009-SLLR-SLLR-1987-2-ALFRED-FERNANDO-v.-JULIAN-FERNANDO.pdf
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ALFRED FERNANDO
v.JULIAN FERNANDO
COURT OF APPEAL.
G. P. S. DE SILVA, J. (President, C/A) AND ABEYWIRA, J.
A. No. 53/81.
C. NEGOMBO L 1972.
JANUARY 16, 19, 23 AND 26, 1987.
Definition of boundaries-Actio finium regundorum-Requisites of an action fordefinition of boundaries-Suit for vindicating title to encroachment in the guise of suit fordefinition of boundaries-Can a co-owner sue his neighbour also a co-owner of theneighbouring land for definition of boundaries?-Burden of proof.
The plaintiff sued his neighbour the defendant for a definition of boundaries pleadingthat the boundary between the two lands had become obliterated and undefined. Theplaintiff claimed that the boundary which stood earlier on the East of his land is nowdefaced but shown in a plan of 1879 superimposed on plan No. 163 of 1973 preparedby surveyor W L. Fernando. For the purpose of the case surveyorMr. Dharmawardena prepared plan No. 823 of 8.2.1976 on which he superimposedthe old plan of 1879 from a tracing. The old Plan of 1879 was marked as P3 in the casebut not tendered to court. The plan No. 163 of 1973 of surveyor W. L. Fernando wasmarked P4 and admitted subject to proof but not proved.
Mr. Dharmawardena in his plan No. 823 showed the existing western boundary of thedisputed lot and in a red line the eastern boundary as superimposed according to theplan of 1879. The Lot so formed he marked as Lot A in extent 02.31 perches. Theexisting western boundary of Lot A had live trees 6 to 7 years old according toDharmawardena (which later he conceded could be much older). Lot A had 3 coconuttrees about 25 years old which before the surveyor were claimed by the defendantwithout any objection by the plaintiff (though in his evidence in Court the plaintiffclaimed these trees). The plaintiff was co-owner of his land and the defendant was aco-owner of the adjacent land.
Held:
A co-owner can sue his neighbour also a co-owner of the adjacent land fordefinition of boundaries but he takes a risk because even if he is successful the decree inhis favour will not bind the other co-owners of the adjacent land.
The burden of proving the essential facts in a suit for definition of boundaries is onthe plaintiff.
In the guise of an action for definition of boundaries a plaintiff cannot vindicate titleto an encroachment.
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From the age of the existing fence trees on the Western boundary of Lot A theundisputed claim before the surveyor by the defendant of the three 25-year old coconuttrees and the failure of the plaintiff to complain immediately to a person in authoritywhen in 1946 he found barbed wire strands removed from his barbed wire fence, theplaintiff must be held to have failed to establish the requisites of an action for definitionof boundaries. He has failed to show that there did exist a prior live or other physicalboundary fence along the eastern boundary of Lot A as claimed by him. Further in theguise of having his eastern boundary defined the plaintiff was in fact seeking to havehimself declared entitled to Lot A.
Because of the failure of the plaintiff to produce the plan of 1879 and prove theplan of 1973 the correctness of Dharmawardena's plan No. 823 is also in doubt.
Cases referred to:
. Jacolis Appu v. David Perera-(1967) 69 NLR 548. 551.
Ponnuthurai v. Juhar-(1959) 66 NLR 375. 378
Maria v. Fernando-(1913) 17 NLR 65.
Ponna v. Muthuwa-(1949) 52 NLR 59.
APPEAL from Judgment of the District Court of Negombo.
P A. D. Samarasekera, P C. with G. L. Geethananda for substituted plaintiff-appellants.Harsha Soza for substituted defendant-respondents.
Cur adv vult.
February 27, 1987
ABEYWIRA J.
This matter has come up for consideration and determination beforethe Court of Appeal in view of the papers in appeal dated the 17th ofMarch 1981 tendered by the original plaintiff-appellant who hassought to have the judgment and decree of the learned District Judgedated the 16th of January 1980 set aside for any one or more of thereasons mentioned in his petition of appeal.
