IN THE DISTRICT COURT OF BALAPITIYA
Alan John Stone of 4 ?????????????????,
KETTERING, NORTHAMPTONSHIRE,
NN15 ???, United Kingdom, and presently
?????? Guest House, Dharga Town,
Aluthgama. OR No ????? Hemantha
Ranaweru mawatha, Pokuna road,
Malamulla west, Panadura.
PLAINTIFF
Case No: Versus 01. Mahaliyana Saman Priyanka Mendis Wijesekara.
02. Malaweera Arachohige Chathurika Lakmali,
Both of Udumulla Road, Egodaduwa,
Kosgoda.
DEFENDANTS
On this day of October / November 2009.
The plaint of the plaintiff above named appearing by Mrs Ramyani Kumarasiri Wijenarayana, Attorney-at- Law, states as followes:-
01. The defendants above named, appearing in the caption above, reside within the juristiction of this Court, while the cause of action relevant to the land described hereinafter in para 02 is situated within the juristiction of this Court and the cause of action too has arisen within the juristicion of this Court.
02. All the soil together with everything standing thereon of an allotment of land marked lot No. 01 of PUNCHIMALAKAMDA, situated at Kosgoda in Bentota Walallavita Korale, in the District of Galle, Southern Province and which said Lot 01 is bounded on the North by a portion of the same land claimed by A. A. Perera Samarawickrema, East by Kumbura claimed by Andiris Perera Rajakaruna and A. A. de Zoysa, South by Lot No 2A, and on the West by Maha Govipala and containing in extent Two Acres, 3 Roods and Thirty One decimal Four Perches (A2- R3- P31.4) depicted in Survey Plan No 69 dated 11-12-1966, made by Mr W. A. William Silva Licensed Surveyor, filed in Case No P 66 of the District Court of Balapitiya is the subject matter in this case.
03. The plaintiff states that he is a Citizen of the United Kingdom.
04. The plaintiff states that the plaintiff who made a visit to Sri Lanka as a tourist became very attracted to the fascination of Sri Lanka, its beaches, climatic conditions and especially to its natural beauty, and that thereafter the plaintiff had made several visits to Sri Lanka so as to spend his holidays in Sri Lanka, and states in all his visits to Sri Lanka he had spent his holidays in the Kosgoda area.
05. The plaintiff states that whilst spending holidays in the Kosgoda area in Sri Lanka, he had met a couple, husband and lawful wife, and had come to know about them.
06. The plaintiff states that after the acquaintance with the defendants, especially the first defendant, who helped the plaintiff very much with dedication and with much interests in all his visits to Sri Lanka, and particularly in getting vehicles at reasonable rates for his tours and helped him as a tour guide too, and had helped in getting accomodations at reasonable rates and also had helped in the matters of purchasing goods at reasonable rates.
07. Due to these reasons the plaintiff had become well aquainted with the defendants and had become an intimate of the defendants and had established a freindship with the defendants, and had started a close association with the defendants with trust and convidence.
08. The plaintiff who had visited Sri Lanka as a tourist many a times to spend his holidays, and who was highly attracted by its facination, especialy Bentota Kosgoda area, states that he got an idea and intention to spend the rest of his life or his evening time in his life in Sri lanka, and as such he got an idea of purchasing a land in Kosgoda area for the purpose of erecting a Holiday Resort thereon and to stay in Sri lanka spending his evening of his life.
09. The plaintiff states that he informed the defendants being his most reliable friends in Sri Lanka, about his intention of purchasing a piece of land and the construction of a Holiday Resort in Sri Lanka.
10. The plaintiff states that he bought this matter to the notice of his friends in Sri Lanka and had requested them to fetch a land in Kosgoda area suitable for the erection of a Holiday Resort.
11. And when this matter was bought to the notice of the defendants and requested them to find a good land for the construction of a Holiday Resort, the defendants had come forward very eagerly to fetch for a land in Kosgoda area.
