Under the circumstances the Court should have looked for anyevidence of any predecessor in title or an independent witness toconfirm the physical existence on ground of a common affirmativelyascertainable boundary. There was no such evidence of a commonboundary between ’A’ land on the one hand and ‘B’, ’C’, 'D' and ’E’
Deeman Silva v. Silva and Others (Wigneswaran, J.)
lands on the other. Without such averments and evidence the Courtshould not have proceeded to entertain this action. If there was noascertainable boundary to be redefined this action (actio finiumregundorum) should have been terminated. The action should havebeen then, under the circumstances, one of declaration of title andnot definition of boundaries.
The manner in which the learned District Judge came to hisconclusion gave no chance to the affected parties to proveprescription if in fact they had prescribed to the area they were inpossession. Suppose the action was one of declaration of title or reivindicatio the defendant had the right to claim even land proved tobe part of the paper title of the plaintiff on the basis that it had beenpossessed adversely by the defendant thus seeking a title to suchdisputed part by prescription.
The learned Counsel for the plaintiff-respondent has argued –
that the superimposed Southern boundary in red on P2was the common boundary.
Surveyor Fernando was an impartial witness.
He contradicted 3rd defendant with regard to a ditchcarrying water about 10 feet in length as being theboundary.
Plan P1 does not refer to a ditch.
Judge has a right to fix a new common boundary “if theold boundaries cannot conveniently be restored". (WalterPerera; Laws of Ceylon Vol. 1 page 193).
The decree in partition case No. 12786/P was a decree inrem.
These submissions would now be examined.
The superimposed Southern boundary in Red on Plan P2 need nothave been the common boundary. If the plaintiff’s deeds or plans or
Sri Lanka Law Reports
11997) 2 Sri LR.
evidence on his behalf affirmatively established the course of the redline as the common boundary at any prior period of time, then thisaction could have been filed to redefine that common boundary. Thewhole exercise of getting the neighbour’s plan superimposed byCourt on one’s land as it stood at date to ascertain one's boundary(unless it be with the consent of neighbours without interference byCourt) cannot be encouraged in law. In any event the fact that theplaintiff did not know his northern boundary at all debarred him fromfiling an action of this nature (actio finium regundorum).
Whether Surveyor Fernando was an impartial witness or not thered line on Plan P2 cannot be accepted as the Northern boundary ofthe plaintiff’s land. The plaintiff had no independent means by whichhe could have established his Northern boundary. In fact in 1978when he became owner of ‘A’ land there was no boundary on land.The Surveyor himself says there was no Southern boundary of lot Rexisting on ground. On P3 he said nothing about the ditch referred toby the 3rd defendant. He had not stated that he checked on land andfound no traces of the ditch. It is only in his evidence he denies theexistence of the ditch. Since he made no mention of the ditch on hisreport he had to deny its existence. The 3rd defendant had referredto the ditch in his answer. The commission papers should havespecifically directed the Surveyor to question about the ditch,investigate on its existence or otherwise and have his observationsrecorded. Since the Southern boundary was non existent it wasnecessary for the Court to have given specific instructions to theSurveyor in this regard. Merely because the Surveyor did not recordanything about the ditch it did not prove or disprove the existence ofa ditch. It is interesting to note that the plaintiff was unaware of anascertainable boundary while the defendant volunteered to refer tosuch a boundary. Yet the Surveyor made no mention of it in P3.
The right of the judge to fix new boundaries arises where the oldboundaries cannot conveniently be restored, (vide Walter Pereraabove referred to). In this case new boundaries are sought where theold boundary was never known to the plaintiff.
The decree in partition case 12786/P was no doubt a decree jp-rem. But that decree cannot form the basis for the plaintiff to establish
Deeman Silva v. Silva and Others (Wigneswaran, J.)
title to his land which is outside the corpus dealt with in the partitionaction. Furthermore this was not an area where registration of Planshad been specifically undertaken as in Wellawatte and Kirullapone inColombo. If it had been so, the Registration Plans of both partiescould have been examined and a conclusion arrived at.
Furthermore the 3rd defendant could have prescribed to additionalland outside the area allotted to him or his predecessor in title in thepartition decree after 1945. The plaintiff cannot seek to limit the 3rddefendant's rights to the decree in the partition case. The plaintiffmust fight his own battles; not with the weapons and armaments ofhis adversary. This is particularly so in an action for definition ofboundaries. The plaintiff’s right to have and maintain an action basedon actio finium regundorum depends on the plaint setting out thepositive existence of an ascertainable boundary in time gone by, itsobliteration later and the need at present to ascertain the correctboundary and have it delineated on ground.
In the absence of the plaint conforming to the requirements ofsuch an action, in view of the learned Judge misdirecting himself withregard to –
the nature of the actio finium regundorum,
the cause of action on which the plaintiff purportedly cameinto Court,
the assessment and evaluation of evidence tendered toCourt,
this appeal of the 3rd defendant-appellant is allowed and theplaintiff’s action in the District Court of Negombo is dismissed withtaxed costs payable in both Courts by the plaintiff-respondent to the3rd defendant-appellant. The ex parte decree against the 1st and2nd defendant-respondents is also hereby set aside.
WEERASEKERA, J. – I agree.
Appeal allowed.