042-SLLR-SLLR-1997-2-DEEMAN-SILVA-v.-SILVA-AND-OTHERS.pdf
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DEEMAN SILVA
V.
SILVA AND OTHERS
COURT OF APPEAL.
WEERASEKERA, J. ANDWIGNESWARAN, J.
A. 34/88(F).
C. NEGOMBO 2852/L.
JANUARY 19, 1996.
MARCH 11. 1996.
OCTOBER 7,1996.
OCTOBER 28, 1996.
Definition of boundaries – Actio finium regundorum only if there is anascertainable boundary – Burden cast upon the plaintiff to prove his assertions.
The plaintiff-respondent filed plaint for definition of boundaries. He simplypleaded that he was the legal owner and the defendants were the reputed ownersof the adjacent lands. The plaintiff-respondent averred that he wanted to fix hisNorthern boundary in terms of the defendants' plan, but as the defendant hadfailed to respond, wanted the Court to fix the boundary in terms of the plan.District Court held in favour of the plaintiff, on appeal –
Held:
An action for definition of boundaries lies only to define and settle boundariesbetween adjacent owners – 'whenever the boundaries have become uncertainwhether accidentally or through the act of the owners or some third party. Theplaintiff must come into Court stating (1) that an ascertainable common boundarypreviously existed on the ground and (2) that such boundary had beenobliterated subsequently.
No plaintiff should be allowed to come into Court and ask the Court to unveilthe defendants case unless the law recognises such a right. It is a burden castupon the plaintiff under our law to prove his assertions in such cases.
He cannot come into Court and ask the Court to use its jurisdiction to compel thedefendant to prove title to the land the defendant is in occupation, or to identify itsboundaries as per the defendant's plans and deeds.
The right of the judge to fix new boundaries arises where the old boundarycannot conveniently be restored. In this case new boundaries are sought wherethe old boundary was never known to the plaintiff.
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(4) If there was no ascertainable boundary to be redefined this action (actiofinium regundorum) should have been terminated. The action should have beenthen under the circumstances one of ‘declaration of title’ and not definition ofboundaries.
Per Wigneswaran, J.
“The plaintiff must fight his own battles not with the weapons and armaments ofhis adversary".
APPEAL from the judgment of the District Court of Negombo.
Cases referred to:
Maria v. Fernando, 17 NLR 65.
Fernando v. Fernando, [1987] 2 Sri. L.R. 78.
Sunil Cooray with Chitrananda Liyanage for defendant-appellant.
Bimal Rajapkse for plaintiff-respondent.
Cur. adv. vult.
April 04, 1997.
WIGNESWARAN, J.
The plaintiff-respondent filed plaint on 10.07.81 against the 3rddefendant-appellant and 1st and 2nd defendant-respondents fordefinition of boundaries.
The plaintiff-respondent’s land described in schedule ’A’ to theplaint did not refer to a plan. The lands of the three defendants weredescribed with reference to a partition plan No. 6098 of 1945.
The plaintiff-respondent simply pleaded in his plaint that theplaintiff was the legal owner of land described in schedule ’A’ to theplaint (hereinafter referred to as ‘A’ land) and that the 1st defendantwas the reputed owner of land described in schedule 'B' to the plaint(hereinafter referred to as the 'B' land) the 1st and 2nd defendantswere reputed owners of land described in schedule 'C' to the plaint(hereinafter referred to as the ‘C’ plan) and the 3rd defendant-appellant was the reputed owner of lands described in schedule ‘D*
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and ‘E’ to the plaint (hereinafter referred to as ’D’ and ‘E’ lands). Thenhe pleaded that the Northern boundary of ‘A’ land and the Southernboundary of 'B ‘C’, ‘D’ and ‘E’ lands was a common boundary . Theplaint thereafter went on to say that this boundary was indefinite anduncertain and not traceable on ground. Then the plaint referred to theearlier mentioned defendant’s partition plan No. 6098 filed of recordin D.C. Negombo Case No. 12786/P.
The plaintiff then averred that he wanted to fix his Northernboundary in terms of the said defendant’s plan but the defendantshad failed to respond. He then placed his cause of action on theirfailure to respond and wanted the Court to fix the boundary in termsof the said plan.