The original plaintiff had instituted this action on the 25th ofFebruary 1974 in the District Court of Negombo stating inter alia thathe is the lawful owner and possessor of the land called Kongahawattesituated at Ja-ela within the jurisdiction of the said District Court and inextent about 30.75 perches and more fully described in the scheduleA to the plaint. It is also averred that the original defendant washimself the owner and proprietor of the adjoining land to the East ofthe plaintiff's land also called by the name Kongahawatte in extentabout one rood and more fully described in the schedule B to the
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plaint. These two lands are stated to be contiguous to oneanother-the land belonging to the plaintiff lying to the West of theland belonging to the defendant.
The plaintiff has also averred that the common boundary fencewhich existed between the two lands is at present obliterated andundefined on the ground, and by this action seeks to have the sameredefined by an order obtained from this Court.
The plaintiff, prior to the institution of this action, had his own landcalled Kongahawatte surveyed privately by a surveyor named W. L.Fernando, with reference to another plan bearing the number 2465 of10th May 1879 prepared by surveyor F. W. Smith. The planaccordingly prepared by surveyor W. L. Fernando is Plan No. 163 of14 10.1973 (P4). This Plan No. 163 has been tendered along witfTthe plaint though not produced and proved at the trial.
It is the contention of the plaintiff that the defendant was notprepared to accept the correctness and accuracy of this private planNo. 163 of 1973 in order to demarcate on the ground the commonboundary which had existed between their two lands and this hadcompelled him to institute this action to have the common boundarybetween the two lands defined on the ground as shown in Plan No.163 of 14.10.1973.
It will be relevant to note at this stage that the private plan No. 163of 1973 prepared by surveyor Fernando shows by black lines theexisting physical features on the ground when he went to the said landto prepare this plan. He has also shown by the red lines in his plan thesuperimposed boundaries of Plan No. 2465 of 1879 stated to havebeer prepared by surveyor F. W. Smith and which plan had been givento him by the plaintiff in order to assist him in the preparation of hisown plan No. 163 of 1973. It will be seen that his superimposition ofplan 2465 of 1879, shows an area of land to the East of the thenexisting eastern boundary of the plaintiff's land which therebyconstitutes an encroachment of the plaintiff's land by the possessor ofthe land to the East of it which according to the plaintiff was owned bythe defendant.
It is therefore quite obvious that the said encroachment on theeastern side was well known to the plaintiff before he instituted thepresent action and that the original defendant was not prepared tc
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accept the red line shown on the eastern side of this corpus in PlanNo. 163 of 1973 as forming the correct common boundary betweenthe two lands.
The original answer to this case filed on the 27th of February 1975shows that the defendant accepts the averments in paragraph one ofthe plaint with reference to his residence and that these two landsreferred to by the plaintiff fall within the jurisdiction of the District Courtof Negombo, as they are situated at Kanuwana in the Ja-ela District.He however denies that any cause of action has accrued to theplaintiff to institute the present case since the common boundarybetween their two lands is in existence and distinctly found on theground. The defendant further states that his land which is to the Eastof the land said to belong to the plaintiff is larger than the extent givenin the schedule B to the plaint. According to the defendant his land isabout 2 roods or more in extent and described in the schedule to hisown answer.
The defendant has denied the averments in paragraphs 2, 3. 5, 6, 8and 10 of the plaint. It is the contention of the defendant that thecommon boundary between their two lands, is distinctly shown on theground by the existing live fence which had up to then been acceptedby both landowners to be the common boundary between these twolands called Kongahawatte. The defendant has stated that he is only aco-owner of the land to the East called Kongahawatte and he claimstitle to the same by virtue of a deed of gift and also by prescriptivepossession.
The defendant thus states that on the pretext of seeking to have thecommon boundary between the two lands defined by an order ofCourt, the plaintiff is in actual fact seeking to vindicate his title to thatextent of land which falls to the East of the existing eastern boundaryof his land as shown in Plan No. 163 of 1973 and the red linu on theeast of it which has come into being as a result of the superimpositionof Plan No. 2465 of 1879. The defendant thus maintains that theplaintiff has failed to institute a rei vindicatio action for the strip of landclaimed by him but disputed by the defendant, and has wrongly filedan action for definition of boundaries which thus could not bemaintained in law.
