The Civil Appellate High Court of Mount Lavinia has delivered a judgment upholding the prescriptive rights of a defendant who occupied a disputed property for nearly 40 years against plaintiff’s documentary rights to the said property.
The Plaintiff had instituted an action before Mount Lavinia District Court for his title (ownership) to be established over a property in dispute through a Rei Vindicatio action, a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. The plaintiff further sought an order to evict the Defendants and his affiliates from the said property in dispute.
Upon dismissal of the said action, the aggrieved Plaintiff had appealed to the Civil Appellate High Court of Mount Lavinia, seeking an order to set aside the District Court’s judgment.
The appeal in the Civil Appellate High Court was argued before JudgesWickum AthulaKaluarachchi and T.D. Gunasekara where the Plaintiff-Appellant was represented by Senior Counsel Roshan Dayaratne with Counsel P. Jayawardena. The 1st Defendant-Respondent was represented by Senior Counsel Ian Fernando with Counsel Sumudu Ratnayakeunder the instructions of Derek Fernando Associates. The second Defendant-Respondent was represented by Counsel LasithaKanuwanaarachchi with Michele Jayasinhe.
It was contended that the Defendants had occupied the said disputed property for nearly 40 years, thus establishing their prescriptive rights over the property in dispute. However, the Plaintiff had sought and instituted the Rei Vindicatio action based on his documentary right over the property.
However, the judgment of the said appeal was held in favour of the Defendants, upholding the judgment of the Learned District Judge, dismissing the Plaintiff’s action.
In a Rei Vindicatio action, the burden of proof lies on the Plaintiff to establish the following: accurate identification of the subject matter (property), establish his legal right over the property, establish that the subject matter (property) in which the Defendant is in occupation is Plaintiff’s property or is disputing the Plaintiff’s right over his property.
In this case, it was concluded that the Plaintiff has only established that the Plaintiff and the Defendants are disputing in relation to the same subject matter, but not that the Plaintiff has title over the said subject matter.
It was also highlighted that a deed which the Plaintiff relied on to establish his title, dealing with undivided rights could not be relied upon as the basis of sub-division was not shown, in which event its legality cannot be ascertained.
It was emphasized that the survey had been conducted by the Licensed Surveyor solely upon the request of the applicant and as recognized by him at that time, based on the boundaries shown by the said applicant (Plaintiff) and the respective deed.
Further, it was revealed the corresponding Plan was prepared without any sanction from the Surveyor General or without a Court commission although it may not be essential for the identification of the subject matter.
