Case Analysis: Alfred Fernando v. Julian Fernando (1987) 2 Sri LR 78

 

This important Court of Appeal decision explores the legal parameters of actions for the definition of boundaries—actio finium regundorum—under Sri Lankan law, elucidating the rights of co-owners, the nature of proof required, and the limitations of such actions. It is frequently cited for its comprehensive synthesis of principle and its distinction between boundary actions and actions for declaring title.

Facts of the Case

The plaintiff, Alfred Fernando, and the defendant, Julian Fernando, were co-owners of contiguous lands, both known as Kongahawatte, in Ja-ela. The plaintiff alleged the boundary had become "obliterated and undefined," seeking the court’s intervention to re-establish the line between the two tracts. Central to the dispute was a strip, marked as Lot A (2.31 perches), possession of which and the three coconut trees located thereon was claimed by the defendant.

In pursuit of redrawing the boundary, the plaintiff relied on an old plan from 1879 and subsequent plans prepared by surveyors in 1973 and 1976. The defendant, however, contended that the physical boundary remained evident—a live fence demarcated the boundary—and that the plaintiff’s suit was, in substance, one to vindicate his title to more land, not for a mere definition of boundaries.

Key Legal Issues and Major Points

1. Can a Co-owner Maintain an Action for Definition of Boundaries?

The Court reaffirmed that a co-owner may indeed bring a boundary action against a neighboring co-owner:

“A co-owner can sue his neighbour, also a co-owner of the adjacent land for definition of boundaries… but he takes a risk because even if he is successful, the decree in his favour will not bind the other co-owners of the adjacent land.”

In doing so, the court referenced Jacolis Appu v. David Perera and clarified that the addition of all co-owners is not mandatory, although not including them weakens the decree’s enforceability against absentees[89-90].

2. Burden of Proof in Boundary Actions

The judgment is unequivocal on the onus lying with the plaintiff:

“The burden of proving the essential facts in a suit for definition of boundaries is on the plaintiff.”

This includes, crucially, proof of a prior boundary which has become uncertain.

3. Requisites of an Action for Definition of Boundaries

The common law remedy assumes:

• There was a pre-existing common boundary now uncertain,

• The action is not a vehicle to create a boundary where none existed,

• It is not a substitute for an action to vindicate title (rei vindicatio).

As stated by the Court (citing Ponna v. Muthuwa and Voet):

“Such proceedings… presuppose the prior existence of a common boundary which has been obliterated by some subsequent event. The remedy cannot be sought for the purpose of creating… a line of demarcation which had never been there before.”

4. Propriety (or Impropriety) of Using Boundary Actions to Assert Title

The Court expressly rejected the use of a boundary action as a cloak for vindicating title:

“In the guise of an action for definition of boundaries a plaintiff cannot vindicate title to an encroachment.”

Here, the plaintiff’s failure to establish the existence of a prior boundary, and the evidence that the defendant possessed the disputed land (including planting and benefiting from the coconut trees), led the court to find that:

“In the guise of having his eastern boundary defined, the plaintiff was in fact seeking to have himself declared entitled to Lot A.”

Thus, the correct remedy was not a boundary action, but a rei vindicatio suit.

5. The Evidentiary Deficiencies

A significant portion of the Court’s reasoning rested on the plaintiff’s failure to prove the boundaries due to non-production or non-proof of critical survey plans and inconsistent testimony regarding physical boundaries:

“Because of the failure of the plaintiff to produce the plan of 1879 and prove the plan of 1973 the correctness of Dharmawardena's plan No. 823 is also in doubt.”

Further, the plaintiff’s late and inconsistent complaints, and the defendant’s exclusive, long-term possession, weighed heavily against him.

Key Quotes

• On the risk of not joining all co-owners:
  “The plaintiff does however take a risk when he does not add them as defendants for even if he is successful… none of the other co-owners to that land will be bound by the decree…”

• On the true nature of a boundary action:
  “An action for the definition of boundaries presupposes that the parties to the action are admittedly owners or occupiers of contiguous lands. The question of title… was not incidental… but was the real crux of the dispute between the parties.”

• On the inability to declare title in a boundary action:
  “In the guise of having his eastern boundary defined, the plaintiff was in fact seeking to have himself declared entitled to Lot A…”

Conclusion

The appeal was dismissed, with the Court affirming the trial decision and awarding costs against the plaintiff.

Legal Takeaways for Practitioners

• A boundary action requires clear proof of an obliterated, previously existing boundary.

• Co-owners can bring such an action but risk unenforceability against other unjoined co-owners.

• Courts will reject attempts to use the device of a boundary action to accomplish what must be done in a rei vindicatio (title) suit.

• Always strictly prove all survey plans and foundational facts if seeking boundary definition.

• Possession and long-term occupation, especially with cultivation, can support a defense based on prescriptive acquisition.

This judgment remains a touchstone on the law relating to boundaries, co-ownership, and the proper framing of legal actions concerning land disputes.