27 September 2023 10:25 am Views - 649
By Lakmal Sooriyagoda
The Supreme Court has delivered a judgment upholding the prescriptive rights of a defendant who occupied a disputed property for nearly 30 years over a land claimed by a plaintiff.
Supreme Court Justice Shiran Goonaratne observed that the plaintiff has failed to fulfill the obligations and duties and duly discharge the burden of proof, which is required of a plaintiff in a rei vindicatio 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 the plaintiff’s property or is disputing the plaintiff’s right over his property.
The plaintiff Jezeema Beebi, a resident of Elvitigala Mawatha in Colombo 5 had filed action against defendant Gothanayagi in the Colombo District Court against the defendant seeking a declaration that she is entitled to the particular property and the defendant Gothanayagi is not entitled to the said property.
In its judgment, the District Court in 2009 held that the defendant has established uninterrupted possession of over 30 years to the said property and therefore acquired prescriptive title over the said land. The plaintiff subsequently filed an appeal in the High Court exercising civil appellate jurisdiction challenging the District Court judgment. In 2014, the Civil Appellate High Court affirmed the District Court judgment and dismissed the appeal with cost. This appeal has come before the Supreme Court being aggrieved by the judgment of the Civil Appellate High Court. The plaintiff alleged that the Civil Appellate High Court misdirected itself in law by erroneously determining that the defendant has established undisturbed, uninterrupted, and adverse possession.
Citing the decision in Peiris Vs. Sinnathamby, the Supreme Court stated that in a rei vindicatio action claiming a declaration of title and ejectment it is a paramount duty on the part of the appellant to establish correct boundaries in order to identify the Corpus.
“Therefore, it is obviously clear that the Appellant has failed to produce evidence to identify the land in dispute” and that “this being an action rei vindicatio there is a greater and heavy burden on the part of the Appellant to prove not only that he has a dominion to the land in dispute but also the specific precise and definite boundaries when claiming a declaration of title,” the Supreme Court observed.
The Supreme Court three-judge-bench comprised Justices Preethi Padman Surasena, Shiran Goonaratne and Arjuna Obeysekara.