IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA M.M.M. Ashar, No. 49/1A, Kawdana Road, Dehiwala.

Plaintiff SC APPEAL NO: SC/APPEAL/171/2019 SC LA NO: SC/HCCA/LA/59/2018 HCCA MT. LAVINIA NO: WP/HCCA/MT. LAV/88/14/F DC MT. LAVINIA NO: 2379/07/L Vs.

T.H. Kareem, No. 49/1B, Kawdana Road, Dehiwala. Defendant AND BETWEEN T.H. Kareem, No. 49/1B, Kawdana Road, Dehiwala.

Defendant-Appellant Vs.

M.M.M. Ashar, No. 49/1A, Kawdana Road, Dehiwala.

Plaintiff-Respondent AND NOW BETWEEN M.M.M. Ashar, No. 49/1A, Kawdana Road, Dehiwala.

Plaintiff-Respondent-Appellant Vs.

T.H. Kareem, No. 49/1B, Kawdana Road, Dehiwala.

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

A.L. Shiran Gooneratne, J.

Mahinda Samayawardhena, J.

Counsel: Lasitha Kanuwanaarachchi with Darshani Gampalage and Nipunika Rajakaruna for the Plaintiff-Respondent-Appellant.

H. Withanachchi with Shantha Karunadhara for the Defendant-Appellant-Respondent.

Argued on: 10.11.2022 Written submissions:

by the Plaintiff-Respondent-Appellant on 01.06.2020.

by the Defendant-Appellant-Respondent on 23.04.2021.

Decided on: 22.05.2023 Samayawardhena, J.

Introduction As crystalised in the issues, the plaintiff filed this action in the District Court of Mount Lavinia seeking a declaration of title to, ejectment of the defendant from, the land described in the second schedule to the plaint (which is part of the land described in the first schedule to the plaint), and damages. The defendant claimed prescriptive title to the land described in the second schedule to the plaint. After trial, the District Court entered judgment for the plaintiff. On appeal, the High Court of Civil Appeal of Mount Lavinia set aside the judgment of the District Court purely on the basis that the plaintiff did not prove title to the entirety of the land but only to 11/12 shares of the land. This appeal by the plaintiff is against the judgment of the High Court.

This Court has granted leave to appeal to the plaintiff on the following two questions of law:

(a) Did the High Court fail to consider that the defendant having entered the premises as a licensee of the plaintiff’s predecessor in title cannot deny the ownership of the plaintiff?

(b) Did the High Court err in law by failing to consider that the defendant being a trespasser could be ejected even by a co-owner?

Thereafter, the defendant has framed the following two questions of law:

(a) Is the plaintiff entitled to seek ejectment of the defendant from the land described in the second schedule to the plaint without establishing that the land described in the second schedule to the plaint is part of the land described in the first schedule to the plaint?

(b) If the plaintiff failed to establish it, has the plaintiff’s action been correctly dismissed by the High Court?

The District Court arrived at the finding that the defendant came into occupation of the house standing on the land in suit as a licensee of the father of Sithi Nazmy, namely Anzar, and continued in that capacity under Sithi Nazmy as well. It is from Sithi Nazmy the plaintiff purchased the land by the deed marked at the trial P3. The defendant in several places in his evidence admitted that he came into occupation of the house standing on the land described in the second schedule to the plaint at the invitation of Anzar, until Anzar repaid the money owed to him, and thereafter he has continued to occupy the house until now. The defendant has come into occupation of the house in 1978. The District Court dismissed the defendant’s claim of prescriptive title to the property. The High Court did not state that the finding of the District Court that the defendant did not succeed in his claim of prescriptive title was erroneous. The High Court did not interfere with that finding at all.

The defendant cannot dispute the title of the plaintiff to the land A defendant who enters into a land in a subordinate character such as a tenant, lessee or licensee of the plaintiff is estopped from disputing the ti