IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Don Premaratne Wijesinghe, No. 559, Peradeniya Road, Kandy. Plaintiff SC APPEAL NO: SC/APPEAL/58/2018 SC LA NO: SC/HCCA/LA/388/2016 HCCA/KANDY NO: CP/HCCA/KANDY/63/2013 (FA)

DC MATALE NO: L 5896 Vs.

1. Ekanayake Mudiyanselage Sarath Bandara Ekanayake, Pologolla.

2. District Land Registrar, Land Registry, Matale.

Defendants AND BETWEEN Don Premaratne Wijesinghe, No. 559, Peradeniya Road, Kandy.

Plaintiff-Appellant Vs.

1. Ekanayake Mudiyanselage Sarath Bandara Ekanayake, No. B 2, Mahaweliniwasa, Polgolla. 2. District Land Registrar, Land Registry, Matale.

Defendant-Respondents AND NOW BETWEEN Don Premaratne Wijesinghe, No. 559, Peradeniya Road, Kandy Plaintiff-Appellant-Appellant Vs.

1. Ekanayake Mudiyanselage, Sarath Bandara Ekanayake, No. B 2, Mahaweliniwasa, Polgolla.

Defendant-Respondent-Respondent Before: P. Padman Surasena, J.

Janak De Silva, J.

Mahinda Samayawardhena, J.

Counsel: J.P. Gamage with Namal Ralapanawa and Nisansala Pathirana for the Plaintiff-Appellant-Appellant.

Harindra Rajapaksha with Subhashini Priyanthika for the Defendant-Respondent-Respondent.

Argued on : 05.05.2022 Written submissions:

by the Plaintiff-Appellant-Appellant on 04.06.2018 and

16.06.2022.

by the Defendant-Respondent-Respondent on 13.09.2018.

Decided on: 19.07.2023 Mahinda Samayawardhena, J.

The plaintiff filed this action against the defendant in the District Court of Matale seeking a declaration of title to the land described in the schedule to the plaint and a declaration that the defendant’s title deed No. 1711 is a forgery. Conversely, the defendant sought a declaration of title to the same land and a declaration that the plaintiff’s title deed No. 275 is a forgery. At the trial, paragraphs 2-5 of the plaint were recorded as admissions, i.e., Atipola Kiri Banda Karunaratne was the original owner of the land; he transferred his rights by deed No. 1451 to four persons including Heen Banda Atipola; the other three persons later transferred their rights to the said Heen Banda Atipola by deed No. 10601; and Heen Banda Atipola by deed No. 183 dated 01.02.1997 gifted the land to Bandaranayake. Both parties accept that the said deed of gift No. 183 was later revoked by Heen Banda Atipola. The fact that Heen Banda Atipola was at one time the owner of this land was admitted by both parties. The real issue was whether Heen Banda Atipola transferred the land to the plaintiff by deed No. 275 or whether he transferred the land to the defendant by deed No. 1711. In the event the Court decided that the forgery was not proved, the defendant alternatively claimed priority by registration of his deed in the correct folio despite his deed having been executed after the deed of the plaintiff.

However, during the course of leading evidence in the defendant’s case, a further issue was raised by the defendant on the basis that by judgment delivered on 10.06.2009 in case No. CA/1152/98 marked V3 (page 542 of the brief), the Court of Appeal had come to the conclusion that the aforementioned deed No. 1451 attested by a notary public, namely T.M.A. Sally, is null and void since the notarial licence of Mr. Sally had not been extended at the time of execution of the deed and therefore both parties to the present case cannot derive title from Heen Banda Atipola.

The Court of Appeal concluded that “According to the evidence of Malani Perera an official of the High Court of Kandy, the notarial license of T.M.A. Sally who executed the deed No. 1451 of 11.04.1978 had not been extended beyond 22.02.1978. Accordingly Mr. T.M.A. Sally was not a notary public on the date he attested the deed No. 1451 which was marked V1 at the trial.” But according to the judgment of the District Court marked V8 (page 580 of the brief), witness Malani Perera’s evidence is that notary Sally had a valid licence at the time of the execution of deed No. 1451. The evidence is not available in the brief. The Court of Appeal in its judgment has not