IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal under Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Miriyagalla Kankanamlage Vincent, No: 1195/6, Daluptiya Road, Hunupitiya, Wattala.

Plaintiff Vs Miriyagalla Kankanamlage Gunapala, No: 1195/5, Dalupitiya Road, Hunupitiya, Wattala.

SC/Appeal 50/2018 Defendant SC/HCCA/LA/231/2017 And WP/HCCA/COL/163/2021 (F)

D.C. Colombo DLM 27/2008 Miriyagalla Kankanamlage Vincent, No: 1195/6, Daluptiya Road, Hunupitiya, Wattala. Plaintiff - Appellant Vs Miriyagalla Kankanamlage Gunapala, No: 1195/5, Dalupitiya Road, Hunupitiya, Wattala.

Defendant - Respondent And Now Miriyagalla Kankanamlage Vincent, No: 1195/6, Daluptiya Road, Hunupitiya, Wattala.

Presently at No. 46/17, Mosque Lane, Nawala Road, Rajagiriya.

Plaintiff–Appellant- Petitioner/Appellant Vs Miriyagalla Kankanamlage Gunapala, No: 1195/5, Dalupitiya Road, Hunupitiya, Wattala.

Defendant -Respondent -Respondent Before: Murdu N.B. Fernando, PC. J., S.Thurairaja, PC. J. and K.K. Wickremasinghe, J.

Counsel: Rasika Dissanayake AAL for the Plaintiff- Appellant- Appellant Sudharshani Coorey AAL for the Defendant- Respondent-Respondent Argued on: 15.03.2021 Decided on: 11.06.2024 Murdu N.B. Fernando, PC. J., The Plaintiff-Appellant-Appellant (“the Plaintiff”) preferred this appeal against the judgement of the Civil Appellate High Court of Colombo (“the High Court”) dated 22^nd March, 2017. The High Court upheld the judgement of the District Court dated 04^th October, 2012 which dismissed the Plaintiff’s case with costs and permitted the claim-in-

reconvention of the Defendant-Respondent-Respondent (“the Defendant”).

The Plaintiff obtained Leave from this Court on three questions of law, which are as follows;

i) Is the Plaintiff holding the paper title in respect of lot 03 in Plan

269/1995 in trust in favour of the Defendant?

ii) In the circumstances of the case, when the mother is still living at the time of the claim-in-reconvention and also up to now, could the Defendant seek a declaration that the Plaintiff is holding the paper title in trust in favour of the Defendant?

iii) In any event, is there a constructive trust in the present case?

The Plaintiff instituted the instant case in the District Court of Colombo to obtain a declaration of title to the land described in the 2^nd schedule to the plaint and to eject the Defendant and all those holding under him from the land described in the 3^rd schedule to the plaint.

The Plaintiff’s case was that he purchased the land depicted in the 1^st schedule to the plaint in extent AO RO P25.11 on 07^th December, 1984 by a Deed bearing No. 2825. Thereafter, the land was sub-divided into three lots and a road way. Two lots (lots 01 and

02) were alienated and he permitted his brother the Defendant, to occupy a portion of the remaining lot 03.

The Plaintiff also pleaded that subdivision of the land took place according to Plan bearing No 269/1995, and the 2^nd schedule to the plaint depicted the extent of lot 03 as AO RO P9.3 and the 3^rd schedule of the plaint as the area occupied by the Defendant which was in extent of AO RO P5.

The plaint is silent on which date the Defendant became the Plaintiff’s licensee but states that though requested the Defendant failed to vacate the portion of the land occupied by him. In the aforesaid circumstances, the Plaintiff sued the Defendant and also claimed damages.

The Defendant on the other hand, sought to dismiss the Plaintiff’s case and further moved for a declaration that the Plaintiff is holding the paper title to lot 03, on a constructive trust, in favour of the Defendant.

The Defendant also pleaded that the entire land in extent of 24.10 perches depicted in Plan No 269/1995 was purchased from the consideration provided by the mother and her intention was to purchase the land for the benefit of both sons, the Plaintiff and the Defendant.

At the trial, the right to begin the case fell upon the Defendant,