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While denying all and singular the other averments in the plaint thatare not specifically admitted by him or which are inconsistent with theaverments in his answer, the defendant prays Court for the dismissalof the said action.
Thereafter on a commission issued by Court at the instance of theplaintiff, a Commissioner of the District Court surveyorDharmawardena has prepared his Plan No. 823 of 08.02.1976together with his report and these have been produced at the trialmarked P1 and P2 respectively. In his report P2 the CommissionerDharmarwardena has mentioned the fact that both parties werepresent when he went to the land to prepare his plan, and that theblack lines shown in his Plan P1 represent the then existing boundariesof the plaintiff's land called Kongahawatte, while the red lines in hisPlan depict the superimposition made by him of Plan No. 2465 of1879 of surveyor Smith on to his surveyed Plan. According to the Plan823 (P1) it will be seen that the portion of soil in extent 2.31 perchesfalls to the East of the existing boundary of the plaintiff's land shownby a black line. This strip of land has been in the possession of thedefendant at this time and he has alone claimed the 3 coconut trees ofover 25 years in age falling within this strip of land marked 'A'.However the surveyor has stated in his report that the plaintiff alsoclaimed title to the soil of Lot 'A' as being part of his own land calledKongahawatte.
In the amended answer filed thereafter the defendant has reiteratedthe claims made by him and the legal objections taken by him in theoriginal answer. He has while claiming Lot A of Plan No. 823 of 1976together with the soil and plantations standing thereon as a part of hisown land called Kongahawatte and described in his answer, has alsospecifically pleaded title to the said Lot A by virtue of prescriptivepossession. He has thus pleaded that the plaintiff's action bedismissed both in view of the legal objections taken by him to theplaint wherein he has stated that the plaintiff if at all should haveinstituted a rei vindicatio action for the strip of land disputedlypossessed by him according to the plaintiff. The defendant also statesthat he has prescribed to the portion of land marked 'A' in Plan No.823 of 1976 as the same was possessed by him as part of his ownland called Kongahawatte which is to the East of the land claimed bythe plaintiff.
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Alfred Fernando v. Julian Fernando (Abeywira. J.)
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The case was taken up for trial originally on the 22nd of September1979 and the undermentioned issues have been recorded by theDistrict Judge at the request of the Attorneys for both parties, viz: –
Is the plaintiff entitled to the land described in the schedule 'A'to the plaint?
Was the said land surveyed by the Commissioner Mr.Dharmawardena and depicted in his Plan No. 823 of08.02.1976 as consisting of Lots A, B, C, and E?
Is the defendant entitled to the land described in schedule B tothe plaint?
Is that land referred to as the land belonging to Julian Fernandoin the said Plan?
Is the plaintiff entitled to have the common boundary betweenthese two lands which has got obliterated refixed according tolaw?
Is the defendant a co-owner of the land described in theschedule to the answer and inclusive of Lot A shown in Plan No.823 as pleaded in the answer?
Is the western boundary of this land and the land claimed by theplaintiff divided by a live fence standing to the West of Lot A asshown in that Plan and which live fence presently consists of 8boundary trees?
Is title to the land claimed by the defendant as a co-owner inhim by virtue of his legal title and also by his prescriptivepossession?
Is the plaintiff seeking to have himself declared entitled to thatportion of land depicted as Lot A in the plan on the basis of anaction filed for the definition of boundaries?
If issue No. 9 is answered in the affirmative, can the plaintiffhave and maintain the present action?
Can the plaintiff have and maintain this action without makingthe other co-owners both of the plaintiff's land and of the landclaimed by this defendant, parties to this action?
