Definition of boundaries - Rei Vindicatio action - Difference - Ingredients necessary for an action finium regundorim - No averment - Fatal?
Sri Lanka Law Reports
2013 - Volume 1 , Page No - 94
SOMAWATHIE AND OTHERS VS. ILLANGAKOON
SUPREME COURT
GAMINI AMARATUNGA, J.
IMAM,J.
SURESHCHANDRA, J .
SC 140/2009
SC HCCA/LA 26/2009
CP/HCCA/231/02 (F)
DC HATTON 102/L
OCTOBER 5th, 2011
Definition of boundaries - Rei Vindicatio
action - Difference - Ingredients necessary for an action finium regundorim -
No averment - Fatal?
The plaintiffs claiming to be co-owners of
the land instituted action against the defendant for the demarcation of the boundaries
and eviction of the defendant. The defendant claimed title on prescription. The
trial Court held with the plaintiff. In appeal the High Court (Civil Appeal)
dismissed the plaintiff's action setting aside the judgment on the ground that,
the action filed was a rei vindicatio action and not an action for the
definition of boundaries.
Held:
(1) It is clear from the plaint and the
relief claimed therein, that the plaintiffs presented their case as a case for
definition of boundaries.
(2) Action for definition of boundaries,
known to the Roman Dutch Law as Actio finium regundorim lies whenever the
boundaries between the lands of adjacent owners have become uncertain either by
chance or by the act of adjoining owners or of a third party.
(3) Common law remedy of an action for the
definition of boundaries presupposes the prior existence of a common boundary
which has been obliterated by subsequent events.
4) In an action for the definition of
boundaries plaintiff has to aver (1) that an ascertainable common boundary
previously existed physically on the ground (2) that such common boundary has
been obliterated subsequently.
(5) In the plaint there is no averment
that a common boundary existed and that boundary got obliterated.
It is clear that the plaintiffs were
attempting to vindicate their title to the portion occupied by the defendants
through an action disguised as an action for the definition of boundaries.
Por Gamini Amaratunga, J.
"In the plaint, there was no prayer
for a declaration of title - the first prayer to the plaint was for the
demarcation of the boundaries, since the plaintiffs have not averred in their
plaint the ingredients necessary to institute an action for the definition of
boundaries, their action was misconceived in law and Court should not have
proceeded with the action in the form it was presented to Court"
APPEAL from the judgment of the High Court
[Civil Appeal], Central Province.
Cases referred to:
(1) Ponna vs. Muthuwa - 52 NLR 59
(2) Deeman Silva vs. Silva - 1997 2 Sri LR
382
Dr. Sunil Cooray for
plaintiff-respondent-appellant.
P. Peramunagama for
defendant-appellant-respondent.
July 2, 2012
GAMINI AMARATUNGA J.
This is an appeal, with leave to appeal
granted by this Court, against the judgment of the High Court of the Central
Province exercising civil appellate jurisdiction, (hereinafter referred to as
the High Court) allowing the appeal of the defendant and setting aside the
judgment of the learned District Judge and dismissing the plaint filed by the
plaintiffs in the District Court of Hatton.
Five plaintiffs claiming to be co-owners
of the land described in the schedule to the plaint filed action against the
defendant alleging that the latter who was in possession of a land adjoining
their land forcibly entered the southern portion of their (the plaintiffs')
land and prepared the ground to construct a building. In their plaint they have
pleaded that in view of the said act of the defendant a cause of action has
accrued to them to sue the defendant for the demarcation of the boundaries of
their land and to eject the defendant therefrom and to recover damages.
In the prayer the plaint, the plaintiffs
have prayed for an order demarcating the boundaries of their land, ejectment.
of the defendant from that land and for damages as quantified. in prayer 'C' of
the plaint.
The position taken up by the defendant in
her answer was that she and her predecessors in title had possessed the portion
of the land (alleged to have been the land to which she forcibly entered) for
over 47 years and as such she had acquired prescriptive title to the said
portion of the land.
After trial, the learned District Judge
gave judgment for the plaintiffs holding that the plaintiffs have proved their
title to the property but the defendant has failed to establish her
prescriptive title.
The defendant appealed to the High Court
(Civil Appellate). After hearing the appeal of the defendant, the
learned Judges of the High Court, having considered the averments in the
plaint, the relief claimed by the plaintiffs in their prayer to the plaint and
previous judicial decisions which highlight the matters to be averred in the
plaint in an action for definition of boundaries, have come to the conclusion
that the plaintiffs' action was not an action for definition of boundaries. The
learned High Court Judges have also observed that the plaintiffs have filed
this action to vindicate their title to the portion of land alleged to have
been forcibly occupied and appropriated by the defendant but the plaintiffs
have not prayed for a declaration of their title to that portion of land. It
was the conclusion of the learned High Court Judges that since the plaintiffs'
case lacked the facts and evidence necessary to maintain an action for
definition of boundaries the plaintiffs had no right to maintain this action
against the defendant as an action for definition of boundaries. Accordingly
the learned High Court Judges have set aside the judgment given by the learned
District Judge in favour of the plaintiffs and dismissed the plaintiffs plaints
with costs.
The plaintiffs sought leave to appeal from
this Court against the judgment of the High Court and leave to appeal was
granted on the following question of law.
"Have the learned Judges of the High
Court erred by holding that this is an action for definition of boundaries and
not a rei vindicatio action?
