Case laws on rei vindication
Re vindicatio - burden on the plaintiff to prove the title
-------------
It was held in R.M. Dharmadasa v. R.M.K. Suddahamy and Others (C.A. Case No.20/2000 F decided on 08.01.2018) that mere Crown Grant will not confer title without clear proof of devolution of title flowing from it.
In this case, the Plaintiff has failed to establish his title to the said lands, though he has mentioned the Crown Grants issued to his predecessors.
Re Vindication - identity of the corpus - burden of proof
--------------------
"Identifying a land by its boundaries has been the practice for a long period of time and I am of the view that it can still be considered as a valid method in identifying lands."
Pattiyage Samie and Others v. Pathira Kankanamge Dharshana Shantha and Others [C. A. 1236/2000(F) decided on 09.08.2019]
Rei vindicatio action & an action against a tenant holding over – Burden of proof – Balance of Probability - false statement and/or suppresses material facts or attempts to mislead a court:
SC Appeal No. 145/2013, SC Minutes of 15.03.2021.
per Hon. S. Thurairaja, PC, J.
"Taking into consideration the above passage and the judgments in Bandara v Piyasena (supra) and Mary Beatrice (supra) it could be seen that this is an action in relation to the fulfilment or non-fulfilment of contractual obligations arsing between a lessor and lessee. Therefore, this is an action filed against a tenant holding over. Hence a distinction can be made between a rei vindicatio action and an action against a tenant holding over." [Vide Pathirana v Jayasundera 58 NLR 169 at 173] - (Vide page 6)
…..
"This shows that the established law or procedure in identifying the extent of a corpus in a dispute takes into consideration statement of boundaries in title deeds of not only the land in dispute but the adjoining lands even though they are strangers to the action and both oral and documentary evidence is considered on a balance of probabilities. As found in any rei vindicatio action, the burden of proof in an action against a tenant holding over is on the plaintiff and they need to prove such an onus on a balance of probability. [Vide Loku Menike et al. v Gunasekare (1997) 2 SLR 281]" - (Vide pg.
See:
- Bandara v Piyasena - 77 NLR 102.
- Mary Beatrice et al. v Seneviratne - (1997) 1 SLR 197
Law of Civil Procedure - pleadings & issues - "Parties can plead anything in the pleadings. But they do not want all what they plead to put in issue at the trial. Ultimately the case is decided on the issues raised." - prescription as a defence - what is necessary? re vindicatio action
"Even though the appellate Court can raise an issue in deciding the appeal in a rare case, the appellate Court will not, unless there are compelling, cogent reasons to do so, raise an issue on prescription in a rei vindication action, which is purely a question of fact as opposed to a question of law. Plea of prescription must (a) specifically be pleaded and (b) put in issue in the trial Court. Both shall be done if one is to succeed on prescription. Far from raising a plea of prescription in appeal, plea of prescription cannot be raised even in the middle of the trial as you go along. It is a special plea, which defeats, if proved, the title of the true owner, which is a serious thing."
Udumil Marikkar Sara Umma v. Mohideen Ebrahim Siththi Afilar Umma (CA/350/2000 (F) decided on 13.03.2019)
Rei vindicatio - burden of proof - what is the required proof? nature of a rei vindicatio action
(a) A rei vindicatio action is not an action filed against the whole world. In modern law, rei vindicatio action is an action in personam and not an action in rem in the popular sense.
(b) In a rei vindicatio action, the plaintiff needs only to prove his case on a balance of probabilities, and no higher degree of proof is required.
(c) If there is no challenge, in a rei vindicatio action, the mere production of the title deed is sufficient to prove title to the property.
(d) The Court can consider the defendant’s evidence in a rei vindicatio action
Bank of Ceylon v. A.C. Rajasingham (deceased) [SC/APPEAL/40/2014 decided on 04.07.2023]
Action re vindicatio - nature
-------------
It was held in C.A.No.820 /97 (F) decided on 30.01.2017, that, in a rei-vindicatio action the cause of action is based on the sole ground of violation of right of ownership to the land. In a rei vindicatio action the plaintiff claims as the owner of the land he has the dominum and that land is in the unlawful possession of the defendant.