The Commissioner of Court, Surveyor Dharmawardena whoprepared Plan No. 823 of 08.02.1976 and the accompanying reporthas submitted the same in evidence marked P1 and P2 respectively.He has stated to Court when giving evidence that he took all the helpand other assistance available to him from the old Plan No. 2465 of1879 prepared by surveyor Smith. This old Plan though marked in
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evidence as P3 by the plaintiff, has not in fact been produced for theconsideration of the trial Judge when preparing his judgment. Atracing of this Plan stated to have been taken has also not beenproduced at the trial though the field notes of the CommissionerDharmawardena refers to this old Plan. He has also referred inevidence to the private Plan No. 163 of 14.10.1973 (P4) stated tohave been prepared by Surveyor Fernando which too had been madeavailable to the Court surveyor by the plaintiff. This plan had beenallowed subject to proof of the same, but we find that this plan No.163 of 1973 (P4) has also not been duly proved by the plaintiff at thetrial. It will be thus seen that neither of these two plans used by theCommissioner of Court, Mr. Dharmawardena in the preparation of hisown plan No. 823 of 1976 (PI) have been duly proved according tolaw and with this default the correctness of the Plan made by SurveyorDharmawardena is in doubt, more specially as the present action isone for the definition of boundaries between two adjoining lands.
For the purpose of the present action it will be relevant to note thatonly Lot A in Plan No. 823 of 1976 (P1) need come for considerationby Court out of the Lots falling outside the black lines shown in thePlan P1.
In his report P2 the Commissioner has stated that the existingboundaries on the ground are depicted by the black lines in his plan.He has stated that the existing boundary on the Western side of theplaintiff's land or Lot E in Plan P1 is an old live fence whichcorresponds with the boundary shown in Plan No. 2465 of 1879made by Surveyor Smith. It is as a result of the superimposition of thisold plan on the plan pertaining to the existing boundaries, that theCommissioner has concluded that the said Lot A in his Plan P1 is alsoa part of the plaintiff's land called Kongahawatte. As stated by meearlier in this judgment the Commissioner has said both in his reportand in the evidence given by him at the trial that the 3 coconut treesstanding on Lot A have been specifically claimed by the defendantwho is also in possession of the strip of soil in extent 02.31 perchesand consisting of Lot A, while the plaintiff though accepting the factthese 3 coconut trees that belong to the defendant who also took theproduce from them, has made a claim to the soil forming the said LotA as part of his own land.
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Under cross-examination the surveyor has stated to Court that the'Eastern' boundary consists of a live fence, and that both parties didaccept the fact that this fence stood on the correct boundary. On areading of the evidence in this case, it is quite clear to one that whatthe surveyor did mean was that the, 'Western' boundary of theplaintiff's land (or the Western boundary of Lot E in Plan No. 823 (P1))did constitute a live fence which was accepted as correct by bothsides. He has also told Court in evidence that this Western boundaryfence was in conformity with the fence found in Plan No. 2465 of1879 prepared by Mr. Smith. However with the non-production of thisdocument much of the value of this Commissioner's evidence on thepoint is lessened to that extent so as to make it of no value to a Courtconsidering the evidence of the Surveyor on this point. Under furthercross-examination the Surveyor has accepted the fact that on theblack lines in his Plan No. 823 of 1976 (P1) which is the Easternboundary of Lot E or the Western boundary of Lot A there are somelive boundary trees which according to him would be about 6 to 7years of age. He has however accepted the fact that these trees alongthe Western boundary of Lot A in his plan could be much older thanthis too. This evidence of the Commissioner is vague and 'loose' andunworthy of credit from an experienced Commissioner of Court senton a specific job of work to find out and define certain boundary fencesif found by him on the lands in question, since the ages of theseboundary trees would usually give anyone an idea as to when this livefence on the West of Lot A did come up and who had possessed thesaid Lot A thereafter.
The evidence of the surveyor also shows Court that there has notbeen a single live boundary fence tree or any such tree along theEastern boundary of Lot A, which in fact has only come into existenceas a result of the superimposition done by the Court Commissioner.We are therefore of the view that these boundary trees on the westernside of Lot A in Plan 823 of 1976 (P1) are very probably much older inage than the 6 to 7 years which the Commissioner has tried to makeout at tie trial Court and that for reasons best known to him, but notdisclosed to others, he was not prepared to give their probable ageseven when asked in cross examination.
