SOMAWATHI AND 5 OTHERS
VS.
ILANGAKOON

SUPREME COURT
GAMINI AMARATUNGA, J.
IMAM,J.AND
SURESH CHANDRA J.
S.C.APPEAL NO.140/2009
SC/HCCAILA.26/2009
CP/HCCA/231/02 (F)
D. C. HATTON 102/L
OCTOBER 5TH, 2011.

Action for definition of boundaries - actio finium regundorum - Evidence necessary to maintain an action for definition of boundaries.

The Plaintiffs have prayed for an order for the demarcation of the boundaries of their land, to eject the defendant from that land and for damages. The Defendant's position was that she and her predecessors in title had possessed the disputed portion of the land, alleged to have been the land to which the Defendant had forcibly entered for well 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). The High Court concluded that the Plantiffs' case lacked the facts and evidence necessary to maintain an action for definition of boundaries against the Defendant. Accordingly, the High Court set aside the judgment given by the District Judge in favour of the Plaintiffs and dismissed the Plaintiffs' action. The Plaintiffs appealed to the Supreme Court against the Judgment of the High Court and leave to appeal was granted by the Supreme Court on the following questions of law -

(i) Have the learned Judges of the High Court erred by holding that this is an action for definition of boundaries and not a reivindicatian action?

(ii) Have the learned High Court Judges erred in law in not considering the merits of the case presented by the parties ?

Held:

(1) The action for definition of boundaries, known to the Roman Dutch Law as actio finium regundorom 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.

(2) In an action for the definition of the boundaries the 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.

(3) 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.

(4) 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 the plaint.

APPEAL from the judgment of the High Court of the Central Province exercising Civil Appellate jurisdiction.

Cases referred to :

(1) Ponna V. Muthuwa 52 NLR 59

(2) Deeman Silva V. Silva (1997) 2 Sri LR. 382

Dr. Sunil Cooray for the Plaintiff - Respondent - Appellants

P. Peramunagama for the Defendant- Appellant - Respondent

Cur. adv. vult.

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 c