Land Law - re vindication - burden of proof - identity of the land
------------------
It was held in K.M. Navaratne Banda vs. Siriyawathie Mendis & Others (CA 824/97(F) decided on 09.02.2018) that, in a rei vindicatio action the Plaintiff must prove on a balance of probabilities, not only his ownership in the property but also that the property exists and is clearly identifiable. The identity of the land is fundamental for the purpose of attributing ownership, and for ordering ejectment.
Re vindication - prayer for declaration of title is not necessary - status of a permit holder under the Land Development Ordinance - remedies available for him against a trespasser
Clearly it is not incumbent on a plaintiff to seek a declaration of title in a rei vindicatio action. It will be sufficient if the plaint contains a prayer to evict the trespasser or unauthorized occupier from the land in dispute provided that he pleads the title in the body of the plaint which entitles him to maintain the action.
Hewa Gamage Gimarahami v. Ruwan Pathiranage Lalith Kumara [C.A. 1289/99{F) decided on 21.06.2019]
Rei vindicatio action - compensation for useful improvements - ius retentionis
"Only bona fide possessors are entitled to compensation for useful improvements and the ius retentionis (right of retention) is available to them until compensation is paid by the owner. Even if the defendant is a bona fide possessor, the plaintiff does not want the buildings on the land perhaps because she does not have the financial capacity to pay compensation. The buildings cannot be thrust upon her and she cannot be compelled to pay
compensation to the defendant. The High Court allowed the defendant to remove the buildings. The ius tollendi (right to remove improvements) is available to the improver when compensation cannot be awarded."
See, D.M. Susiripala v. D.M. Sumanawathie [SC APPEAL NO: SC/APPEAL/61/2014 delivered on 20.01.2022]
Civil Law - nature of a decree in re vindicatio action - actions in rem and actions in personam
-------------------
It was held in D. A. Suranga Mojith Kumara & another v. K. B. Ariyarathna (S.C.APPEAL No.123/15 decided on 29.03.2016) that, a decree in a re vindicatio action is considered as a decree that would bind only the parties to the action.
Further, the Supreme Court opined as follows;-
"I arrived at the findings referred to above on the basis that a decree in a case in which a declaration of title is sought, binds only the parties in that action. Such a proposition is not applicable when it comes to a decree in rem which binds the whole world. Effects and the consequences of actions in rem and actions in Personam are quite different. Action in rem is a proceeding that determines the rights over a particular property that would become conclusive against the entire world, such as the decisions in courts exercising admiralty jurisdictions and the decisions in partition actions under the partition law of this country. Procedure stipulated in Partition Law contains provisions enabling the interested parties to come before courts and to join as parties to the action even though the plaintiff fails to make them as parties to it. Therefore, there is a rational to treat the decrees in partition cases as decrees in rem.
Actions in personam are a type of legal proceedings which can affect the personal rights and interests of the property claimed by the parties to the action. Such actions include an action for breach of contract, the commission of a tort or delict or the possession of property. Where an action in personam is successful, the judgment may be enforced only against the defendant’s assets that include real and personal or moveable and immoveable properties. Therefore, a decree in a re vindicatio action is considered as a decree that would bind only the parties to the action."
Civil Law - rei vindicatio action - burden of proof
---------------
It was held in Kuruwitage Don Preethi Anura and Others v. Makalandage William Silva and another (SC APPEAL NO. 116/14 decided on 05.06.2017) that, in rei vidicatio actions the plaintiff must prove his title. In establishing his title the plaintiff cannot rely on the weakness of the defendant’s title.
Land law - rei vindicatio action - burden of proof - permit under the Land Development Ordinance - its shortcomings - nature of the ownership - Roman Dutch law principles - identity of the corpus
------------------------
"This action is a rei vindicatio action and it is trite law that a plaintiff who has lost his ownership to the immovable property in dispute in a rei vindicatio action pendente lite cannot seek to vindicate his ownership."
