122-NLR-NLR-V-69-M.-JACOLIS-APPU-et-al.-Appellants-and-W.-A.-DAVID-PERERA-Respondent.pdf
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H- N. G. FERNANDO, C.J—Sinniahpillai v. Abdul Coder
_ Present: Siva Supramaniam, J.
M. JACOLIS APPU et al., Appellants, and W. A. DAVIDPERERA, Respondent
S. C. 66(1966—C. E. Gampaha, 9074/A
Action for definition of boundaries—Scope—Jurisdiction of Court of Requests.
An action for definition of boundaries presupposes that the parties to theaction are admittedly owners or occupiers of contiguous lands. Such an actioncannot be maintained in a Court of Requests if the plaintiff is in reality seekinga declaration of title to one of the lands which is worth more than Rs. 500.
A.PPEAL from a judgment of the Court of Requests, Gampaha.
Frederick W. Obeyeselcere, for the Defendants-Appellants.
R. Dias Bandaranaike, for the Plaintiff-Respondent.
Cur. adv. twit.
6TVA SUPRAMANTAM, J .—Jacolia Appu v. David Per era
649
March 15, 1967. Siva Sctpbamaxiam, J.—
The plaintiff-respondent to this appeal, claiming to be the ownerof the allotment of land depicted as lot 4b on Plan No. 1194 (P8) dated8.2.1962 made by A. R. C. Kiel, Licensed Surveyor, instituted this actionfor a definition of the western boundary of that allotment, namely,the boundary separating that allotment from the allotment markedLot 4a on the said plan. He averred in the plaint that the defendants-appellants were in possession of lot 4a, and, about two months priorto the date of the action, pulled out a live fence that existed betweenthe two lots and obliterated the boundary. The appellants deniedthat there had been any fence separating the two lots and stated thatthey had been in possession of lots 4a and 4b as one lot for a period ofover twenty years and claimed to have acquired prescriptive right andtitle to the said lot.
Lots 4a and 4b had originally formed part of a larger land which wasthe subject matter of a Partition action in Case No. 51206 D. C. Colombo.In terms of the Final decree and the scheme of partition in the saidcase, lot 4 on plan No. 172 {P6) dated 1st October 1940 made byV. Karthigesu, Licensed Surveyor, was allotted to the 2nd plaintiff in thesaid action. The respondent claimed to be the successor in title of theaforesaid 2nd plaintiff. Lots 4a and 4b constitute the southern portionof lot 4 on the said plan. The mother of the 2nd appellant who was alsoa party to the said action was allotted lot 5.
In case No. 8287/L. D. C. Gampaha, the respondent as well as certainother persons who claimed to be the owners of lots 6-15 on the saidPartition plan P6 sued the appellants on 1st February 1960 for a definitionof the boundary between lot 5 and lot 6. It was averred in the plaintthat the appellants had been in wrongful occupation of some of the lots6-15 for a period of eight months prior to the date of the action. On acommission issued in the said action to M. S. Fernando, Li-, ensed Surveyor,a plan No. 1578 dated 20th May 1960 (D2d) was prepared by him.Lot3 5-15 on the said plan correspond to lots 5-15 on the partition planP6. Lot 4 on the said plan which forms the northern boundary of lots5-15 forms the southern portion of lot 4 on the Partition plan P6 andcorresponds to lots 4a and 4b on P8. In the answer filed by theappellants in the said case (D2b) they stated that they were in possessionof lots 4-8 on the said plan No. 1578 (D2d) since 1942 and had acquiredprescriptive right and title to the said lots. They claimed all the buildingsand plantations on the said lots, and pleaded that the respondent and theother plaintiffs were attempting, in the guise of an action for definitionof boundaries, to.claim title to premises, possession of which they hadlost many years prior to the date of the action. Among the issues onwhich the trial proceeded were :—
(а)Are the defendants the owners of lots 4 to 8 in plan No. 1578 filed
of record ?
(б)Have they acquired prescriptive title thereto ?S60
SIVA SUPRAMANIAM, J.—Jacolis Appu v. David Perera
Daring the course of the trial the case was settled and the plaintiff’saction was, by consent of the parties, dismissed on 2.11.1960.
