IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal under and in terms of Section 5C of the High Court of the Provinces (Special Provisions) (Amendment) Act No. 54 of

2006.

M.Y. Jezeema Beebi, No. 166/8A, 166/8B, Elvitigala Mawatha, Colombo 05.

Plaintiff SC Appeal No: 47/2015 SC/HCCA/LA No. 497/2014 WP/HCCA/COL/29/2009/F DC Colombo No. 20654/L Vs.

Gothanayagi, No. 166/8, Elvitigala Mawatha, Colombo 05.

Defendant AND THEN BETWEEN M.Y. Jezeema Beebi, No. 166/8A, 166/8B, Elvitigala Mawatha, Colombo 05.

Plaintiff-Appellant Vs.

Gothanayagi, No. 166/8, Elvitigala Mawatha, Colombo 05.

Defendant-Respondent AND NOW BETWEEN M.Y. Jezeema Beebi, No. 166/8A, 166/8B, Elvitigala Mawatha, Colombo 05.

Plaintiff-Appellant-Petitioner Vs.

Gothanayagi, No. 166/8, Elvitigala Mawatha, Colombo 05.

Defendant-Respondent-Respondent Before: Justice P. Padman Surasena Justice A.L. Shiran Gooneratne Justice Arjuna Obeyesekere Counsel: Vishwa de Livera Tennekoon with Lilani Ganegama instructed by Nepataarachchi for the Plaintiff-Appellant-Appellant.

Heshan Thambimuttu with Prasanth Mahendran for the Defendant-

Respondent-Respondent.

Argued on: 17/02/2023 Decided on: 22/09/2023 A.L. Shiran Gooneratne J.

By Plaint dated 02/03/2005, the Plaintiff-Appellant-Appellant (hereinafter sometimes referred to as the “Plaintiff-Appellant”) filed this Action No. D.C. Colombo 20654/L against the Defendant-Respondent-Respondent (“the Defendant-Respondent”), and sought a declaration that the Plaintiff-Appellant is entitled to Lot 1, 2, 3 and 4 bearing Assessment Nos. 166/8A and 166/8B, Elvitigala Mawatha, Colombo 5, depicted in Plan No. 2055 dated 07/10/2001, made by I.M.C. Fernando, Licensed Surveyor and a declaration that the Defendant-Respondent is not entitled to the said land.

In paragraph 1 of the said Plaint, the Plaintiff-Appellant states that her mother M.I.S.S. Beebi became entitled by Deed of Disposition No. 16007 dated 17/05/1995, attested by the Commissioner of Department of National Housing, to Lots 5 and 6 bearing Assessment Nos. 166/8A and 166/8B Elvitigala Mawatha depicted in Plan No. MF

46/76 dated 06/08/1976 made by I.M.C. Fernando Licensed Surveyor. The Plaintiff- Appellant claims entitlement to the said land by virtue of Deed of Gift No. 3 dated

01/01/1996 attested by P.D.R. Priyadharshani, Notary Public.

According to paragraphs 5 and 6 of the Plaint, on or about 1997, the Defendant- Respondent had forcibly entered the southern side of Lot 6 and the eastern side of Lot 5 depicted in the said Plan No. MF 46/76. The Plaintiff-Appellant claims that with the concurrence of both parties to this action, the said land was resurveyed and the boundaries were demarcated by the said Plan No. 2055 dated 07/10/2001, and further that Lots 5 and 6 depicted in Plan No. MF 46/76 were amalgamated, sub divided and depicted as Lots 2, 3 and 4 in Plan No. 2055. The Plaintiff-Appellant also claims Lots 2, 3 and 4 in the said Plan No. 2055, as land encroached by the Defendant-Respondent. In Paragraphs 7 and 8 of the Plaint, the Plaintiff-Appellant states that, according to the said Plan No. 2055 dated 07/10/2001, the Defendant-Respondent has encroached zero decimal four two perches (0.42 perches) upon Lots 2, 3 and 4. The Plaintiff-Appellant relied on the said Plan No. 2055 to claim that, the Defendant-Respondent is using the encroached land unlawfully for construction purposes thereby causing mischief and irreparable loss to the Plaintiff-Appellant.

The Defendant-Respondent by amended answer dated 26/10/2005, denies any encroachment to the said land and states that she has acquired prescriptive title to Lot No. 4 in Plan No. MF 46/76 depicted as Lots Nos. 2, 3 and 4 in the resurveyed Plan No.

2055, for a period of over 30 years and prayed for a dismissal of the Plaint.

At the conclusion of the trial, the Additional District Judge by Judgment dated 16/01/2009, held inter alia, that the Defendant-Respondent has established unin