HETTIARACHCHI
VS.
MARY MATHA

COURT OF APPEAL
TISSA BANDARANAYAKE,J.
WIJETUNGA, J
CA 1329/82
WITH CALA 141/82
OCTOBER 13, 1986

Rei Vindicatio action - Writ of Execution served on defendant - Land acquired by State - Is the title of the plaintiff to the land extinguished by title paramount - Can the plaintiff be placed possession?- What is pendente lite?- Civil Procedure Code-Section 224, Section 225, Section 323.

The plaintiff in the rei vindication action filed in the District Court succeeded in the Supreme court - The widow of the plaintiff on 14.01.1980 applied for a writ

of execution. On 06.03.1980 the defendant - petitioner filed objections to the writ. A few days later the land was acquired by State by Gazette dated 20.03.1980. The property was formally taken over by the Urban Development Authority (UDA). The defendant - petitioner who was enjoying the property than applied to the UDA and obtained permission to cultivate it. Permission was granted on 24.02.1981.

Thereafter the defendant-petitioner filed further objections and informed Court, that the land has been acquired by the State and that consequently the plaintiff has lost title - that the plaintiff's title now stands extinguished by title paramount and therefore the substituted plaintiff cannot now be placed in possession and that the substituted plaintiff has no status to make an application for writ. The trial Judge allowed the application for writ. In appeal,

Held:
Per Tissa Bandaranayake, J.:

"What we have here is a new situation arising from the acquisition of part of the corpus by the State. The plaintiff thus lost her right and Interest by superior title whilst litigation was still pending".

(1) Court can take judicial notice of the publication of the acquisition by the State as it relates to a question arising between the parties. This must necessarily affect the plaintiffs further interest in the action and right to execution of the decree.

(2) The plaintiff-respondent's rights have been extinguished by title paramount pendente lite.

Cases referred to:-

1. De Silva vs. Jayawardane - 43 NLR 531
2. Elisahamyvs. Punchi Banda-1911 14 NLR 113
3. Cader vs. Haidu- 23 NLR 91
4. Annie Tillekeratne vs. Coomarasingham- 28 NLR 186
5. Samara vs. Elves - 25 NLR 427
6. C. Govindari vs. K Lyer-1941-AIR Madras 126
7. Mandal vs. Nath - 1917 -AIR Cal. 728. 731
8. Karunanayake vs. C. P. de Silva - 70 NLR 398
9. Banda vs. Karohamy- 50 NLR 369
10. Amolis Appuhamy vs. De Alwis- 60 NLR 141,143,144
11. Ismail vs. Herlf - 50 NLR 112
12. Goldthorpe vs. Bain  - 1952 20 E 435
13. Fuggle vs. Gagaden- 1948 2 KB 236

APPEAL from judgment of the District Court of Colombo.

P.A.D. Samarasekera, PC with A. L. M. de Silva for defendant- petitioner. Nimal Senanayake PC with N. Mahendra for substituted plaintiff - respondent.

Cur. adv. vult.

December 5, 1986
TISSA BANDARANAYAKE, J.

The original plaintiff filed action against the three defendants for declaration of title to a land called Gorakagaha-kumbura depicted as lots B, B1 and B2 in Plan 418 marked 'x'. P8 Plan No. 594 of 31.10.80 is a superimposition of Plan 'X'.

The 1st defendant filed answer saying he was not claming title but that he was a lessee under the 2nd defendant and the 3rd defendant After trial the plaintiffs action was dismissed by the District Judge. In appeal the Supreme Court reversed that finding and entered judgment for the plaintiff with damages and costs. The Supreme Court judgment was delivered on 03rd March, 1976.

The plaintiff died thereafter and his widow was substituted. She is the present substituted-plaintiff-respondent. On 14.01.80 she applied to the District
Court for writ of execution The 1st defendant-petitioner was served with notice. On 6.3.80 the 1st defendant-petitioner filed objections to the grant of writ of execution. A few days thereafter this land was acquired by Government. The publication of the acquisition is