IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

1. Ambawatta Hewage Sisira Kumara, 2. Habaraduwa Pandigamage Mallika, 3. Ambawatta Hewage Chamila Kumari, All of ‘Athkam Niwasa’, Juwanpullegewatta, Petiyagoda, Kelaniya. Plaintiffs SC APPEAL NO: SC/APPEAL/138/2016 SC LA NO: SC/HCCA/LA/176/2015 HCCA GALLE NO: SP/HCCA/GA/47/2009 (F)

DC GALLE CASE NO: 15250/L Vs.

1. Ambawatta Hewage Dayliya Kanthi, 2. Buluwa Hewage Ratnasiri, Both of No. 5, Melagoda, Wanchawala, Galle.

Defendants AND BETWEEN

1. Ambawatta Hewage Sisira Kumara, 2. Habaraduwa Pandigamage Mallika, 3. Ambawatta Hewage Chamila Kumari, All of ‘Athkam Niwasa’, Juwanpullegewatta, Petiyagoda, Kelaniya.

Plaintiff-Appellants Vs.

1. Ambawatta Hewage Dayliya Kanthi, 2. Buluwa Hewage Ratnasiri, Both of No. 5, Melagoda, Wanchawala, Galle.

Defendant-Respondents AND NOW BETWEEN

1. Ambawatta Hewage Sisira Kumara, 2. Habaraduwa Pandigamage Mallika, 3. Ambawatta Hewage Chamila Kumari, All of ‘Athkam Niwasa’, Juwanpullegewatta, Petiyagoda, Kelaniya.

Plaintiff-Appellant-Appellants Vs.

1. Ambawatta Hewage Dayliya Kanthi, 2. Buluwa Hewage Ratnasiri, Both of No. 5, Melagoda, Wanchawala, Galle.

Defendant-Respondent-

Respondents Before: P. Padman Surasena, J.

K.K. Wickramasinghe, J.

Mahinda Samayawardhena, J.

Counsel: Dr. Sunil Coorey with Sudarshani Coorey for the Plaintiff-Appellant-Appellants.

Defendant-Respondent-Respondents absent and unrepresented.

Argued on: 27.04.2021 Written submissions:

by the Plaintiff-Appellant-Appellants on

16.12.2016 Decided on: 10.06.2021 Mahinda Samayawardhena, J.

The three Plaintiffs filed this action in the District Court of Galle seeking a declaration of title to the land described in the schedule to the plaint, ejectment of the two Defendants therefrom, and damages. The Defendants filed a joint answer seeking dismissal of the Plaintiffs’ action, a declaration that they are the owners of the land, and damages.

At the trial, admissions were recorded, and issues were raised and the case was re-fixed for further trial. The Defendants were not ready on the date of further trial and the trial was postponed. On the next date, the Defendants were absent and their Attorney-at-Law informed Court that she had no instructions. The Court fixed the case for ex parte trial against the Defendants.

At the ex parte trial, the evidence of the 1st Plaintiff was led by a President’s Counsel and documents P1-P7 were marked. The learned District Judge did not ask a single question from the witness nor was any clarification sought from Counsel for the Plaintiffs. The ex parte Judgment was postponed. By the ex parte Judgment delivered on 24.04.2009, the District Judge dismissed the Plaintiffs’ action on the basis that the Plaintiff failed to identify the corpus.

On appeal, the High Court of Civil Appeal affirmed the Judgment of the District Court. Hence the Plaintiffs before the final Court.

This Court granted leave to appeal on the question whether the High Court erred in law when it held that the corpus had not been identified in view of the unique facts of this case.

In my view, this question of law shall be answered in the affirmative and the appeal shall be allowed. Let me explain.

The parties to this action are members of the same family. They are not strangers to one another. The land in suit, which was their mother’s property, is described in the schedule to the plaint.

The Defendants inter alia in paragraphs 2 and 15 of the answer admitted the corpus and, in the prayer to the answer, sought a declaration of title to the corpus in their favour. Furthermore, at the trial, by way of a formal admission recorded as admission No. 2, the corpus was admitted. In terms of section 58 of the Evidence Ordinance, admitted facts need not be proved unless “the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.” But in this case, the Court did not require the corpus to be proved or properly identified despite its admission by the Defendan