According to the surveyor the plaintiff had himself told him at thisland and when he had gone for its survey that the 3 coconut treesfalling within the said Lot A in Plan 823 had been planted by thedefendant and that their entire produce had been taken without any
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objection from him by the defendant, without giving him any share ofthe produce or even by way of some money if the soil in Lot A waswithout any dispute acknowledged to belong to the plaintiff. It wouldappear more probable from the evidence of this surveyor himself thatthe live boundary trees which formed the Western boundary of Lot Ain his Plan P1 were more than 10 years in age and with the 3 coconuttrees in that Lot stated to be about 25 years old, were about thatsame age and that all these trees were possessed by the defendant asa part of the adjoining land to the East called Kongahawatte to whichthe defendant has claimed undivided rights. It will be also relevant tonote that when giving evidence at the trial the plaintiff has completelycontradicted this admission made by him to the surveyor when hestated to Court that it was he alone who did possess the said 3coconut trees in Lot A.
Again though Plan No. 163 of 1973 prepared by surveyor W. L.Fernando at a private survey made at the request of the plaintiff, hasnot been duly proved, it will be seen that the Commissioner of CourtSurveyor Dharmawardena has, gone on the belief and understandingthat it is an accurate plan depicting the land Claimed by the plaintiff.However no judicial notice as to its correctness can be taken by Courtespecially as the defendant has put the plaintiff to the strict proof ofthe same and though the defendant has given an undertaking to Courtthat the same will be duly proved he failed to do so.
Even in re-examination, the surveyor while stating that the live fenceto the West of Lot E in Plan No. 823 (PI) is a very clear and distinctlive fence which corresponds with the fence found in the plan made bysurveyor Smith in the year 1879, does again admit that he could notbe sure as to the ages of the trees shown therein, and also that it ispossible in the course of time for such a fence to get shifted. It will bealso relevant to note that the plaintiff has failed to point out to thesurveyor where the earlier barbed-wire fence which formed theEastern boundary of his land did stand.
The plaintiff has stated in evidence that his land calledKongahawatte and described in schedule A to the plaint falls within theVillage Committee jurisdiction of Ja-ela and that the said land is shownas consisting of Lots A, E and B in the Plan No. 823 of 1976 (P1)prepared by the Commissioner Mr. Dharmawardena on a Commissionissued to him by Court at the request of the plaintiff. It is the evidence
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of the plaintiff that his father was entitled to this property by deed ofSale No. 9689 of 1904 (P5) and that with the death of the father, hebecame entitled to the same. We find that here ioo the said deed ofsale though marked in evidence, has not been tendered to Court at theconclusion of the evidence. The plaintiff has stated in evidence thatthe eastern boundary of his own land called Kongahawatte in aboutthe year 1941 or so had consisted of a barbed wire fence. He has alsostated that he was not residing on this land during this period since hewas sent to various parts of the Island in connection with his job andthat it was much later that he came to reside in the said land. Inanswer to Court the plaintiff has said that when he later came to resideon this land he observed that the Eastern boundary barbed-wire fencestrands were missing but made no complaint of it then to any publicauthority. He hes however stated that he subsequently made acomplaint to the Conciliation Board of the area in order to have theEastern boundary fence of his land defined on the ground. He hasproduced the certificate of the Conciliation Board dated the 18th ofNovember 1973 issued on this complaint under Section 14 of.theConciliation Board Act as P3. A perusal of this document shows onethat the complaint has been made to the effect that the barbed wirestrands on both sides of his land were found missing. Strangely thecomplaint made to the Conciliation Board does not state anything inregard to the live fence which had been by then put up. Here too hehas contradicted himself with the evidence given at the trial for beforethe District Court the plaintiff has only referred to a barbed wire fenceon the eastern side of his land. The private survey Plan No. 163 of14.10.1973 prepared by surveyor W. L Fernando has been donebefore the issue of the Certificate by the Conciliation Board and it isvery likely that having found to his satisfaction that a portion of his landnamed Kongahawatte was being possessed by the adjoining landowner called Julian Fernando, the original defendant, the plaintiffmade a complaint against him to the Conciliation Board pertaining tothe loss of the barbed wires from his eastern boundary. The saidCertificate marked P3 also shows that the plaintiff was satisfied thatthe boundaries had been altered and thus it is not an obliteration of thefences by mere passage of time as stated in the plaint to Court. It willbe seen that though the Commissioner in his Plan No. 823 of 1976(PI) has shown no signs whatever of any live fence having been thereearlier on the red line which forms the eastern boundary of Lot A in hisPlan P1, there is also no reference even to the fact that the plaintiff didpoint out to him any place where this wire fence had stood earlier. As
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stated earlier it is clear that the plaintiff had wanted the defendant toaccept the red boundary line on the eastern side in SurveyorFernando's Plan as the correct boundary between the two lands butwhen this was disputed and rejected by the defendant who ha.:maintained that the live fence shown in black lines in the same planwas correct and the then existing boundary fence between the twolands, the plaintiff had decided on his legal action. Thus it is evident toanyone that the plaintiff was satisfied that the defendant hadencroached on a portion of his land which is a thin strip of soil fromNorth to South along his Eastern boundary even before he went beforethe Conciliation Board but for reasons best known to him and hisAttorney, an action for the definition of boundaries between theplaintiff's land and the defendant's land was instituted in the DistrictCourt of Negombo by this case.
