IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of Section 5C of the High Court of the Provinces (Special Provisions) Act, No. 19 of

1990 as amended by Act, No. 54 of 2006. 1.Munasinghe Arachchige Theja Renuka No. 127/30, Vinayalankara Mawatha, Maradana, Colombo 10

2.Thanthirige Dona Mallika Swarnalatha No. 127/3, Vinayalankara Mawatha, Maradana, Colombo 10 Plaintiffs SC Appeal No: 53/2019 SC/HCCA/LA No. 523/2016 WP/HCCA/Colombo/56/2009/F DC Colombo No. 20539/L Vs.

W.K. Jagath alias Mangala No. 127/34, Vinayalankara Mawatha, Maradana, Colombo 10.

Defendant AND BETWEEN W.K. Jagath alias Mangala No. 127/34, Vinayalankara Mawatha, Maradana, Colombo 10. Defendant-Appellant Vs.

1.Munasinghe Arachchige Theja Renuka No. 127/30, Vinayalankara Mawatha, Maradana, Colombo 10

2.Thanthirige Dona Mallika Swarnalatha No. 127/3, Vinayalankara Mawatha, Maradana, Colombo 10 Plaintiff-Respondents AND NOW BETWEEN

1.Munasinghe Arachchige Theja Renuka No. 127/30, Vinayalankara Mawatha, Maradana, Colombo 10

2.Thanthirige Dona Mallika Swarnalatha No. 127/3, Vinayalankara Mawatha, Maradana, Colombo 10 Plaintiff-Respondent-Appellants Vs.

W.K. Jagath alias Mangala No. 127/34, Vinayalankara Mawatha, Maradana, Colombo 10.

Defendant-Appellant-Respondent Before: Chief Justice Jayantha Jayasuriya, PC Justice A.L. Shiran Gooneratne Justice Janak De Silva Counsel: Anuruddha Dharmaratne with Indunil Piyadasa instructed by Indika Jayaweera for the Plaintiff-Respondent-Appellants.

V. Thevasenathipathi with S. Roshanie for the Defendant-

Appellant-Respondent.

Argued on: 10/01/2024 Decided on: 05/04/2024 A.L. Shiran Gooneratne J.

By Plaint dated 08/11/2004, the 1^st and 2^nd Plaintiff-Respondent-Appellants (hereinafter sometimes referred to as the “Plaintiff-Appellants”) filed this action, D.C. Colombo No. 20539/L against the Defendant-Appellant-Respondent (“the Defendant- Respondent”), and sought a declaration that the Plaintiff-Appellants are entitled to Lots 6,8,9 and 10 of plan No. 1273 dated 16/05/1964 prepared by S. Jegatheesan, Licensed Surveyor which are depicted morefully in the 2^nd, 3^rd and 4^th schedules to the Plaint with the entitlement to commonly possess Lot 17, which is described in the 5^th schedule to the Plaint. A further declaration was sought to eject the Defendant-Respondent from the said Lot 17 of plan No. 1273 and for an order directing the removal of all constructions therein, to ensure free and un-hindered access to the commonly possessed lavatory and bathing facilities enjoyed by the Plaintiff-Appellants.

According to paragraph 2 of the Plaint, the 1^st Plaintiff-Appellant by Deed No. 7974 dated 01/09/1976, attested by V.S. Kodikara, Notary Public became entitled to Lot 6, of the said Plan No. 1273 bearing assessment No. 127/15 depicted in the 1^st schedule to the Plaint.

Paragraph 3 of the said Plaint states that the 2^nd Plaintiff-Appellant by Deed No. 1196 dated 13/06/1964 attested by T. Sri Ramanathan, Notary Public became entitled to Lots 8, 9, and 10 of plan No. 1273 dated 16/05/1964 prepared by S. Jegatheesan, Licensed Surveyor, bearing assessment Nos. 127/12, 127/11, and 127/10 depicted in the 2^nd, 3^rd and 4^th schedules respectively, to the Plaint.

In paragraph 4 of the Plaint, it is stated that the common lavatory and bathing facilities located on Lot 17 depicted in the 5^th schedule to the Plaint is used by the residents of the respective assessment numbers to Lots 1 to 16 and 18 as depicted in the said plan No. 1273.

In paragraph 6 of the Plaint, it is further contended that the Defendant-Respondent has illegally constructed a two storied building impeding the free access and enjoyment of the common facilities located on the said Lot 17 by the Plaintiff-Appellant.

The Defendant-Respondent by answer dated 17/03/2005, denies any encroachment to the said Lot 17 and upon Deed of Gift No. 09 dated 04/02/2004 attested by S. Sriyani, Notary Public, claims entitlement to premises bearing asses