Jayantha Jayasuriya, PC, CJ

The Plaintiff-Appellant-Respondent (hereinafter called the Plaintiff) sued the Defendant-Respondent-Appellant (hereinafter called the Defendent) in the District Court of Colombo for declaration of title to the premises, which is the subject matter of the action and for the ejectment of the Defendent from the said premises. The property in question as described in the schedule is a land of one perch and thirty eight decimal in extent situated at 4^th Cross Street of Pettah and the building bearing assessment number 15 situated thereon. The Defendent resisted the action and preferred a claim in reconvention.

Both parties admitted that the Plaintiff’s father who was the owner of the premises in question rented out the said premises to the father of the Defendent, E Subramaniyam in 1954. Thereafter the Defendent came in to occupy the said premises, after the demise of his father.

The Plaintiff claimed, that his father died intestate in 1985, leaving his mother and three siblings along with him, as heirs. Thereafter in 1988, three siblings and the mother alienated their undivided rights from and out of the property in question to him and, the plaintiff became the sole owner of the premises in question as from the year 1988. Three years thereafter, in 1991 the plaintiff requested the Defendant to attorn and pay the rent. However the Defendant did not attorn as per the said request.

In 1992 the Plaintiff instituted action under consideration in the District Court.

Before the District Court, the Defendant refused to admit the ownership of the Plaintiff. Therefore one of the issues the Plaintiff raised, – issue no 4 – is whether the plaintiff is the owner of the property as pleaded in the plaint.

The Defendent interalia pleaded that the Plaintiff had no status or cause of action to institute the action and that the Plaintiff’s action was debarred by section 547 of the Civil Procedure Code. One of the issues raised by the Defendent - issue number 14 – was whether the plaintiff could maintain the proceedings without the estate of the deceased A.D.P. Siriwardane, being properly administered.

At the conclusion of the evidence presented by both parties, the Learned District Judge answered issue number 4 as ‘not proved’ and issue no 14 in the negative.

The Learned District Judge by her judgment dated 23 November 1998 dismissed the plaint subject to costs and denied the claim in reconvention of the Defendent. The Learned Judge held that no order can be made declaring the Plaintiff as the owner of this property as the father of the plaintiff had died without a last will and no testamentary proceedings had been instituted in relation to this property.

Both parties appealed against the Judgment of the District Court. The Court of Appeal by its judgment dated 26 August 2014 allowed the appeal of the Plaintiff and directed the learned District Judge to enter decree accordingly. In their Judgment the Learned Judges of the Court of Appeal held that the Learned District Court judge’s finding, that no title has passed onto the plaintiff by reason of the fact that the estate of his deceased father had not been administered is a misstatement of law and amounts to a misdirection.

The Defendant, being dissatisfied with the Judgment of the Court of Appeal sought leave of the Court of Appeal to appeal to the Supreme Court and the Court of Appeal by its Order dated 03 September 2014, allowed the leave to appeal application of the Defendant.

The substantial question on which the Court of Appeal granted leave, reads as follows. “Where the action is to recover immovable property on the basis of non- attornment and the defendant has put in issue and challenged the plaintiff’s right to recover the property in view of the bar contained in section 547 of the civil Procedure Code, can judgment be entered in favour of the plaintiff without taking into consideration, particularly the pleas of the defendant that the property is of the value of Rs 3,000,