SIRIMAWATHIE

Vs.

MOHIDEEN

SUPREME COURT
SURASENA, J.
WENGAPPULI, J.
SAMAYAWARDHENA, J.
SC/APPEAL/116/2013
SC/HCCA/LA/346/2010
WP/HCCA/30/2003 (F)
DC GAMPAHA 36607/L
OCTOBER 21, 2021

Rei vindicatio action-Identification of the corpus

The plaintiff filed action seeking a declaration of title to the land described in the schedule to the plaint, ejectment of the defendant therefrom and damages. The defendant filed answer with copies of her title deed and the plan seeking dismissal of the plaintiff's action on the basis that the plaintiff's title deeds relate to a different land and not to the land which she is in possession of. After trial the District Court entered judgment for the plaintiff. On appeal, the High Court affirmed it. The defendant appealed to the Supreme Court. The only question before the Supreme Court was whether the land in suit had been properly identified.

Held:

1. The identification of the land is of paramount importance for the plaintiff to succeed in a rei vindicatio action. The examination of title does not arise until the land the plaintiff claims title to is properly

identified. The burden is on the plaintiff, not on the defendant, to identify the land in suit. If the plaintiff fails to identify the land he claims dominium over, his action must fail.

2. It was clear from the plaintiff's deeds that Millagahawatta was a larger land comprising more than 10 acres and the defendant claimed a divided and defined potion of that larger land. There was no plan prepared to identify the plaintiff's portion of the land at or before the execution of the plaintiff's deed or after the institution of the action despite the defendant having raised the issue of identification of the land at the earliest possible opportunity.

3. The burden is on the plaintiff who filed the action to eject the defendant from the land to take out a commission to prepare a plan to depict the land he claims and to superimpose the defendant's plan thereon. This has not been done.

4. In the execution of the decree, the fiscal cannot purport to obtain the assistance of a surveyor to identify the land in order to eject the defendant from it when the defendant has contested the case of the plaintiff on the premise that she was not in possession of the land described in the schedule to the plaint. Under such circumstances, in the first place, there is no executable decree.

5. The District Court could not have simply entered judgment for the plaintiff on the basis that the land claimed by the plaintiff is admittedly different from the land claimed by the defendant. That was the defendant's defence against her ejectment from the land and rightly so.

6. The defendant had a strong case: she had title deeds, a plan and she was in possession of the land. She is presumed to have title to the land she is in possession of and it was for the plaintiff to rebut that presumption which he has failed to do.

Cases referred to:

1. Balasooriya v. Neelakanthi [2017] BLR 202
2. Punchiappuhamy v. Dingiribanda [2016] BLR 40
3. David v. Gnanawathie [2000] 2 Sri LR 352
4. Gunasekera v. Punchimenike [2002) 2 Sri LR 43
5. Peeris v. Savunhamy (1951) 54 NLR 207
6. Latheef v. Mansoor [2010] 2 Sri LR 333 at 378

APPEAL from the Judgment of the High Court of Gampaha.

Rasika Dissanayake with Sandun Senadhipathi for the Substituted Defendant-Appellant-Appellant.

lkram Mohamed, P.C., with Lal Matarage and Vinura Jayawardene for the Substituted Plaintiff-Respondent-Respondents.

cur. adv. vult.

November 26, 2021

SAMAYAWARDHENA, J.

The plaintiff filed this action seeking a declaration of title to the land described in the schedule to the plaint, ejectment of the defendant therefrom and damages. The defendant filed answer seeking dismissal of the action. After trial the District Court entered judgment for the plaintiff. On appeal, the High Court affirmed it. This appeal