005-NLR-NLR-V-67-J.-G.-KATTO-and-another-Appellants-and-M.-J.-PIYORIS-APPU-Respondent.pdf
Present : Sansoni, J., and H. N. G. Fernando, J.J. G. KATTO and another, Appellants, and M. J. PIYORIS APPU,
Respondent
S. C. 196/61—D. C. Hambantota ,786/L
Encroachment—Proof.
Plaintiff was entitled, under a partition decree, to Lot J in the partitionplan. The lBt and 2nd defendants were entitled under the same decree toLot T which adjoined Lot J on the North. The plaintiff brought the presentaction complaining that the defendants were in wrongful possession of aportion of Lot J since the entering of the partition decree.
The partition plan upon which the plaintiff based his action was not producedin evidence at the trial. Further, two commissions issued by the plaintiff totwo different Surveyors produced two contradictory plans and reports.
Held, that there was no proof of encroachment.
^.PPEAL from a judgment of the District Court, Hambantota.
H. W. Jayewardene, Q.C., with E. A. G. de Silva, for the 1st and 2ndDefend ants-Appellants.
A. F. Wijetnanne, for the Plaintiff-Respondent.
Cur. adv. vult.
November 11,1963. Sansoni, J.—
The plaintiff is entitled under the Pinal Decree dated 24th November1954 entered in D. C. Tangalle Case No. 3199 to Lot J in partition planNo. 4012 A dated 15th October 1947. The 1st and 2nd defendants areentitled under the same decree to Lot I which adjoins Lot J on the North.The plaintiff brought this action complaining that the 1st and 2nd defend-ants and their cultivators the 3rd to 5th defendants were in wrongfulpossession of a portion of Lot J since the entering of the Pinal Decree.They asked for declaration of title, ejectment and damages.
The 1st and 2nd defendants, who alone filed answer, denied the plain-tiff’s allegations. On a commission issued to him by the Court on theplaintiff’s application, Surveyor Wijendra made Plan No. 1239 aftersurveying Lots I and J and superimposing the boundaries shown inPlan No. 4012 A. In his report he said that there was no encroachmenton Lot J by the defendants, but there was an encroachment by theowners of Lot K which lies to the South of Lot J.
The plaintiff was evidently not satisfied with this plan and report,and he issued a fresh commission to Mr. Perdinand who had made thePartition plan. Mr. Ferdinand was later asked to return the commissionunexecuted, for no reason that appears on the record. He would havebeen the best person to define his own partition plan on the groundand say whether there had been an encroachment by the defendantsor not.
The plaintiff then issued a commission through the Court to SurveyorWickramasuriya, who ma le Plan No. 38 and reported that the defendantshad encroached on the plaintiff’s Lot to the extent of A.l r.O p.15.
With these conflicting reports before him, the learned District Judgeafter trial accepted Surveyor Wiokramasuriya’s report and gave judgmentfor the plaintiff. The defendants have appealed.
I am unable to accept the learned Judge’s decision. The first seriousobjection to it is that the partition plan upon which the plaintiff based hisaction has not been produced in evidence. The Final Decree wasproduced, but the relevant document to prove his claim that there was anencroachment is the partition plan. Further, Surveyor Wickramasuriyahas relied on the following data for bis superimposition of the partitionplan—(1) two land marks on the southern boundary of LotsK and P. Since he says that no land marks appear in the partitionplan, there is no guarantee that they fix correctly the southernboundary of Lots K and P. There is no reason why it should beassumed that the southern boundary of Lots K and P as it nowappears on the ground is the same southern boundary that appears in thepartition plan. Mr. Wickramasuriya says that the plaintiff showed himthe ridge which is the southern boundary of Lo+s K and P, but he cannotsay whether it is the correct southern boundary. (2) The channel on thewestern boundary, and the eastern boundary of Lot 3£, were the otherdata which Mr. Wickramasuriya took for his superimposition. It is inevidence that the old channelshown in the partition plan is not the samechannel as exists today. It cannot therefore be regarded as asatisfactory point upon which to base a fixation.
It is difficult to understand why Mr. Wickramasuriya has not surveyedLot I, which is the defendants’ Lot. In the absence of such a surveyhe is unable to say whether the defendants have taken possession ofmore land than they are entitled to.
According to Mr. Wijendra, Lot I as possessed by the defendants isa.3 B.3 p.12 whereas under the partition plan it should be A.3 R.3 P.30.If the defendants had encroached on the plaintiff’s Lot, far from losing18 perches of land, I should expect them to be in possession of morethan a.3 r.3 p.30 Mr. Wijendra confessed that there were no permanentfeatures on the ground which he could take for his fixation. 1 thinkthis is probably the true position, in view of what I have already remarkedabout the data on which Mr. Wickramasuriya relied. Each Surveyorno doubt has done his best, but there is the unsatisfactory result that thetwo commissions issued by the plaintiff have produced two contradictoryplans and reports.
In this state of things the only conclusion I can come to is that theplaintiff has failed to establish that there was an encroachment on hisLot by the defendants, and I would therefore set aside the judgmentof the learned Judge and dismiss the plaintiff’s action with costs.
H. N. G. Fernando, J.—I agree.