Under cross-examination thp plaintiff accepts the fact that Lots A• and B in the Commissioner's Plan 823(P1) are parts of his own landcalled Kongahawatte and that he had instituted this action in theexpectation of getting back these two lots for himself, thereforeadmitting that this was in fact an action for the declaration of title tothese lots. At the trial the plaintiff has confined his case to have onlythe eastern boundary of Lot A in Plan 823(P1) defined on the groundaccording to the red lines shown therein. The defendant has statedthat the said portion marked A has been possessed by him as part ofhis own land which lies to the East of the land of the plaintiff and thathe has also prescribed to the said Lot A.
The plaintiff has admitted under cross-examination that at the timehe instituted this case he was not the sole owner of the land calledKongahawatte referred to in schedule A to the plaint though he haspleaded as such. He did accept the fact that 10 perches of his landhad been conveyed to others. It was also shown that before theinstitution of this case the defendant Julian Fernando had by Deed ofGift No. 9361 of 1951 (D1) got only an undivided 1/2 share of theland described in the schedule B to the plaint. However it could bestraightaway stated that both the plaintiff and the defendant need notbe the sole owners of the respective lands claimed by them and thateven a co-owner or occupier in possession could institute an action forthe definition of boundaries between his land held as a co-owner andthe adjoining land held by any other disputing co-owner. The SupremeCourt case Jacolis Appu v. David. Perera (1) is authority for the saidproposition. In fact the other co-owners of the land claimed by the
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defendant as an undivided 1 /2 share holder of it, need not be addedas defendants to this case under section 18 of the Civil ProcedureCode for it may well be that the real trouble maker is only thedefendant. The plaintiff does however take a risk when he does notadd them as defendants for even if he is successful in the present case•against this defendant called Julian Fernando none of the otherco-owners to that land will be bound by the decree got by the plaintiffin the present case. (See Ponnuthurai v. Juhar (2) at p. 378.) Gane inhis translation of Voet's Pandects in Book 10 Title 1 Section 1(a) atpage 611 states as follows with reference to actions for the definitionof boundaries
‘The action for the fixing of boundaries is provided when theboundaries of lands belonging to different owners have becomeunsettled either by chance or by the act of the adjoining owners, orof a 3rd party. It is an action strictijuris, two sided and mixed; and itprincipally consists in disputes between adjoining owners as to thespace of five feet or as to the fixing and marking out of otherboundaries of lands".
On this matter we have the decision reported in two Supreme Courtdecisions also for our consideration. In the case Maria v. Fernando (3)it was held that an action for the definition of boundaries was providedby the Roman Dutch Law where the boundaries of lands belonging todifferent owners had become uncertain whether accidentally, orthrough the act of owners or.some third person. It also held that theonus of proving the essential facts in such an action was on theplaintiff.
Again in the case Ponna v. Muthuwa (4) it wa.s held that thecommon law remedy of an action for the definition of boundariespresupposes the prior existence of a common boundary which hasbeen obliterated by subsequent events. It went on to state that suchan action cannot be used for creating a demarcation.
