed to Lot 1 in terms of section 3 of the Prescription Ordinance, No. 22 of 1871.

Section 3 of the Prescription Ordinance which describes the mode of acquisition of prescriptive title reads as follows:

Proof of the undisturbed and uninterrupted possession by a defendant in any action, or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the claimant or plaintiff in such action (that is to say, a possession unaccompanied by payment of rent or produce, or performance of service or duty, or by any other act by the possessor, from which an acknowledgment of a right existing in another