DILRUKSHI DISSANAYAKE REPRESENTED

DILRUKSHI DISSANAYAKE REPRESENTED BY HER POWER OF ATTORNEY
VIRAJ JAYAKODY

Vs.

MEULET FERNANDO AND ANOTHER

SUPREME COURT
B.P. ALUWIHARE P.C.J.
SISIRA J. DE ABREW J.
PRASANA JAYAWARDENA P.C., J.
SC APPEAL NO. 87/16
SC HCCA LA NO.648/14
HC CASE NO. WP/ HCCA/ MT/113/ 2012 (F)
DC MORATUWA CASE NO. 543/ L
01.11.2016

Declaration of title and unlawful possession - Illegal possession - Rented premises - Lawful owner - Order to evict - Notices issued on Respondents -Vacant possession - Admissions

The Respondents were absent and unrepresented though duly noticed. This is an appeal against the judgment of the High Court. Supreme Court granted leave to Appeal on two questions of law.

Plaintiff - Appellant filed action against the Defendants - Respondent -Respondent in the District Court for declaration of title and ejectment of the Respondents from the land in dispute. After trial the District Court granted relief as per the Amended plaint (prayer" a") that Plaintiff is the owner of the property in dispute, but did not make an order for ejectment. Being aggrieved by the judgment the Plaintiff-Appellant-Appellant appealed to the High Court, but the High Court only affirmed the judgment of the District Court. The courts below take the view that Appellant has failed to prove unlawful occupation of Defendants.

HELD:

1. The above facts demonstrate that the 1st and the 2nd Defendant -Respondents are in possession of the property in suit and that their possession is unlawful. Therefore it appears that there was clear evidence before the trial court to decide that the 1 * and 2nd Defendant-Respondents

were in unlawful occupation of the property in suit. Therefore both courts below were wrong when they decided that the Plaintiff - Appellant had failed to prove that the 1st and the 2nd Defendant - Respondents were in unlawful occupation of the property in suit. The evidence led at the trial has clearly established that the 1st and 2nd Defendant - Respondents were in unlawful occupation of the property in suit. The learned District Judge, in her judgment declared that the Plaintiff - Appellant is the lawful owner of the property in suit. If the Plaintiff - Appellant was declared the owner of the property in suit by court and the Defendant - Respondents are in unlawful occupation of the property in suit, an order to eject the Defendant - Respondents and all those holding under them will have to be issued by court.

APPEAL from the judgment of the High Court of Civil Appeal.

Case referred to:-

1. Pathirana vs. Jayasundera 58 NLR 169 at page 172.

Geoffrey Alagaratnam with Lueie Ganeshathasan for the Plaintiff-Appellant-Appellant No appearance for the Defendant - Respondent - Respondents

Cur.adv.vult

January 17, 2017

SISIRA J DE ABREW J.

Notices on the 1st and the 2nd Defendant-Respondent-Respondents (hereinafter referred to as the 1st and the 2nd Defendant-Respondents) have been sent on several occasions by the Registrar of the Supreme Court but they have failed to respond to the notices. Hence the argument commenced without their participation. Learned President's Counsel for the Plaintiff-Appellant-Appellant made submission in support of his case.

This is an appeal filed by the Plaintiff-Appellant-Appellant (hereinafter referred to as the Plaintiff-Appellant) against the judgment of the High Court of Civil Appeal hereinafter referred to as the High Court). This court by its order dated 4.5.2016, granted leave to appeal on questions of law set out in paragraph 24(a) and 24(b) of the petition dated 8,12.2014 which are set out below.

1. Did the learned High Court judges err in law in holding that the Appellant is not entitled to relief (b) of the Amended Plaint to obtain vacant and peaceful possession of the subject land especially considering the pleadings, admissions of parties and the order of the learned District Judge?

2. Did the learned High C

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