SRI LANKA INSURANCE CORPORATION

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 wa

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