36Sri Lanka Law Reports(2005) J Sri L. R.
Notwithstanding the above, the behaviour of the defendant with regardto the surveying of the land, also has brought in a situation where thedefendant has portrayed himself as a person who cannot be believed.According to the plaintiff the land in question was surveyed by SurveyorT.S.S. Fernando on 22.03.1981. On this issue the defendant took up theposition that he was not aware of such a surveying being carried out as heand his family were in Kataragama at the point of time of the survey. Thedefendant contended that he became aware of.the surveying only after theinstant case was instituted in 1987, approximately after six years of thesurveying was carried out. When the defendant gave evidence on29.11.1990, (at pg. 119) he has stated as follows :

Considering the evidence given by the defendant, it appears that eitherthe defendant was not aware that the land he was in occupation wassurveyed until 1987 or that although he was aware that he did not think itis necessary to make inquiries on such surveying. Both these positionsappear to question the credibility of the defendant. It is unbelievable to beheard to say that in a village of this country one would not be aware of asurvey that was carried out in the absence of the owner or the licensee fora period of 6 years. Further the behaviour of the defendant in not takingany steps when he became aware of the surveying in my view would beinexplicable.
On a consideration of the totality of the aforementioned circumstancesand evidence and on a balance of probability I am inclined to accept the

However, on 19.07.1990, he had taken a different stance and stated asfollows (pg. 109)
SCReginald Fernando37
i/s Pabilinahamy and' others (substituted)Bandaranayake, J)
position taken by the plaintiff that the defendant came into the land inquestion with the leave and license of the plaintiff.
The defendant further took up to position that he has prescribed to theproperty. The legal position which governs prescription for immovableproperty is contained in Section 3 of Ordinance, No. 22 of 1871. In fact inFernandov. Wijesooriya.i'), Canekeratne, J., stated that,
“The whole law of prescription is to be found in Ordinance, No. 22 of1871”
Section 3 of Ordinance, No. 22 of 1871, as amended by Ordinance, No.2 of 1889 states as follows :
“Proof of the undisturbed and uninterrupted possession by a defendantin any action, or by those under whom he claims of lands or immovableproperty, by a title adverse to or independent of that of the claimant orplaintiff in such action (that is to say, a possession unaccompanied bypayment of rent or produce, or performance of service or duty, or by anyother act by the possessor from which an acknowledgment of a rightexisting in another person would be faulty and naturally be inferred) for tenyears previous to the bringing of such action, shall entitle the defendant toa decree in his favour with costs ..
Although the defendant is claiming prescriptive rights on the property inquestion, he has not demonstrated as to the date when he began hisadverse possession and how such adverse possession commenced.Without adducing any evidence as to the date of commencement of adversepossession, the defendant will not be in a position to make a claim onprescription to the property in question. Accordingly, the defendant hasnot established the requirement of uninterrupted and undisturbedpossession which are explicitly adverted to in Section 3 of the PrescriptionOrdinance. In such circumstances it is quite apparent that the petitionercannot base any claim on prescription.
On a consideration of the totality of the evidence and the circumstancesof this case, it is clear that the learned District Judge has correctly analysedthe evidence given by the plaintiff, defendant as well as the witnessessummoned by the plaintiff and has carefully considered the submissions
3SSri Lanka Law Reports(2005) ! Sri L. R.
made on defendant’s entry to the property in question on leave and licenseof the plaintiff as well as the defendant’s claim on prescription. Therefore itwould not be correct for the Court of Appeal to come to the conclusionwhere it is stated by the learned Judge that,
‘The main ground on which the learned District Judge has held infavour of the plaintiff is that the defendant failed to reply notice to quitdated 06.01.1987 (P3) sent by the Attorney-at-Law to the defendant."
The judgment of the Court of Appeal further stated that,
“.. .the mere fact that the defendant failed to reply P3 does not entitlethe plaintiff to judgment prayed for.”
It is to be noted that the position taken up by the Court of Appeal is notcorrect as on an examination of the judgment of the District Court it isextremely clear that the failure to reply the notice to quit was only one of •the aspects taken into consideration by the learned District Judge.
There is one other aspect, which I wish to pursue before I depart fromthis judgment. Learned President’s Counsel for the plaintiff submitted thatin a case where action has been instituted on the basis of leave andlicense and/or landlord and tenant and if the plaintiff proves that he is thelicensor and/or the landlord and that the defendant is his licensee and/ortenant, the plaintiff is entitled to ejectment notwithstanding the fact that heis not the owner of the premises.
A long line of cases had considered this matter and the ruling by themajority decision in de Alwis v Perera(2) has been consistently followed insubsequent decisions. Discussing the question of lack of any ius in re’inthe landlord, Prof. G. L. Peiris (Landlord and Tenant, Lake House Publisherspg. 215-223) states that 'no real right in the premises need be claimed bythe landlord’.
In de Alwisv Perera (Supra) the premises belonged to the plaintiff’s wifeand it was let to the defendant on the basis of a monthly tenancy by herhusband. Accordingly the principal parties to the contract were the plaintiffas landlord and the defendant as tenant. It is to be noted that as far as the
SCReginald Fernando39
vs Pabilinahamy and others (substituted)(Bandaranayake, J)
■ tenancy and the tenant was concerned, all his dealings were with theplaintiff.
Gratiaen, J. referring to the plaintiff stated that,
“He was the original landlord under the contract of tenancy, and hisright under the common law to claim ejectment has been clearlyestablished. The fact that he was not the owner of the premises isirrelevant, because his rights are founded on contract and not onownership.”
In the circumstances, the plaintiff as the licensor and/or the landlord isentitled to eject the defendant who is his licensee from the premises inquestion..
Considering the totality of the evidence and circumstances before thisCourt the main question in issue is answered in the affirmative and readsas follows:
The Court of Appeal erred in holding that the District Court hasentered judgment in favour of the plaintiff in the absence ofsufficient evidence to prove that he was either the owner or thatthe defendant was his licensee.”
For the aforementioned reasons, the appeal is allowed, the judgment ofthe Court of Appeal dated 06.05.1997 is set aside and the judgment of theDistrict Court of Negombo dated 01.08.1991 is affirmed.'
In all the circumstances of this case, there will be no costs.
J. A. N. DE SILVA J. – I agree.JAYASINGHE J.-1 agree.
Appeal allowed.