SL SC | Where there is a variation between description and extent in a deed, description will prevail

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Prasanna Jayawardena, L.T.B. Dehideniya and S. Thurairaja, JJ., dismissed an appeal filed on being aggrieved by the Judgment of the High Court which had allowed the appeal of the Defendant-Respondents.

The Plaintiff-Appellant had instituted action in the District Court of Colombo against the Defendant-Respondents stating that he was entitled to the property described in the first schedule of the plaint, stating that the first Defendant-Respondent who was his brother was the owner of the property which was just adjacent to the property owned by him and the first Defendant-Respondent had forcefully and illegally annexed 1.95 perches of his land and gave it to the second Defendant-Respondent. The allotment of the land described that the land belonged to the mother of the Plaintiff-Appellant and the first Defendant-Respondent who by deed had gifted the portion of land bearing assessment No. 104 to the 1st Defendant-Respondent and land bearing assessment No. 111,113 and 115 to the Plaintiff-Appellant. After the first Defendant-Respondent did not honor his promise of returning the land back as directed by the Mediation Board the Plaintiff-Appellant had approached the district court which had granted the Plaintiff-Appellant all the relief’s prayed for in the plaint. Being aggrieved by which the Defendant-Respondents had appealed in the High court which had allowed their appeal stating that when there is a variation between description and extent given in a Deed, in law, the description must prevail. Thus the instant appeal was filed by the Plaintiff-Appellant. The decisive factor regarding the issue was considered to be the old wall which separated the two properties and the Plaintiff-Appellant contends that the first Defendant-Respondent had reconstructed the wall after it was demolished during the communal riots of 1983 and in doing so he encroached 1.95 perches of the Plaintiff-Appellant’s property but there was no evidence to support his contention.

The Court while dismissing the appeal answered the four questions of law in negative and explained that “No statement made by any person before a Mediation Board shall be admissible in evidence in any civil or criminal proceedings” and the District Court had come to his conclusion by relying on statements made at the Mediation Board so High Court did not err in law substituting its findings in place of the factual findings of the District Court further there was no proof of encroachment and no evidence to prove his claim. [B. Premarajah Jayawardena v. B. Upali Dayananda Janapriya Jayawardena, SC Appeal No: 126 of 2016, decided on 17-12-2019]

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