SUMANASIRI
VS.
K.G SOMAPALA ALIAS R.U. SOMAPALA

SUPREME COURT
PRIYASATH DEP P.C.J.
ROHINI MARASINGHE. J.
ANIL GOONERATNE. J
S.C. APPEAL No. 48/2010
May 20, 2015

Declaration of title and eviction/L- Condition of the leases- Declaration of title-Eviction- Shop premises- Continued possession- Section 91 and 92 of Evidence Ordinance- relevancy of leave periods?

Action was filed in the District Court of Mawanella for a declaration of title and eviction of the Defendant It is also the case of the plaintiff that the Defendant has violated the conditions of the lease agreements bearing Nos. 2597/2705.

The position of each party revolves on the question of construction of shop premises in the land in dispute, admittedly owned by plaintiff Respondent-Respondent Plaintiffs position is that as per lease-2597, Defendant had to construct a shop which constructions starts below the road level and a concrete slab built as the roof to enable Plaintiff to sell betel on it The second lease P3 (2705) was to construct another shop on the concrete slab. It would mean construction of two shop premises This position was denied by the Defendant-Appellant who took up the position that construction was only for one shop premises and maintained that the lease agreement was for land and not shops Defendant also stated that the two lease agreements entitle him for continued possession of the land in dispute up to year 2031. Defendant has also made a claim in reconvention Learned District judge entered Judgment in favour of the Plaintiff and the High Court affirmed the Judgment and dismissed Defendant's appeal.

Held:

1. What is noteworthy of both contracts as highlighted by both original courts is that the two agreements refer to separate and distinct periods for due compliance of the agreements P2 operates during 1st April 1998 to 30th March 2014. The Second lease agreement (P3)

was to operate during 01.04.2014 to 30.09.2031 Clause (5) of (P2) specifically state a construction of a boutique room In the lease bond P3 which is due to operate as from 01.04.2014 to 30.09.2031, it's clause (5) refer to a construction of a boutique room Each lease agreement operates for over 15 years. If one were to bring both lease periods consecutively it's a long lease period of 30 years, provided its terms and conditions are fulfilled. Within a period of 30 years it is hardly unimaginable to arrive at a conclusion that it was only to construct one boutique room. which was provided by the lease agreements. The evidence led at the trial and on such evidence what is suggested/analysed by both judges of the District Court and the High Court as regards the construction of two boutique rooms cannot in any way offend the rule contained in Section 92 of the Evidence Ordinance, but such evidence assists both Courts to explain and demonstrate the necessity to have two boutique rooms within available space, as contemplated by the lease agreements.

2. It is clear that clause 5 referred to above in P2 and P3 contemplate two boutique rooms Issue No. 06 specifically stales and refers to the boutique rooms and its roof would be a concrete slab Appellant has also admitted this fact in evidence, as regards the concrete slab. The views of the learned District judge and the High Court judge cannot be faulted on an important item of evidence that transpired at the trial that the 2nd boutique room was to be built on the concrete slab. Trial judge's explanation that it was the reason to have a flight of steps is plausible Evidence led on this aspect is a question of fact and this court will not unnecessarily interfere on questions of fact Issue No. 7 has been answered by the learned District judge in the affirmative in favour of Plaintiff- Respondent-Respondent. The said issue relates to construction of another boutique room on the concrete slab.

3 Evidence led and its terms referred to in each lease