12. The plaintiff states that out of the many land shown by the defendants, the plaintiff had noticed that the most suitable land for a Holiday Resort, is the land more particularly described in para 02 hereof, and thus the plaintiff had decided to purchase the said land, and that he had informed this matter to his most reliablefriends the two defendants.
13. The plaintiff states that when it was informed to the two defendants, they voluntarily had come forward to do this matter on behalf of the plaintiff, such as purchasing the land in favour of the plaintiff at a reasonable cost or price after discussion with the land owner, getting the Deed attested by a Notary after making a selection and for searches of document and also to attend all other connected matters relating to the same and also to attend to the matters of erection of a Holiday Resort thereon too and also to do all connected matters on behalf of the plaintiff after buying the land.
14. The plaintiff states that as he is a foreigner, having not aware or no knowledge about the land prices in SriLanka, and also due to the fact that the defendants being the residents of Kosgoda, and also as the plaintiff had understood that the defendents have enough knowledge regarding the land prices in Kosgoda area, and also that the plaintiff had relied upon the defendents that the defendents would act in such a way of protecting the interests of the plaintiff and that the defendants would do the purchase at a reasonable price, reliably and dedicatedly on behalf of the plaintiff, and as such plaintiff had authorised and empowered the most reliable his two friends the defendants above named in this case to purchase a block of land in the name of the plaintiff.
15. The plaintiff says that the defendants had informed the plaintiff that the defendants had spoken to Wijemuni Ranjan Premaneth de Zoysa the owner of the said land, being the subject matter in this case, and the owner had agreed with the defendants to sell and dispose the said land -- at or a price of Rupees Six Million Seven Hundred Thousand, (Rs 6,700,000/-)
16. The plaintiff states that the plaintiff agreed to purchase the said land at the said cost of Rupees Six Million Seven Hundred Thousand, (Rs 6,700,000/-)
17. The plaintiff states that he had already given instructions to his most reliable two friends that the said land has to be purchased in the plaintiffs name and that the Deed too has to be written in the name of the said plaintiff.
18. The plaintiff states that the defendants had informed the plaintiff that they had selected one Sampath Thushara Wimalaraine a Notory Public to write and attest the Deed for purchasing the said land, and also that the land is to be bought in favour of the plaintiff, and as such, when purchasing the land the attesting Deed has to be written in the name of the plaintiff and that the defendants had advised the Notory selected by them, to act accordingly.
19. The plaintiff states that on 04-04-2008 the plaintiff purchased the said land from the said Wijemuni Ranjan Premaneth de Zoysa on payment of the sum of Rupees Six Million Seven Hundred Thousand, (Rs 6,700,000/-) by the plaintiff and that Deed No. 56 dated 04-04-2008 which was attested by the said notary named Sampath Thushara Wimalaraine who had been selected by the said defendants.
20. The plaintiff states that at the request of the said defendants, the plaintiff paid a sum of Rupees Seven Hundred and Seventy Five Thousand (Rs. 775,000) to Sampath Thushara Wimalaraine Notary Public who attested the said Deed No. 56 on 04-04-2008 being notarial fees.
21. The plaintiff states that the plaintiff came to know or could see only at the time of attesting the said deed No. 56 dated 04-04-2008 that it had been prepared in Sinhala, a language which is not known to the plaintiff for purchasing the said land.
22. The plaintiff states that he had no suspicion whatsoever regarding the preparation of the said Deed No. 56 in Sinhala as the plaintiff relied upon the defendants that the defendants would purchase the said land in the plaintiffs name as per instructions given to the defendants by the plaintiff as refered to above, and also that the defendants would protect the plaintiffs rights and interests or that the defendants would not get the rights of plaintiff fraudulently.
23. The plaintiff states that accordingly the plaintiff had utmost faith on the defendants that the property, the subject matter in this case, and that it had been purchased in the plaintiffs name in Deed No. 56 dated 04-04-2008.