See K.A. Munasinghe v. Lal Siriwardena and others (Case No. l55/2000(F) decided on 07.06.2019)
Rei vindicatio action – Chain of title – Exception rei venditae et traditae – Identification of the land – Sec, 114 (f) of the Evidence Ordinance – Jus tertii & prescription – Definite time period with regard to the commencement of their prescriptive possession.
See: R.M. Herath Banda v. I.W. Abeysinghe and Others [SC/Appeal/188/14, SC Minutes of 12.06.2023].
Per Hon. K. Kumudini Wickremasinghe, J.
[….]
[I]t is evident that in the present case, the Respondents cannot succeed on the prescriptive title to the land in question as they have failed to provide any definite time period with regard to the commencement of their prescriptive possession. [At p. 16]
………
When considering all the above discussed circumstances, it is evident that the Appellant in the present case has correctly proved his title to the subject matter and his claim has met all the requirements in a rei vindicatio action. On the other hand, the Respondents have failed to bring conclusive evidence to defend his prescriptive title to the land in question. [At p. 19]
rei vindicatio action – Declaration of Title – Standard of Proof – Legitimate rights of the lawful owners:
See: SC/Appeal/176/2014, SC Minutes dated 17-05-2021.
per Hon. Mahinda Samayawardhena, J.
It is well settled law that in a rei vindicatio action the burden is on the Plaintiff to prove title to the land in suit irrespective of weaknesses in the Defendant’s case. H.N.G. Fernando J. (later C.J.) in Pathirana v. Jayasundara (1955) 58 NLR 169 at 171 required “strict proof of the Plaintiff’s title”. But this shall not be understood that a Plaintiff in a rei vindicatio action shall prove his title beyond reasonable doubt such as in a criminal prosecution, or on a high degree of proof as in a partition action. The standard of proof of title is on a balance of probabilities as in any other civil suit. The stringent proof of chain of title, which is the norm in a partition action to prove the pedigree, is not required in a rei vindicatio action. [Vide pg. 6].
…….
The Court shall not protect rank trespassers and promote unlawful occupation to the detriment of the legitimate rights of lawful landowners by setting an excessively higher standard of proof in a rei vindicatio action than what is expected in an ordinary civil suit. [At pg. 11]
…….
"In the unique facts and circumstances of the instant case, failure to tender Deed Nos. 36988 and 38247 is not fatal and the Plaintiffs’ action need not be dismissed on this ground. When the totality of the evidence led in this case is considered, I am satisfied that the Plaintiffs have proved title to the property on the balance of probabilities and the Defendants’ counter claim to the same on prescriptive title is bound to fail." [Vide pg. 13 &14].
Land law - rei vidicatio action - plaintiff's failure to prove the case - its consequences
Where a plaintiff fails to prove the above grounds identified by Wille, his action shall fail. The consequence is that the defendant can continue to occupy the said land that was the subject matter of the action. In the absence of a specific finding with regard to the title of the defendant, the dismissal of the plaintiff’s action does not mean that the defendant has title to such land or that the Court has recognised the title of the defendant. While a defendant in a rei vindicatio action can file a cross claim, the onus is on the defendant to establish his title to the land, and that he has better title than the plaintiff or that his title is superior to that of the plaintiff.
see, Siyambalagahagedara Mohammed Nuhuman Abdul Cader & another v. D.L.H.M Sinnan [SC Appeal No: 43/2015 decided on 18.07.2025]
Land Development Ordinance - Rei vindicatio action - Permit holder rights - Evidence evaluation in land disputes - Cause of action in title disputes - Appellate review of lower court judgments
1. In a rei vindicatio action, the plaintiff must prove both title to the land and that the defendant is in unlawful possession. Failure to prove either element will result in dismissal of the claim.
2. A permit holder under the Land Development Ordinance has a right to possess the land until the permit is properly cancelled, even if a subsequent grant is issued to another party for the same land.
3. An entry in the official land ledger is sufficient evidence of a valid permit, even if a physical permit document was not issued to the holder.
4. When evaluating evidence in land disputes, courts should consider all relevant documents and testimony, including commissioned reports, unless they are properly challenged or objected to.
