024-SLLR-SLLR-1989-V-1-LEELAWATHIE-HAMINE-AND-ANOTHER-v.-GNANASIRI.pdf
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Sri Lanka Law Reports ■
11989] I SriL R.
LEELAWATHIE HAMINE AND ANOtHER,V.
GNANASIRI
COURT OF APPEAL
WIJETUNGA. J. AND WIJEYARATNE. J.
A. 234/82 (F)
C. GAMPAHA 22399MAY 18. 1989
Boundaries — Definition of boundaries when it lies — Is it appropriate when thedispute is to lots?'— How dispute to lots must be resolved.
An action for definition of boundaries lies only where parties are admittedly.owners of contiguous .lands and the common boundary between the two landshas become uncertain. When the dispute is to lots the appropriate remedy is anaction for declaratiorrof title ,and ejectment.
Cases referred to:
Maria v. Fernando 1 7 NLF? 65
Jakolis Appu v. David Perera 69 NLR 548APPEAL from judgment of the District Court of GampahaG. L. Geethananda ior Plaintiff-Appellants.
Gamini Jayasinghe with Miss B. Wickremarachchi for Defendant-Respondent
..Cur. adv. vult.
May 25. .1989.
WIJEYARATNE. J.
The plaintiffs-appellants filed this action against the defendant-respondent for definition of the western boundary of a landcalled. Galkotuwelanda belonging to them and described in theschedule to the plaint, and-depicted in Plan No. 946 dated12.03.1981 made by Mr. K ; A.. P. Kasturiratne.. LicensedSurveyor. ’
The plaintiffs in the prayer to the plaint have asked that theirwestern boundary be defined according to title plan No.
. 290399.
CA Leelawathie Hamine and Another v. Gnapasiri (Wijeyaratne. J.)323
The defendant apparently is the owner of the land to the westof the land of the plaintiffs. The defendant in his answer statesthat there is a stone fence over 25 years old between the twolands and that it is in good condition, and that there>is no disputeabout it. Hence he says there is no occasion for definition ofboundaries and asked that the plaintiffs action be dismissed.
The plaintiffs at the trial framed the following issues:—
Has the laoundary .between , the plaintiffs' land and the
defendant's land been .obliterated? ,. .
Are the plaintiffs- entitled to have the boundary defined■ according to Plan No. 946'filed of record?'
The defendant raised the following issues-1—
To the east of the defendant's land, is there a stone fenceover 25 years, old- between the: plaintiffs', land and the
■ defendant's land?. -■ .
(4.). If so, should the plaintiffs' action be dismissed?
On behalf of the plaintiffs', surveyor Kasturiarachchi and DonManatunga (the' 2nd'plaintiff) gave evidence. On behalf of thedefendant, the defendant himself and Davith' Si’ngho gaveevidence.
■-,x‘ …. .ACSb' ' •
The learned trial Judge held that, as'there is a stone fencebetween the two lands, there is no cause of action to have theboundaries'defined, and dismissed the* plaintiffs' action withcosts.-
However, the learned District Judge says that in the evidenceboth the plaintiffs and the defendant are claiming rights to lot 2of Plan No. 946. Hence there is a dispute about the location ofthe boundary.
•According to the decisions of the Supreme Court in the casesof Maria vs. Fernando. ^) and Jakolis Appu vs, David Perera, (2) it
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Sri Lanka Law Reports
1)9891) Sri L. R.
was laid down that an action for definition of boundariespresupposes that the parties are admittedly the owners ofcontiguous lands and the common boundary between the twolands has become uncertain. Then this action is available to havethe boundaries defined.
On .going through the evidence in this case, it appears thatthere is a dispute between the parties to two very small lots,namely lots 2 and 3 .in the said Plan 946. It appears that both .parties are claiming ownership to both these lots. In thesecircumstances there is no common undisputed boundary. Hencethe appropriate action Would have been a declaration of title andejectment action, with a survey plan being prepared to'depict theportions in dispute. It. has been stated in the above-mentionedcase of Jakolis Appu vs. David- Perera.(?) that in suchcircumstances the appropriate, action is an action for declarationof title and not one for definition of boundaries.
■ • It seems to me that in every case where it is necessary to havethe boundaries defined, the same remedy could be obtained'inan action for declaration of title, provided that a survey plan istaken out by the plaintiff. "
. I'.see no./eason. to interfere with the judgment of the learned• D.istrict Judge. I therefore dismiss the appeal with costs..
WIJETUNGA. J. — I agree.
Appeal dismissed.