24. The plaintiff states that after attesting the said Deed No. 56 dated 04-04-2008. The building required for the Holiday Resort was erected on the said land, and that even the supervision of the construction and protection too done by the defendants on their own accord, and that all the expenses for the construction were and every other thing, were given to the defendants by the plaintiff.
25. The plaintiff states that he has spent Rupees Six Million (Rs. 6,000,000/-) for the construction of the building for the Holiday Resort.
26. The plaintiff states when the constructional work of the ground floor of the Holiday Resort was completed suitably for occupation, the plaintiff had come there for occupation.
27. The plaintiff states that he purchased furniture, electrical items and such other goods, more particularly described in the schedule hereto; and that the said purchased goods are kept on the ground floor of theHoliday Resort (with some items being kept at the home of the 02nd defendants father)
28. The plaintiff states that by the way, the plaintiff got married a Sri Lankan lady named S. A. Manel
29. The plaintiff states that since the said marriage, the plaintiff had on or about 21st of February 2009, he accompanied the said lady named S. A. Manel to the said Holiday Resort standing on the said land.
30. The plaintiff states that when the plaintiff came to the Holiday Resort on or about 21-02-2009 both the defendants had visited the Holiday Resort and threatened the plaintiff to go away from the said land, the subject matter in this case, with the plaintiffs wife, as the said property together with everything thereon belong to the 02nd defendant.
31. The plaintiff states that the plaintiff who had become highly afraid by the said threatening had left the said place, along with his wife, on the very same day itself 21-02-2009.
32. As the said defendants had challenged the plaintiff stating that the said property belongs to the 02nd defendant, the plaintiff had taken a copy of the said Deed No. 56 dated 04-04-2008 attested by Sampath Thushara Wimalaraine Notary Public, and when he had got said Deed checked, the plaintiff has come to know that the owner of the land described thereof is the 02nd defendant and that the 02nd defendants name has been inserted as the owner of the said property. A certified copy of the said Deed No. 56 dated 04-04-2008 is produced with the plaint marked P1.
33. The plaintiff states that the 02nd defendants name has been inserted in the said Deed as the purchaser of the land the subject matter, in lieu of the plaintiffs name, therefore the plaintiff states that the said defendants have jointly and severely played a “trick”, by purchasing the said land in the 02nd defendants name, and that thereby have breached the trust / or faith kept by the plaintiff on the said defendants.
34. The plaintiff further declares that the 02nd defendant was holding trust / or faith, in respect of the land and together with everything thereon referred to in para 02 above on behalf of the plaintiff, and accordingly the Deed No. 56 dated 04-04-2008 attested by Sampath Thushara Wimalaraine Notary Public, is a Deed subject to constructive trust / or constructive faith.
35. The plaintiff further declares that the ownership / or the possession and the truthful title, of the said land the subject matter, was in the hands of the plaintiff, since the date of arising the cause of action up to on or about 21-02-2009.
36. Under the above circumstances, the plaintiff further states that the 02nd defendant is only a namesake owner of the said land, the subject matter.
37. The plaintiff declares that due to the act referred to in para 30 above, the plaintiff was compelled to vacate the land and premises, the subject matter, and thereby the plaintiff had to spend house rent of Rupees ThirtyThousand (Rs. 30,000/-) a month and also a damage in the sum of Rupees Ten Thousand (Rs. 10,000) was caused to the plaintiff, as he was deprived of getting a monthly income from the Cinnamon plantation standing on the said land, the subject matter.
01st Cause of Action
38. A cause of action has thus accrued to the plaintiff to sue the defendants.-
a.) To get a declaration that Deed No. 56 dated 04-04-2008 attested by Sampath Thushara Wimalaraine Notary Public is a deed subject to constructive trust / or constructive faith.
b.) To have the defendants and others claiming under them ejected there from the land the subject matter, and to get the peaceful vacant possession thereof, and
c.) to recover damages from the defendants as described in para 37 above.