Held:
1. The Plaintiff failed to prove her cause of action for a rei vindicatio claim against the Defendant, as the evidence showed the Defendant was in possession of the disputed land (Lot 157) based on a valid permit issued prior to the Plaintiff’s grant.
2. The Defendant could not be considered a trespasser as he was in possession of the land based on a permit issued by the State, which was not shown to have been cancelled before the grant was issued to the Plaintiff.
3. While there were some issues with identifying the exact land in dispute, this was not the main reason to dismiss the Plaintiff’s case. The primary reason was the failure to prove the cause of action.
4. The High Court was correct in setting aside the District Court judgment, but for the wrong reasons. The correct reason was the Plaintiff’s failure to prove her cause of action, not issues with land identification.
See, Weerasinghe Arachchige Ramenike alias Weerakkody Arachchige Ramenike v. Peter Fernandolage John [SC APPEAL 133 /2013 decided on 30.10.2024]
rei vindicatio action - Court cannot rely on the defendant’s evidence to decide whether the plaintiff has proved his case - action in personam - burden of proof in rei vindicatio action (superior title or sufficient title or better title discussed).
See : SC/APPEAL/40,39/2014, Decided on :04.07.2023
Per Hon.Samayawardhena, J.
[Vide pp: 21-22]
In this process, the defendant’s evidence need not be treated as illegal, inadmissible or forbidden. The oft-quoted dicta of Herat J. in Wanigaratne v. Juwanis Appuhamy (1962) 65 NLR 167 that “The
defendant in a rei vindicatio action need not prove anything, still less, his own title. The plaintiff cannot ask for a declaration of title in his favour merely on the strength that the defendant’s title is poor or not established. The plaintiff must prove and establish his title.” shall not be misinterpreted to equate a defendant in a rei vindicatio action with an accused in a criminal case where inter alia his confession made to a police officer is inadmissible and he can remain silent until the prosecution proves its case beyond reasonable doubt.
[.....]
The dicta of Herat J. in Wanigaratne v. Juwanis Appuhamy (supra) is eminently relevant to the facts of that particular case but has no universal application to all rei vindicatio actions. Since it is a one-page brief judgment, the facts are not very clear. However, as I understand, the plaintiffs in that case had filed a rei vindicatio action against the
defendant on the basis that the defendant was a trespasser notwithstanding that he (the defendant) had been in occupation of some portions of the land for some considerable period of time. From the following sentence found in the judgment, “In this case, the plaintiffs produced a recent deed in their favour and further stated in evidence that they could not take possession of the shares purchased by them because they were resisted by the 1st defendant”, it is clear that the plaintiffs, if at all, had only undivided rights in the land. It is also clear from the judgment that whether or not the defendant also had undivided rights was not clear to Court. It is in that context Herat J. states “The learned District Judge, in his judgment expatiates on the weakness of the defence case; but unfortunately has failed to examine what title, if any, has been established by the plaintiffs. No evidence of title has been established by the plaintiffs in our opinion.”