The plaintiff prayed for the ascertainment of the boundaries interms of the said plan No. 6098 and for the definition of same onground and for costs.
The 1st and 2nd defendant-respondents failed to file answer afterreceiving summons. The case went ex parte against them. The 3rddefendant-appellant filed answer and after trial the learned DistrictJudge of Negombo by judgment dated 19.02.88 held in favour of theplaintiff-respondent.
This is an appeal against the said judgment by the 3rd defendant-appellant.
The basis on which the learned District Judge held in favour of theplaintiff-respondent was a superimposition plan No. 1127 dated26.01.82 prepared by R. I. Fernando, Surveyor.
Considering the pleadings, the plan, the evidence led and thejudgment entered there is no doubt that the learned District Judgehad misdirected himself on many fundamentals in this case. Thesewould now be enumerated. 1
(1) An action for definition of boundaries viz. actio finiumregundorum lies only to define and settle boundaries between
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adjacent owners “whenever the boundaries have become uncertainwhether accidentally or through the act of the owners or some thirdparty” (vide Voet 10.1.1 and Ponna v. Muthuwa)m. Therefore theplaintiff must come into Court stating (i) that an ascertainablecommon boundary previously existed physically on the groundand (ii) that such common boundary had been obliteratedsubsequently.
In this case the Northern boundary of ’A’ land was referred to in theplaint as lots A1, A2, A3 and A4 belonging to the defendants. Thiscould not have been the boundary of the plaintiff's land according tohis title deeds unless the boundary on the North of the plaintiff’s landwas described in relation to Plan No. 6098. No such reference toeither Plan 6098 or to any other plan is made in the schedule to theland (vide Northern boundary mentioned in P4). The plaintiff thus didnot describe his land in terms of his title deeds as at or before theyear 1945 (year of Partition Plan) or even as at 1978 (p4). Only if acommon affirmatively ascertainable boundary existed between theparties in 1945 or thereafter could the plaintiff have taken up theposition that the boundary had got obliterated. Here the plaintiffrefers to the defendant's land as his Northern boundary and asks forthe definition of the defendant’s Southern boundary according todefendant’s Plan to ascertain his Northern boundary. Clearly thisshould not have been allowed by the learned District Judge sincethe plaintiff had not referred to any ascertainable Northern boundaryin his plaint in order to take up the position that such boundary hadgot obliterated, (vide Maria v. Fernando(,)and Fernando v.Fernando™).
(2) No plaintiff should be allowed to come into Court and ask theCourt to unveil the defendant’s title and plans to him to prove theplaintiff’s case unless the law recognises such a right. It is a burdencast upon the plaintiff under our law to prove his assertions in suchcases (vide Voet 10; 1; 3). He cannot come into Court and ask theCourt to use its jurisdiction to compel the defendant to prove title tothe land the defendant is in occupation, or to identify its boundariesas per the defendant’s deeds and plans. Let us for a moment take a
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hypothetical case. Let us suppose, a plaintiff, unaware that hisSouthern boundary owner had encroached upon his land by 10perches files a case against his Northern boundary owner forencroaching upon 10 perches of his land. A plan of the Northernboundary owner’s land superimposed on the plan of the plaintiff'sland prepared as it stood at date (less 10 perches) would show anencroachment of 10 perches from the North. This would no doubt beincorrect since the 10 perches had already been lost to the Southernboundary owner and there had been no encroachment from theNorth even though the superimposition would show an encroachmentof 10 perches from the North. That is why the law in its wisdom caststhe onus on the plaintiff to prove the essential facts of his case in thefirst instances. Plaintiff should have given the boundaries in his titledeeds as at 1945 to show that the Southern boundaries of Lots A1,A2, A3 and A4 on Plan 6098 were referable to the Northern boundaryof 'A' land and that such common boundary by effluxion of time or bydesign of parties had got erased and therefore now uncertain.Without first ascertaining the plaintiff’s boundary independent of thedefendant’s partition plan the learned District Judge should not haveallowed a superimposition on the plaintiff’s land depicted in a planprepared after the filing of this action.
The learned District Judge failed to consider the fact that whenplaintiff purchased his land on Deed P4 in 1978 his Northernboundary was undefined. At page 113 of the brief the plaintiff said asfollows:-
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’
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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
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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.
i
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
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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.