39. The plaintiff repeats all the averments as referred to above.
40. The plaintiff states that all the items described in the schedule hereunder were purchased by the plaintiff at a cost of Rupees One Million Five Hundred Thousand, (Rs. 1,500,000/-) and therefore the plaintiff is lawfully entitled to the said items.
41. The plaintiff declares that all such items described in the schedule hereto are lying at the Holiday Resort on the said land, the subject matter. (with some items being kept at the home of the 02nd defendants father)
42. The defendants acting jointly and severely on or about 21-02-2009, have stated that the items described in the schedule hereunder too are entitled to the defendants.
43. The plaintiff states that due to their acts as referred to in para 42 above, the defendants have fraudulently breached the trust, which has been kept by the plaintiff on the said defendants.
44. Accordingly, the plaintiff states that all the items described in the schedule hereunder, are now under the custody of the said defendants, and that they are keeping the said items on behalf of the plaintiff as a trust.
02nd Cause of Action
45. A cause of action has thus accrued to the plaintiff to institute legal proceedings against the said defendants, in order to get a declaration that the said items described in the schedule hereunder, are with the defendants on behalf of the plaintiff as a constructive trust
46. The plaintiff repeats that all the averments in the said para.
47. The plaintiff states that the 01st and 02nd defendants, jointly and severely, have caused the execution of Deed No. 56 dated 04-04-2008 attested by Sampath Thushara Wimalaraine Notary Public, and have got the land the subject matter, written unlawfully in the name of the 02nd defendant, and thereby the said two defendants, or 01st and 02nd defendants have gained an unreasonable or unjust enrichment, by the sum of Rupees Fourteen Million Nine hundred and Seventy Five Thousand (Rs. 14,975,000/-) (purchase price of the said land Rs. 6,700,000/-, Notarial fees and Deed expenses Rs. 775,000/-, and the expenses for the construction of the building thereon Rs 6,000,000/- aggregating to Rs. 13.475.000/- and keeping the items described in the schedule unlawfully Rs. 1,500,000/- .
Alternative Cause of Action
48. An alternative cause of action has thus accrued to the plaintiff to file legal proceedings against the defendants jointly and severely for the recovery of the full sum of Rupees. (Rs. 13.475.000/- + Rs. 1,500,000/-) by which sum the defendants have become enriched.
49. The plaintiff values this action in the sum of Rs. 14,975,000/-.
WHEREFORE the plaintiff prays the court be pleased
A.) to declare that Deed No. 56 dated 04-04-2008 attested by Sampath Thushara Wimalaraine Notary Public. Is a Deed subject to a fidelity and / or a constructive trust in favour of the plaintiff.
B.) to order the said 02nd defendant to execute a Notarial Deed attested by a Notary transferring the rights of the land described in para 02 above, in the name of the plaintiff at the costs and expenses of the said defendants.
C.) to give an order to all men claiming under the defendants ejected from the said property and to restore the plaintiff in a peaceful vacant possession of the said property.
D.) to get all damages described in para 37 above recovered.
E.) in the event of the 02nd defendants failing to execute a Deed in favour of the plaintiff, the Registrar of the Courts be ordered to execute a Deed , transferring the rights of the said property in favour of the plaintiff.
F.) to declare that the defendants, hold the items declared in the schedule hereunder as a fidelity or constructive trust on behalf of the plaintiff.
G.) to make an order to the said defendants to handover the said items described in the Schedule referred to above, to the plaintiff.
Alternatively
H.) to grant an Order in favour of the plaintiff to recover a sum of Rupees 14,975,000/- from the defendants unjust enrichment, and
I.) for costs and for such other and further relief as to this court shall seem meet.
Signed/………………………………..........................................................................................
Attorney-at-Law for the Plaintiff.
Much of the above is easy to understand, though as a translation from Sinhala some phrases do get altered, the words “Holiday Resort” appear quite a few times and sound very grand but in fact refer to “Guest House”
