Maria Et Al. V. Fernando Et Al.

Present: Pereira J.

MARIA et al. v. FERNANDO et al.

259-C. R. Negombo, 20, 382.

Action for definition of boundaries--when it lies.

An action for defining and settling boundaries was provided for by the Roman-Dutch law whenever the boundaries of lands belonging to different owners had become uncertain, whether accidentally or through the act of the owners or some third person. The onus of proving the essential facts in such an action was on the plaintiff, but the action was not allowed to one co-owner against another when a boundary of the common property and one of a property belonging exclusively to one of the co-owners had become " mixed up. "

Under our procedure an action for the definition of boundaries would be a proceeding in the nature of an application for relief referred to in section 6 of the Civil Procedure Code, the fact justifying the application being that the boundary between the lands of the parties has become uncertain. No specific " cause of action, " as the term is defined in section 5, is necessary.

THE first plaintiff (wife of second plaintiff) was the owner of the land called Ambagahawatta. She averred in her plaint-

(2) The first and second defendants are the owners of the land to the north of that of the plaintiffs, and all the defendants jointly with the plaintiffs are the owners of the land to the west of that of the plaintiffs; the boundary limits on the north and west of the plaintiffs' land having been from time to time shifted by these defendants, there is now no proper fence or landmark defining the said boundaries.

(3) The defendants, though often thereto requested, do not consent to have the said boundaries defined and to have a proper fence erected.

The plaintiff prayed: -

(a) That a commissioner be appointed to define the proper boundaries between the plaintiffs' land and those to the north and west of their land, &c.

The defendants, first to third, merely denied that they objected to the erection of a fence along plaintiffs' boundaries; and fourth defendant alleged that there was a good live fence between his land and that of the plaintiffs.

The following issues were framed: -

(1) Is there a cause of action disclosed in the plaint?

(2) Has plaintiff requested defendants to have the boundaries defined?

The Commissioner (J. R. Walters, Esq. ) made the following order: -

Some overt act of obstruction must, in my opinion, be alleged to justify such an action us this, viz., that plaintiff has sought to define his boundaries and has been prevented.

The plaintiff appealed.

A. L. R Aserappa, for the plaintiffs, appellants. -The action was wrongly dismissed. An action for definition of boundaries lies under the Roman-Dutch law when the boundaries between the lands of neighbours become uncertain and doubtful owing to any cause. (Voet, bk. 10, tit. 1. ) The mere fact that defendants say that the boundary is defined will not justify a dismissal of the action without trial of the issue raised by the plaintiffs as to the doubtful character of the boundary between the two lands.

De Zoysa, for the first and third defendants, respondents, -Even if an action for definition of boundaries would lie in a case where the boundaries were not defined and were not ascertainable, it was not open to the plaintiffs to bring such an action, as there were old fences in existence which marks the limit between the plaintiffs' land and that of the defendants,

G. Koch, for the fourth defendant.

Cur. adv. vult.

July 25, 1913. Pereira J. -

This is intended to be an action for the definition of boundaries. It is a very common form of action under the Roman-Dutch law, and it has been recognized by this Court as obtaining in Ceylon. The plaint in the present case, however, has been so clumsily drawn as very nearly to defeat the object of the action, and the whole case has been proceeded with in Court below under some misconception as to the exact scope o

Click Here to Read the rest of this document