Walter Perera in his book entitled the "The Laws of Ceylon" 2ndEdition at page 294 refers to Book 10, Title 1, Section 6 of Voetwhich states that the onus of proof of the facts that are necessary tobe proved in a definition of boundaries action is on the plaintiff. He alsostates that the right to bring such an action is available to and againstcontiguous occupiers of land whether they be owners, usufructuaries,mortgagees, emphyteutic tenants or bona fide possessors.
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Again the case Jacolis Appu v. David Perera (supra) (1) at page 651states thus:
'It is clear from the facts which I have set out above, that
the title to the portion now described as Lot 4B was in disputebetween the parties. The respondent was aware of the claim putforward by the appellants. In seeking a definition of boundariesbetween Lots 4A and 4B the respondent was in reality seeking adeclaration of title to Lot 4B. An action for the definition ofboundaries presupposes that the parties to the action are admittedlyowners or occupiers of continguous lands. The question of titleraised in issues Nos. 1 and 5 at the trial was not incidental to thequestion of the respondent's right to have the boundary defined butwas the real crux of the dispute between the parties."
Again Gane's translation of Voet's Pandects Book 10 Title 1 Section6 at page 617 states thus:
'The action is granted against neighbours to neighbours, whetherthe latter are owners, usufructuaries, (in which case you wouldcorrectly reckon the Clergy also in respect of lands belonging to theirlivings) creditors holding a hypothec, quitrenters, or possessors ingood faith. All such persons are endowed with a jus in re, and invirtue of these rights have a personal interest in unsettlement ofboundaries being avoided; and as a general rule good faith bestowson a possessor as much as true.fact if no law stands in the way".
On a consideration of the above authorities and Supreme Courtdecisions it is clear that one need not be the sole owner of a landbefore he could file an action for the definition of the boundary of thatland with that of any other adjoining land. Also it is evident from ourCourt cases that the other land owner against whom this action is filedneed not be the sole owner of that particular land.
It has been brought to the notice of the learned Judge of the DistrictCourt that as the plaintiff was only a co-owner of his land and thedefendant too only an undivided share holder of the adjoining land, theaction for the definition of boundaries will not be available to theplaintiff unless he made the other co-oWners of both his land and ofthe defendant's land parties to the said case. As stated by us it is clearthat such an addition of all the co-owners of both lands is notnecessary. Thus we hold that on the evidence led at the trial the
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plaintiff had sufficient proprietary interest in his land to enable him toinstitute this action provided the other requisites were also in him atthe time of the institution of this action.
We would now consider whether the plaintiff did possess all thenecessary requirements which the law required him to have at the time'of the institution of this action. As mentioned earlier he had sufficientproprietary interests in his own land called Kongahawatte to institutethis action against the defendant who was the co-owner andpossessor of the other land adjoining the land of the plaintiff on theEast.
As stated by Voet in his Book 10 Title 1 Section 1 (a) at Page 611,this action is provided when the boundaries of land belonging todifferent owners have become unsettled either by chance or by the actof the adjoining owners or of a third party. In the Supreme Court casePonna v. Muthuwa (supra) (4) Gratiaen J. when considering the abovementioned Book on Voet’s Pandects has at pages 60-61 stated thus:
"the actio finium regundorum only lies for defining and settlingboundaries between adjacent owners 'whenever the boundarieshave become uncertain, whether accidentally or through the act ofthe owners or some third party (Voet 10.1.1.)…. Suchproceedings, in my opinion, presuppose the prior existence of acommon boundary which has been obliterated by some subsequentevent. The remedy cannot be sought for the purpose of creating onsome equitable basis a line of demarcation which had never beenthere, before. The true basis of the remedy, as in England, is thatthere is a 'tacit agreement or duty between adjacent proprietors tokeep up and preserve the boundaries between their respectiveestates".