The respondent, thereafter, on 27th July 1961, instituted anotheraction against the appellants—Case No. 9207 /D. C. Gampaha—stating thatthe appellants had on or about the 13th day of December, 1960, “ forciblyand unlawfully entered into the southern portion of lot 4 on plan 172 ”(P6) and praying, inter alia, for a declaration of title to the said portionand for ejectment of the appellants therefrom. The portion of landreferred to was described in the schedule to the plaint as follows :—
“ All that southern portion of lot 4 depicted in plan No. 172 dated1st October 1940… .bounded on the North by the remaining portionof lot 4 belonging to the plaintiff, on the East by cart road, on theSouth by lots 5 to 15 depicted on the said plan No. 172 and on theWest by cart road, containing in extent about one and a half roods. ’ ’
On a commission issued in the said case, surveyor Kiel prepared planNo. 1194 dated 8th February 1962 (P8)—Lots 4a and 4b on the saidplan correspond to lot 4 on plan 1578 (D2d). According to his reportP3c, a superimposition of plan No. 172 (P6) on his plan 1194 showed that4a in extent 19$ perches was an encroachment by the 1st and 2nddefendants (the present appellants). He also stated in his report thatLot 4b in extent 31 perches was in plaintiff’s (the present respondent’s)possession. There was no boundary in existence between lots 4a and4b, and the surveyor’s report in regard to the possession of Lot 4b wasapparently what he had gathered from the respondent at the survey as,according to the report, the appellants were not present. The appellants,in their answer (P3b), re-asserted that they had been in possession ofLots 4a to 8 on Plan 1194, for over ten years and prayed for a decla-ration of title in respect of the said lots in their favour. In paragraph3 (a) of the answer they stated that lot 4a in plan 1194 was identicalwith lot 4 in plan 1578. This was obviously an error as lot 4 in the latterplan comprised of lots 4a and 4b of plan 1194. After trial, the plain-tiff’s action in respect of lot 4a was dismissed on 29th May 1963. Therewas no reference in the decree in regard to the rights of the parties tolot 4b, although the land described in the schedule to the plaint inrespect of w’hich a declaration of title was prayed for by the respondentcomprised of lots 4A and 4b.
The respondent, thereafter, instituted the present case on 14th October1964 praying for a definition of boundaries between lots 4a and 4b.The learned Commissioner of Requests gave judgement in favour of theplaintiff and the defendants have appealed therefrom. The Commissionerhas held that the respondent “ had possessed lots 2 and 4 in FinalPartition plan P6 since 1938 without interference when the defendantsencroached upon a portion of lot 4 of this land in 1961. ” In arriving athis conclusion that the respondent had established his title to andpossession of Lot 4b so as to entitle him to maintain this action for defi-nition of boundaries, the leaaned Commissioner appears to have been
SIVA SUPRAMANIAM, J.—Jaeolia Appu v. David Percra
551
influenced considerably by his finding that the appellants had notpreferred any claim to lot 4B in the earlier action No. 9207/L. He statesin the course of his judgment as follows :—“ It is, however, significant thatin case 9207/L filed in 1961, he did not prefer any claim to lot 4B. If infact he possessed lot 4B since 1938, he would have preferred a claim tothis lot as well when he filed his answer in that case. Vide his answerP3B where he preferred a claim to lots 4A and 5 to 8 in Plan P8. Thesurveyor’s report P3c filed in that case shows that the lot 4B was in thepossession of the plaintiff. The probabilities clearly are that the defend-ants did not possess any portion of lot 4 B and that was why no claim
was preferred by them to that lotI feel that the defendant
has set up a claim to lot 4B for the first time in this action with a viewto wrongfully claim lot 4B as well. ” In reaching the foregoing con-clusions, the learned Commissioner has clearly misdirected himself on thefacts. In the first place, in the answer filed by the appellants in caseNo. 9207/L, they claimed and prayed for a declaration of title in theirfavour to lots 4 A to 8 and not lots 4A and 5 to 8. The expression “ lots4A to 8 ” will undoubtedly include lot 4B. The appellants also made itclear in paragraph 3 (a) of their answer that they were claiming theportion depicted as Lot 4 on plan 1578 filed in case No. 8287. Lot 4on plan 1578 unquestionably includes lot 4B . The learned Commissionerdoes not appear to have correctly appreciated the significance of theplan 1578 and the connected documents when he brushed them aside asirrelevant. It is clear that in the very first action between the partiesin 1960 the appellants laid claim to the. portion of land now described aslot 4B. Surveyor Kiel was not called as a witness at the present trialand the statement contained in his report P3c that the plaintiff was inpossession of lot 4B was clearly hearsay and should not have been actedupon by the learned Commis ioner. As stated earlier, the appellantswere not present at Kiel’s survey and he had not questioned theappellants. The respondent’s own amended plaint in Case No. 9207/L setout that the appellants were in wrongful possession of the portion ofland on plan 172 (P6) which was bounded on the south by lots 5 to 15 andon the north by the remaining portion of lot 4. The portion of whichthe appellants were said to be in wrongful possession therefore includedlot 4B. That the respondent, at a later stage of the action, decided toconfine his claim to lot 4A only cannot affect the appellants’ positionthat they were entitled to and were in possession of Lot 4B as well.
It is clear from the facts which I have set out above in some detail thatat least from the time action No. 8287 was instituted in February 1960, thetitle to the portion now described as lot 4B was in dispute between theparties. The respondent was aware of the claim put forward by theappellants. In seeking a definition of boundaries between lots 4A and4B the respondent was in reality seeking a declaration of title to lot 4B.An action for definition of boundaries presupposes that the parties tothe action are admittedly owners or occupiers of contiguous lands.The question of title raised in issues Nos. 1 and 5 at the trial was notincidental to the question of the respondent’s right to have the boundary
S5S
SIVA SUPRAMANIAM, J.—Jaeolit Appu «. ZXmrf P«r*ru
defined but was the real crux of the dispute between the parties. Thedisputed extent of land was the whole of lot 4B which, according to therespondent himself, was worth more than Rs. 600. The Court ofRequests, therefore, had no jurisdiction to hear and determine the action.Issue No. 6 should have been answered in favour of the appellants.
I set aside the judgment and decree and dismiss the plaintiff*respondent’s action with costs in both Courts.
Appeal allowed.