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Present ; Pereira J.IMS.
MARIA et al. v, FERNANDO et al.
259—G. B. Negombo, 20,382.
Action for definition of boundaries—when it lies.
An action for defining and settling boundaries was provided lorby tbe Koman-Dutch law whenever the boundaries of lands belong-ing to different owners bad become uncertain, whether accidentallyor through the act of the owners or some third person. The onusof proving the essential facts in such an action was on the plaintiff, -but the action was not allowed to one co-owner against anotherwhen a boundary of the common property and one of a propertybelonging exclusively, to one of the co-owners had become" mixed up.” v
Under our procedure an action for the definition of boundarieswould be a proceeding in the nature of an application for reliefreferred to in section 6 of the Civil Procedure Code, the factjustifying the application being that the boundary between thelands of the parties has become uncertain. No specific “ cause ofaction," as the term is defined in section 5, is necessary.
ELE first plaintiff (wife of second plaintiff) was the owner of theland called Ambagahawatta. She averred in her plaint—
The first and second defendants t are the owners of theland to the north of that of the ■ plaintiffs, and all thedefendants jointly with the plaintiffs are the owners ofthe land to the west of that of the plaintiffs; theboundary limits on the north and west of the plaintiffs'land having been from time to time shifted by thesedefendants, there is now no proper fence or landmarkdefining the said boundaries.
The defendants, though often thereto requested, do notconsent to have the said boundaries defined and to havea proper fence erected.
The plaintiff prayed: —
(a) That – a commissioner be appointed to define the properboundaries between the plaintiffs' land and those to thenorth and west of their land, &c.
The defendants, first to third, merely denied' that they objectedto the erection of a fence along plaintiffs’ boundaries ; and fourthdefendant alleged that there was a good live .fence between hisland and that of the plaintiffs.
2—J. N. B 18828 (7/52)
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The following issues were framed:—
Js there a cause of action disclosed in the plaint?
Has plaintiff requested defendants to have the boundaries* defined?
The' Commissioner (J. R. Walters, Esq.) made the following
Some overt act of obstruction must, in my opinion, be alleged .to justify such an action as this, viz., that plaintiff hassought to define his boundaries and has be&n prevented.
The plaintiff appealed.
. 4. L. E. Aaerappq, for the plaintiffs; appellants^—The action waswrongly dismissed. An action for definition 'of boundaries lies underthe Roman-Dutch law when the boundaries between the lands ofneighbours become uncertain and doubtful owing to any' cause.(Voet, bk. 10, tit. I.) The mere fact that defendants say that the"boundary is defined will not . justify a dismissal of the action withouttrial of the issue raised by the plaintiffs as to the doubtful characterof the boundary between the two lpnds.
De Zoysd, for the first and third defendants, respondents,—Evenif an action for definition of boundaries would lie in a case where theboundaries • were not defined and were not ascertainable, it was not.open to the plaintiffs to bring such an action, as there were oldfences in existence which marks the limit between the plaintiffs'land and that of the defendants.
Koch, for the fourth defendant.
. Cut. adv. vult.
July 25,* 1913. Pereira J.—
This is intended to be an action for the definition of boundaries.It is a very common form of action under the Roman-Dutch law,and it has been recognized by this Court as obtaining in Ceylon.The plaint in the present case, however, has been so clumsily drawnas very nearly to defeat the object of the action, and the whole casehas been proceeded with in Court below under some miscon-ception as to the exact scope of the action. An action for definingand settling boundaries (actio finium regimdoTum) is provided for bythe* Roman-Dutch law whenever the boundaries of lands belongingto different owners have become uncertain, whether accidentally orthrough the act of the owners or some third person. (See Voet10, lr 1.) The onus of proving the essential facts in such an actionis on the plaintiff (Voet 10, 1, 3). As stated by Voet, the actionis “ not allowed to one co-owner against another when a boundaryof the common property and one of a property belonging exclusivelyto one of the co-owners have become mixed, up " (Voet 10, 1, 6).
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In view of this last proposition the plaintiff’s claim to a definitionof his western boundary cannot be maintained, and the dismissal'of the action with costs as against the third and fourth defendantswill stand affirmed. 'As regards the case against the first andsecond defendants, I think that the averment^ in the plaint aresufficient to show that the boundary between the plaintiffs’ landand that of the first and second defendants has become uncertain,and that, therefore, the averments in the plaint are sufficient toentitle the plaintiffs to maintain this action to have the boundarydefined and settled by the Court. A “ cause of action ” in thestrict sense in which that expression is used in the Civil ProcedureCode is not absolutely necessary in a case like this. The presentcase is rather in the nature of' an application, warranted by theBoman-Dutch law, for relief under section 6 of the Civil ProcedureCode, the fact justifying the application being that the boundarybetween the land of the plaintiff on the one side and that of the firstand second defendants on the other has become uncertain. The firstissue framed is, therefore, unnecessary, and I strike it out. I setaside the order appealed from, and remit the case for the trial of thesecond issue and such other issues as the parties may agree to, orthe Court may deem it necessary to frame, in view of the scope ofthe action as 'explained above. All costs will be oosts in the cause.
Appeal dismissed as against third and fourth defendants.
Case sent back as against first and second defendants.