WIMALA HERATH (DECEASED) SARATHCHANDRA RAJAPAKSHA AND OTHERS v. KAMALAWATHIE AND ANOTHER

WIMALA HERATH (DECEASED)
SARATHCHANDRA RAJAPAKSHA AND OTHERS
v. KAMALAWATHIE AND ANOTHER

SUPREME COURT
MARSOOF, PC., J.
IMAM, J. AND
WANASUNDERA, PC., J.
S. C. APPEAL NO. 119/2010
NCP/HCCA/ARP/622/2009
D.C. POLONNARUWA NO. 5414/L
NOVEMBER 7, 2012

Land Development Ordinance, No. 19 of 1935 - Permit holder - Any person to whom a permit has been issued for the occupation of State Land under Chapter 300.

The Plaintiff - respondent - Appellant, Wimala Herath (Plaintiff) fled action in the District Court of Polonnaruwa seeking a declaration that she is the owner of the lands described in the two Schedules and to the plaint in terms of the permit issued under the Land Development ordinance and further sought to eject the Defendant - Appellant - respondents from the land in Schedule , which is in extent of 30 perches and which is situated within the boundaries of the land in extent of 2A, 1r, 26P. referred to is Schedule .

At the conclusion of the trial in the District Court, the District Judge held inter alia that the Plaintiff was the lawful owner of the lands in both Schedules to the plaint and that the other permits issued to any other person in respect of the said lands are null and void and the Defendants should be ejected from the said land. The Defendants appealed to the Civil Appellate High Court against the judgment of the District Court.

The Civil High Court of Appeal set aside the judgment of the District Court and dismissed the plaint. This appeal is against the judgment of the Civil Appellate High Court.

Held:

(1) There is no provision in the Land Development ordinance to expunge a portion out of the land already given on a permit and grant a separate permit for the expunged portion, with or without the consent of the first permit holder.

(2) It is only after cancellation of the first permit on lawful grounds, the land could be divided and separate permits could be issued for the divided portions.

APPEAL from an order of the Civil Appellate High Court of the north Central Province holden at Anuradhapura.

Case referred to:

(1) Seenithambi V. Ahamadulebbe - 74 NLR 222

Uditha Egalahewa P.C., with Gihan Galabadage for Plaintiff - Respondent - Appellants

W. Dayarathna P.C., with Shiroma Peiris and Nadeeka K. Arachchi for 2nd Defendant - Appellant - Respondent.

Cur.adv.vult

February 05, 2013

WANASUNDERA, J.

The Plaintiff - respondent-Appellant Wimala Herath fled action on 16th October 1991 in the District Court of Polonnaruwa in case no. 5414/L seeking a declaration that she is the owner of the lands described in the two schedules and to the plaint under the Permit no. 156 dated 11.8.1987 issued under the Land Development ordinance and further sought to eject the Defendant-Appellant-Respondents from the land in schedule" " (the 2nd schedule). Schedule to the plaint related to an allotment on land of an extent of 2A. IR, 26P and Schedule referred to a land smaller in extent.

The salient point of fact to be noted in this case is that the 30 perch block of land referred to in Schedule is within the boundaries of the 2A. 1R, 26P. block of land referred to in Schedule . In other words land in the 2nd Schedule is part and parcel of land in the 1st Schedule . The 30P parcel of land is carved out of the 2A 1R 26P. block of a bigger land bordering the main road named "wickremasinghe Road".

The Defendant-Appellant-respondents' position in the District Court in the answer dated 9th march 1995 was that the 1st Defendant - Appellant - respondent was the holder of a permit for the 30 perch block of land under the Land Development ordinance permit no. 156A. ie. the land described in Schedule to the plaint which is the 2nd Schedule. Furthermore the Defendant-Appellant - Respondents moved for compensation for improvements done on the land.

At the end of the trial before the Distri

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