K.G. SOMAPALA ALIAS R.U. SOMAPALA VS. W. A. SUMANASIRI & OTHERS

• Jurisdiction: Sri Lanka
• Citation: 2015SCLR48C2010Y
• Date: 13 November 2015
• Case Number: 2015SCLR48C2010Y
• Court: Supreme Court (Sri Lanka)

1

K.G. SOMAPALA ALIAS R.U. SOMAPALA

VS.

W. A. SUMANASIRI & OTHERS

S.C. Appeal No. 48/2010

K.G. Somapala alias R.U. Somapala
Keselgollegoda
Ginihampitiya
Hemmathagama.

PLAINTIFF

Vs.

W. A. Sumanasiri
Udawatta,
Samapura,
Hemmathagma.

DEFENDANT

AND BETWEEN

W. A. Sumanasiri
Udawatta,
Samapura,
Hemmathagma.

DEFENDANT-APPELLANT

Vs.

2

K.G. Somapala alias R.U. Somapala
Keselgollegoda
Ginihampitiya
Hemmathagama.

PLAINTIFF-RESPONDENT

AND NOW BETWEEN

W. A. Sumanasiri
Udawatta,
Samapura,
Hemmathagma.

DEFENDANT-APPELLANT-PETITIONER

Vs.

K.G. Somapala alias R.U. Somapala
Keselgollegoda
Ginihampitiya
Hemmathagama.

PLAINTIFF-RESPONDENT-RESPONDENT

BEFORE: Priyasath Dep P.C., J.
Rohini Marasinghe J. &
Anil Gooneratne J.

COUNSEL: Manohara de Silva P.C. with Hirosha Munasinghe For the Defendant-Appellant-Petitioner

Maura Gunawansa for the Plaintiff-Respondent-Respondent

3

ARGUED ON: 20.05.2015

DECIDED ON: 13.11.2015

GOONERATNE J.

This was an action filed in the District Court of Mawanella for a declaration that the Defendant to the original action has violated the conditions of the lease agreements bearing Nos. 2597/2705 and accordingly the agreements terminated. The prayer to the plaint inter alia seeks a declaration of title to 1/2 share of the property described in the schedule to the plaint and for eviction of Defendant and damages as prayed for in the said prayer to the plaint. To state very briefly, the position of each party revolves on the construction of shop premises in the land in dispute which is admittedly owned by the Plaintiff- Respondent-Respondent. In the area specified in the plan P1, the Plaintiff takes up the position that by lease P2 (2597) Defendant had to construct a shop which

4

constructions starts below the described road level and have a concrete slab built as the roof to enable the Plaintiff to sell betal on it. Lease P2 was operative during 01.04.1998 to 30.03.2014.

The 2nd lease (P3) as stated by the Plaintiff was to operate during the period 01.04.2014 to 30.09.2031, and another shop had to be constructed during the said period on the concrete slab. This would mean construction of two shop premises, on the land in dispute. This position was vehemently denied by Defendant-Appellant-Petitioner, who argued that construction was only for one (1) shop premises and maintained that the lease agreements were in respect of land and not shop premises. Further learned counsel for the Defendant-Petitioner-Appellant argued that subject matter of the two lease agreements are land, in extent of about 10 perches and entirety of land as per the two lease agreements would entitle him for continued possession during the duration of the lease bonds up to the year 2031. Defendant-Appellant-Petitioner also state that he has incurred certain expenses in the construction of the shop premises and plead the sums due by way of a claim in reconvention in para 12 to 15 of his
answer.

5

Parties proceeded to trial in the original court on 27 issues, plaintiff having raised issue Nos. 1 - 17 and the Defendant-Appellant-Petitioner relied on issues 18 to 27. The learned trial Judge has answered Plaintiff's issues in the affirmative in favour of the Plaintiff, except issue No. 2 and had entered judgment in favour of Plaintiff-Respondent-Respondent. All Defendant's issues are answered in the negative as not proved except issue No. 24. The judgment of the learned District Judge was affirmed by the High Court by its judgment dated 09.11.2009. Learned District Judge in a very exhaustive judgment held in favour of the Plaintiff-Respondent-Respondent having considered very many factual positions, relevant to the case in hand.

On appeal the High Court affirmed the judgment of the learned District Judge. This court on 01.06.2010 granted Leave to Appeal on all questions of law set out in paras 11(a) - (i) in the petition dated 18.12.2009. The said questions reads thus:

(a) The said judgment is contrary to law and against the weight of evidence;

(b) The learned Judges of the High Court erred in holding that lease marked P3 was in respect of the construction of a separate boutique room;

(c) The learned Judges of the High Court erred in holding that the Defendant violated the terms of lease marked P2;

6

(d) The learned Judges of the High Court failed to consider that the leases marked P2 and P3 were in respect of the same land for two different periods of time;

(e) The learned Judges of the High Court failed to consider Clause 2 of leases marked P2 and P3 which specifies that the subject matter of the said leases is the land in extent of 10 perches described therein and not a shop premises.

(f) The learned Judges of the High Court failed to consider that by documents marked P2 and P3, the Plaintiff has leased the land in suit to the Defendant for a total period of 30 years and that in the circumstances, the Judgment of the District Judge preventing the Defendant from entering the second boutique room is wrongful.

(g) The learned Judges of the High Court failed to consider that the Plaintiff has acquiesced in the construction of the shop at the upper level of the main road;

(h) The learned Judges of the High Court erred in holding that the parties agreed to construct two boutique rooms;

(i) The learned Judges of the High Court failed to properly evaluate the evidence.

The judgment of the High Court focus on three main points i.e (a) whether parties agreed to construct (2) boutique rooms (b) whether the 2nd lease bond is a separate agreement to construct the 2nd boutique room and (c) whether the 2nd lease bond was signed to secure a further sum of Rs. 1,75,000/- to

7

construct the original building. Our attention has been drawn by both parties to certain items of evidence which they claim to support each other's case.

On a plain reading of lease bonds P2 & P3, (though not so legible and unclear copies are included in the brief) the P3 lease agreement does not in any way refer to P2 or does not in its simple terms give any indication that it is an extension or was entered as an ancillary agreement to P2 lease agreement. 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 1stApril 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 over 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...