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PULLENAYAGAM v. FEKNANDO.
C. R., Chilaw, 489.
Action rei vindicatio—Burial ground—Locus religiosus—Dedication by owner,when presumed.
Where, in an action rei vindicatio, it was proved that the plot ofground in question had been fenced off and used for .burial purposes formore than twenty years without any objection on the part of theplaintiff’s predecessors in title, held, that this was sufficient to raise thepresumption of dedication to the public and to constitute the plot ares religiosa, and that therefore the conveyance in favour of the plaintiffdid not pass any title to him.
N this action plaintiff prayed for a declaration of title asagainst the defendants, in that they had taken forcible and
unlawful possession of a portion of a certain land belonging tohim. The defendants pleaded that/ they and other villagers ofMarawila had used the said land as a burial ground for severalgenerations. The Commissioner found, after evidence taken andconsidered, that the portion in question had always been jungleand waste; that it had been used by the villagers for more thanten years as a burial ground; and that the plaintiff had shown nomanner of title to it. He therefore dismissed the action with costs.
The plaintiff appealed.
Bawa, for appellant.—Defendants do not claim the land asagainst the plaintiff, but assert it is a burial ground. [Bonser,C.J.—Then it is a locus religiosus. You cannot bring an action reivindicatio in regard to it. It cannot be sold or bought.] That isso only where the land is made locus religiosus by grant. Theplaintiff who claims the land as part of a larger land whichbelongs to him did not make any grant in favour of the defendantsor their ancestors (Censura Forensis, 2, 1, 10; Voet ad Pand..2, 7, 4). [Bonser, C.J.—A grant may be presumed in this case.There is no evidence of any objection on his part, or on the partof his predecessors.] In Adakken v. Silva (6 S. C. C. 21) it washeld that where a large number of people had been in the habitof burying and cremating their dead within an undefined area,part of a larger tract of land, without erecting tombs or othersepulchral monuments, such people were not entitled as againstthe owner of the land to insist on using the plot in question forfuture interments.
Van Langcnbcrg, for respondent.—The presumption of dedi-cation by reason of long and uninterrupted use applies to thepresent case, and there is no evidence to show- that the plot inquestion was possessed by plaintiff or his predecessor in title.
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In this case the plaintiff has brought an action against sixpersons who are villagers inhabiting Marawila, claiming asagainst them to be declared the owners of a small piece of landabout 3 roods in extent, which he says belongs to him, and ofwhich he alleges the defendants have taken unlawful possession.
He asks that they may be ejected and he placed in possession.
This, therefore, is an action rci vindicatio by a person who allegesthat he is the owner of certain immovable property to vindicatethat property. The defendants allege that the land is an ancientvillage burial ground, and has been so used for nearly onehundred years past. At the trial the plaintiff gave evidence andproduced the deed under which he had purchased in 1894 anestate of some 9 acres, which within the boundaries set out inthe conveyance included this piece of land. He also produceda title deed of 1864 by which this estate had been conveyedto his vendor. Apparently the estate has been cultivated as acoconut plantation, but this small plot of land in dispute hasnever been planted. To support his case he called a witness,who, however, proved the case for the defendant, for he statedthat this plot of ground had been used for burial purposes by thevillagers for generations. He said his mother and wife had beenburied there not more than three years ago; that it was fencedoff from the rest of the estate, and had been so for a very longtime, for he remembered the fact when he was a boy. He statedthat he was now thirty years of age, so that it would appear fromhis evidence that this plot had been fenced off from the rest ofthe land for at least twenty years. In this state of things we arebound to assume that this piece of land was dedicated by theowner a long time ago for the purpose of a burial ground. Noone has ever objected to a corpse being buried there, and I saywe are bound to assume that burials have taken place with theapproval of the owners of the soil. It seems to me that thatconstitutes this burial ground a res religiosa, and by the law ofthis Island a res religiosa is res nullius—no one’s property.
As Van Leeuwen states, extra commercium ita ut plane nulliusin bcmis sint nee alicujus fieri possint, sunt res sacra religiosaet res sancta (C. F. 2, 1, 10, and Voet, 2, 7, 4). That being so, theconveyance of 1894 did not pass any title to the purchaser, andhe cannot make it the subject of an action rei vindicatio.
In my opinion, therefore, the Commissioner was right indismissing the action.
PULLENAYAGAM v. FERNANDO