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2021 Supreme(SRI)(SC) 365
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of section 5 C of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 as amended by Act No. 54 of
2006.
SC Appeal 53/2021 SC/HCCA/LA Appln No : 106/2019 High Court Case No : WP/HCCA/Negombo/10/2014/LA [Formerly WP/HCCA/Gampaha/49/2014/LA] District Court of Negombo Case No: 7566/L
1. K. M. Hema Celsia Fernando, No. 48, St Joseph’s Street, Negombo.
2. N. H. Lourds Sulani Jayasinghe, No. 48/1, St Joseph’s Street, Negombo.
PLAINTIFFS.
Vs.
K. Madhuri Anuradha Rodrigo, No. 48/2, St Joseph’s Street, Negombo.
DEFENDANT.
AND BETWEEN
1. K. M. Hema Celsia Fernando, No. 48, St Joseph’s Street, Negombo.
2. N. H. Lourds Sulani Jayasinghe, No. 48/1, St Joseph’s Street, Negombo.
PLAINTIFF - APPELLANTS.
Vs.
K. Madhuri Anuradha Rodrigo, No. 48/2, St Joseph’s Street, Negombo.
DEFENDANT - RESPONDENT.
AND NOW BETWEEN K. Madhuri Anuradha Rodrigo, No. 48/2, St Joseph’s Street, Negombo.
DEFENDANT - RESPONDENT - APPELLANT.
Vs.
1. K. M. Hema Celsia Fernando, No. 48, St Joseph’s Street, Negombo.
2. N. H. Lourds Sulani Jayasinghe, No. 48/1, St Joseph’s Street, Negombo.
PLAINTIFF - APPELLANT - RESPONDENTS.
Before: P. PADMAN SURASENA J ACHALA WENGAPPULI J MAHINDA SAMAYAWARDHENA J Counsel: Aravinda Athurupana for the Defendant-Respondent-Appellant.
Sudarshani Cooray for the Plaintiff-Appellant-Respondents.
Argued on: 04 - 08 - 2021 Decided on: 16 - 11 -2021 P. Padman Surasena J The Plaintiff - Appellant - Respondents (hereinafter referred to as the Plaintiffs) filed the plaint dated 17-04-2012 in the District Court of Negombo praying inter alia for a declaration that the Defendant-Respondent-Appellant (hereinafter referred to as the Defendant) is not entitled to use as a right of way, Lot 5 and Lot 4 depicted in Plan No. 1177 dated 13-04-1982, prepared by R. I. Fernando Licensed Surveyor (hereinafter referred to as the Plan No. 1177). The said Lots are more fully described respectively in the 5th and 6th schedules to the plaint. According to the Plan No. 1177, the said Lots 5 and 4 jointly make a roadway to gives access to Lots 2 and 3 depicted in the same Plan, from St. Joseph’s Street.
The 1st Plaintiff occupies Lot 1; the 2nd Plaintiff occupies Lot 2; and the Defendant occupies Lot 3 depicted in the said Plan. The said plan is a partition plan (surveyed and partitioned on 13-04- 1982) prepared to partition then existed larger land called Beligahawatta amongst the three co- owners (siblings) at that time. The said three co-owners were firstly, Kurukulasuriya Maria Hema Celsia Fernando (the 1st Plaintiff), secondly, Kurukulasuriya Philip Antony Roshan Fernando and thirdly, Kurukulasuriya Micheal Joseph Rohan Fernando. The said three co-owners are the children of Kurukulasuriya Micheal Fester Fernando (father) and Kurukulasuriya Mary Melverin Florence Fernando (mother) who had owned the said larger land by virtue of deed No. 5121 attested on
02-05-1956 by P.D.F.de Croos Notary Public.
After the partition plan No. 1177 was prepared, the three co-owners executed the Deed of Partition bearing No. 404 dated19-02-1983, attested by M John Andrew Fabian Tissera Notary Public. According to the plaint, by virtue of the said Deed of Partition No. 404, the 1st Plaintiff became the owner of Lot 1; Kurukulasuriya Philip Antony Roshan Fernando became the owner of Lot No. 2; and Kurukulasuriya Micheal Joseph Rohan Fernando became the owner of Lot No. 3. Thereafter, Kurukulasuriya Philip Antony Roshan Fernando by virtue of deed No, 42 attested on 16-08-1994 by G. A. L. Palitha Dammika Silva Notary Public, transferred Lot 2, to the 1st Plaintiff.
Thereafter the 1st Plaintiff transferred the said Lot 2, to her daughter (the 2nd Plaintiff) by deed No. 2875 attested on 17-05-2005 by7 M. J. Basil A Tissera Notary Public.
Kurukulasuriya Micheal Joseph Rohan Fernando Transferred Lot 3 to Kaluarachchige Ignatious Loyola Rodrigo and Wimalawathie Sangaraja by deed No. 1699 attested on