It will be thus seen that the plaintiff will have to prove that there didexist an earlier physical boundary fence which is now not there, andwhich he was keen to replace at the same place where the earlierfence had stood. As regards this matter we find that the plaintiff hasfailed to satisfy and convince the Court that his evidence at the trial iscorrect. It will be observed that his plaint is on the basis that thecommon boundary fence between the two lands has got defaced veryprobably by the effluxion of time. He has nevertheless failed to pointout to the surveyor who had prepared the Plan 823(P1) on the.Commission issued in this case, where this earlier fence did stand. Onthe other hand when giving evidence he has told the learned Judge
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Sri Lanka Law Reports
that the eastern boundary of his land called Kongahawatte was clearlydemarcated on the ground by a barbed wire fence and that in aboutthe year 1946 or so, while he was elsewhere in connection with hisjob, he had when coming to this land on one occasion found thestrands of barbed-wire missing. We note that even then he has madeno complaint to any public authority in relation to this. He has howevergone before the Conciliation Board of the area some time later andmade a complaint regarding the removal of this barbed-wire fence andthe said Board has issued its Certificate to him on the 17th ofNovember, 1973 after which the present action has been filed.
The plaintiff has failed to establish in evidence at the trial, the factthat such a fence did exist along the eastern boundary of Lot A asshown in Plan No. 823(P1) which is shown as a red line and that itconstitutes the eastern boundary of the plaintiff's land. This red linehas come on to the said Plan prepared for this case only after thesurveyor had superimposed Plan No. 2465 of 1879 which had beengiven to him to assist him in carrying out his work as authorised by theCommission. Thus we are satisfied that there is no reasonable andacceptable evidence adduced at the trial to establish the fact thatthere had been a barbed-wire fence on the eastern side of theplaintiff's land to indicate his eastern boundary. Further the black lineshown in this Plan P1 which is shown to be the western boundary ofLot A is referred to as a live fence that has been put up by thedefendant. Again the plantation in Lot A which consists of 3 coconuttrees of about 25 years in age has been claimed before the surveyoronly by the defendant who has also enjoyed their produce. Thus it isquite evident to us that the possession of Lot A has been exclusivelyby the defendant who has therefore acquired a prescriptive title also tothe soil and plantations in Lot A.
We are therefore of the view that the plaintiff has failed to establishthat he did have the necessary requisites expected in law from onewho wants to file an action for definition of boundaries. As statedearlier in-this judgment it is clear that prior to the institution of thisaction the plaintiff was aware of the fact that the defendant was notaccepting the correctness of where the common boundary should beas he had refused to accept the accuracy and correctness of theprivate plan prepared by surveyor Fernando. He was claiming the live
CA
Alfred Fernando v. Julian Fernando (Abeywira. J.)
93
fence which stood to the west of Lot A as the boundary fence and wasthereby claiming the soil and plantation in that portion of land 02.31perches in extent which was shown by the Commissioner in his Plan823(P1). In these circumstances'the proper action that the plaintiffhad to bring was a rei vindicatio suit against the defendant and not onefor a definition of boundaries (see Jacolis Appu v. David Perera (supra)(1) 551-552.) Learned counsel for the appellant submitted that inactual fact all actions for the definition of boundaries would involve adispute to even a small quantity of soil which is taken up for theerection of the boundary fence. However in this case the facts doshow that it is not that thin strip of soil on which the fence will standthat is disputed but an area of 02.31 perches to the West of the redline shown as the eastern boundary of Lot A in the Plan P1 and onwhich red line the correct boundary fence should have existed. For thesaid reasons stated in our judgment, we are satisfied that the plaintiffhas failed to establish the fact that he was in law entitled to bring anaction for the definition of boundaries especially as he has failed toshow that there did exist a prior live or other physical boundary fencealong the eastern boundary of his land which he maintains is the redline shown in the Plan P1; and further in the guise of having his easternboundary defined, the plaintiff was in fact seeking to have himselfdeclared entitled to Lot A in Plan 823 (P1).
We would therefore affirm the judgment and decree pf the DistrictCourt and dismiss the appeal with costs fixed at Rs. 210.
G. P. S. DE SILVA, J.-l agree.
Appeal dismissed.
Note by Editor: Application No. SPL/LA/36/87 for leave to appealfrom this judgment was refused on 29.5.87 by the Supreme Court.