CA Sumanawathie Karunaratne and Others vs Ariyaratne (Somawansa J) 5 7
Having prayed for the aforesaid relief can he also set up a claim inrespect of portion of the land owned by the defendant – respondent depictedas lot 06 in plan no. 1148 in respect of which there was no claim whatsoeverin the pleadings of the plaintiff – petitioner. In fact grievance of the plaintiff-petitioner was that the defendant – respondent had encroached upon hisland depicted as lot 5C in extent 7.5 perches and prayed for ejectment ofthe defendant – respondent therefrom, but the superimposition establishedotherwise that the defendant-respondent had not encroached on the plaintiff-petitioner’s land but it is the plaintiff-petitioner who had encroached upon aportion of the land owned by the defendant-respondent. It appears thatnow in addition to lot 5C in extent 7.5 perches the plaintiff respondent isseeking to claim title to 1.24 perches and of the Land owned by thedefendant respondent by means of raising the aforesaid issues 2, 3,4, 5,

The Second schedule to the plaint reads as follows :
5 S
Sri Lanka La iv Reports
(2005) 7 Sri L. R.
7,8,10,11 and 12 which claim is a new cause of action not pleaded in theplaint. In other words, having come to Court on the basis that the defendant-respondent has encroached on his land the plaintiff-petitioner now claimsthat he has encroached on the defendant-respondent's land and thus isattempting to set up a claim in respect of portions of the defendant -respondent’s land which if allowed I would say would cause materialprejudice to the defendant- respondent.
For the above reasons, I am of the view that the plaintiff -petitionercannot succeed in his application and accordingly this application willstand dismissed with costs fixed at Rs.10,000.
MS. EKANAYAKE, J — I agree.
Application dismissed.