The learned Counsel for the defendant
respondent suggested the following question and it was accepted by Court.
"Have the learned High Court Judges
erred in law in not considering the merits of the case presented by the
parties?"
I shall first deal with the first question
of law formulated by the learned Counsel for the plaintiff-appellants.
According to the plaint the plaintiffs owned and possessed the land depicted in
plan No. 6074 dated 9-1-1932 made by J. C . Misso, licensed Surveyor, marked
Xl. On or about 17.12.1988 the defendant forcibly entered the southern portion
of that land and prepared a building site for the construction of a building. The
first plaintiff then filed a private information in the Primary Court of Hatton
under section 66 of the Primary Courts Procedure Act against the said forcible
dispossession by the defendant. Having set out those facts the plaintiffs in
paragraph 6 of their plaint had averred that" a cause of action has
accrued to the plaintiffs to sue the defendant for the demarcation of the
boundaries of the said land and premises, the ejectment of the defendant
therefrom and for recovery of damages."
The prayer (a) to the plaint is that the
plaintiffs pray "for a demarcation of the boundaries of the said land and
premises described in the schedule hereto."
The second relief prayed for in the prayer
to the plaint is that the defendant be ejected from the said land. So the
granting of the relief of ejectment depends on the granting of relief claimed
in paragraph (a) of the prayer to the plaint, namely demarcation of boundaries
of the plaintiffs' land.
It is clear from the plaint and the relief
claimed therein, that the plaintiffs presented their case as a case for
definition of boundaries. In view of this it is necessary to examine the
circumstances in which an owner of land can bring an action against the owner
of an adjacent land for the definition of boundaries between their lands.
The action for definition of boundaries,
known to the Roman Dutch Law as actio finium regundorum. lies whenever the
boundaries between the lands of adjacent owners have become uncertain either by
chance or by the act of adjoining owners or of a third party . (Voet's
Pandects, Book 1o Title 1 Section 1 (a)) In the case of Ponna vs. Muthuwa(1),
it was held that the common law remedy of an action for the definition of
boundaries presupposes the prior existence of a common boundary which has been
obliterated by subsequent events.
In an action for the definition of the
boundaries plaintiff has to aver (i) that an ascertainable common boundary
previously existed physically on the ground and (ii) that such common
boundary had been obliterated subsequently. Deeman Silva vs. Silva(2).
In the plaint there was no averment that a
common boundary existed between the land of the plaintiffs and the defendant
and that boundary has got obliterated. The plaintiffs' complaint was that the
defendant forcibly entered into a portion of their land and dispossessed them.
This is clear from document X3 , the affidavit filed by the 1st plaintiff along
with her private information filed in the Primary Court of Hatton in respect of
the same forcible dispossession. Thus it is clear that the plaintiffs were
attempting to vindicate their title to the portion of land forcibly occupied by
the defendant through an action designated as an action for the definition of
boundaries. The proper remedy for them would have been an action for
declaration of title to the disputed portion of land. As already stated the
first prayer of the plaint was for the demarcation of the boundaries of the
said land and premises described in schedule to the plaint. Granting of all
other reliefs prayed for in the plaint depended on the definition of the
boundaries of the plaintiffs' land.
Since the plaintiffs had not averred in
their plaint the ingredients necessary to constitute an action for the
definition of boundaries, their action was misconceived in law and the court
should not have proceeded with the action in the form it was presented to
Court.
At the time of framing issues, plaintiffs
have framed issues to convert their case into a rei vindicatio action. The gist
of the issues framed by the plaintiffs are as follows:
1. Whether the plaintiffs are the owners
of the land described in the schedule to the plaint?
2. Whether the defendant, without any
right or title to the said land forcibly entered into a portion of that land
and is in possession thereof?
3. Whether the portion of land in unlawful
possession of the defendant is depicted as lot 6 in the plan No. 4139A dated
6.10.1994 made by C. Gnanapragasam, Licensed Surveyor?
4. If so, is the said lot No. 6 a part of
the land described in the schedule to the plaint?
5. If one or more of the above issues are
decided in favour of the plaintiffs are they entitled to the relief claimed in
the plaint?
The question to be considered is even if
issues 1 - 4 are answered in favour of the plaintiffs, can the Court grant the
relief prayed for in the plaint?
As I have already stated the relief
claimed in prayer (A) to the plaint is demarcation of the boundaries of the
land described in the schedule to the plaint. Even if issues 1 - 4 are decided
in favour of the plaintiffs, still in the absence of averments in the plaint
necessary to properly constitute an action for the demarcation of the
boundaries and the evidence necessary to sustain a case for the demarcation of
the boundaries the Court cannot grant the relief prayed for in paragraph (a) of
the plaint. If the Court cannot in law grant that relief it necessarily follows
that the Court cannot grant any other reliefs which are consequential reliefs
which depend on the relief sought in prayer (a) to the plaint. Accordingly the
trial Judge could not have answered the plaintiffs issue No. 5 in the
affirmative.
For the reasons set out above I answer the
first question of law in the negative and affirm the learned High Court Judges'
decision allowing the appeal and dismissing the plaintiffs plaint. Accordingly
this appeal is dismissed without cost. In view of this conclusion it is not
necessary to consider the question of law raised on behalf of the defendant -
appellant respondent.
IMAM, J .- I agree
SURESH CHANDRA J. - I agree.
Appeal dismissed.
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