Law of Property - rei vindication action - title based on the permit - Issues pertaining to the trial in the District Court raised by the Plaintiff indicate that the plaintiff has limited his action to claim that he is the permit holder to the land in dispute and the Defendant is in unlawful possession and has been causing damage of Rs.5000.00 per season. Issues raised by the Defendant indicate that he also has limited his case to claim that Henaka Ralalage Punchimenika was the permit holder and she transferred her rights to the Defendant who made the relevant payments to the State. It appears that the Defendant has relinquished his other stances taken in the answer such as improvements made to this paddy field, the cause of action of the Plaintiff is prescribed and the Plaintiff has transferred the land to him etc. - Land Development Ordinance, Sec. 2 & 19 discussed
"Thus, it is clear even in a rei vindicatio or a declaration of title action, if the issues are raised as to the title and it is proved, even though there is no prayer for declaration of title, the prayer for ejectment can remain as a standalone valid relief. What is necessary is title (in relation to a rei vindicatio or declaration of title action) or entitlement (in relation to other matters praying for eviction) to be proved in relation to the property in issue by strict proof or otherwise as the case may be. Each relief given as decrees under section 217 of the Civil Procedure Code can standalone as a separate relief. This does not change the legal position that in a rei vindicatio action or a declaration of title action, if the title is not proved and/or declaratory relief as to the title is failed, no relief for ejectment can be given, since those actions are based on the title of the Plaintiff. But in an action filed by a permit holder under the Land Development Ordinance, who cannot be considered as an owner under section 2, it is my view that even if he fails in proving his ownership to the land or getting the declaratory relief to declare him as the owner or title holder, he is still eligible to eject the trespasser, if he can prove that he is the permit holder, since he has the right to possess due to the permit given through statutorily proclaimed process. It must be noted that a permit holder is not merely a licensee whose right to possess can be terminated by giving a notice. There is statutorily proclaimed procedure to cancel a permit. Till such process is taken place the permit holder is the one who has the right to enjoy and possess the property; It is a right given through a process asserted by statutory law but not as a right gained through in its real sense as an attribute of ownership which under common law acquires by occupatio ( seizure- mainly in relation to movable property) , accession, prescription, delivery and transfer (Traditio) etc. In certain occasions of these modes of acquisition of property, such as prescription, one may commence the possession prior to the acquisition of the ownership to the property. However, one’s right to claim possession as the owner begins with the acquisition of ownership to the property. Thus, right to possession as owner follows the acquisition of ownership. A permit may be given under the Land Development Ordinance anticipating a grant to be given in the future but right to possess starts as the permit holder; As such right to possession precedes the acquisition of the property as the owner. Hence, in my view, it is not proper to identify an action filed by a permit holder, who is not considered as an owner as per the interpretation given in section 2 of the said ordinance, to claim the property on the strength of a permit given under the Land Development Ordinance, as a proper rei vindicatio action. It is an action based on his right to possess on the strength of the permit given and the cause of action caused by the violation of that right. Thus, the classification of the case at hand by the learned High Court judges as a rei vindicatio action itself is questionable, especially when there was not a single issue raised at the trial before the District court claiming title or ownership to the land in dispute. At least, this case was not proceeded to trial as rei vindicatio action."
See, B.R. Chandrasena v. A.M. Lokubanda (Deceased) [SC/Appeal No. 20/2010 decided on 18.12.2020]
Land Law - rei vindicatio - fraud - who has the burden to prove the fraud? - balance of probability or reasonable doubt - Evidence Ordinance, Sec. 101, 106, 114(f) - plea of prescription in an appeal - its validity
-----------------------
It was held in New Lanka Property (Pvt) Limited and Others v. Richard Fedrick Maurice Andree and Others (C.A. Case No. 171/2000 (F) decided on 10.08.2018) that the onus is undoubtedly on the person who advances a plea of fraud to prove that by cogent evidence.
Further held, that the prescription was a plea that was abandoned by the Defendants in the original court and since prescription operates subject to a doctrine of waiver, it cannot be taken up in appeal.
Rei Vindicatio action - Prescription - who can claim it?
“In Dabare vs Marthelis Appu reported in 5 NLR at page 210 it was held that prescription is not usable in this country in the sense of usucapio in which it was used by Roman Dutch Law writers, because the effect of regulation No.13 of 1822 was to establish the law of usucapio and to entitle a defendant in possession, who has been sued by a plaintiff for the recovery of immoveable property to a sentence in his favour "if for 10 years before the bringing of such action the defendant has been in undisturbed possession by a title adverse to and independent of the plaintiff".(Emphasis is mine)
Thus it is only a defendant in possession, who has been sued by a plaintiff for the recovery of immoveable property, would be entitle to a sentence in his favour "if for 10 years before the bringing of such action the defendant has been in undisturbed possession by a title adverse to and independent of the plaintiff.”
See, CA Apn No. 1236/99 (F) decided on 05.05.2011
Rei vindicatio Action - identification of the corpus - burden of proof - title - proof of deed - Sec.68 & 90 of the Evidence Ordinance - Civil Procedure Code (Amendment) Act, No. 17 of 2022
See, Sumanasiri Harischandra & others v. Amarapathy Mudiyanselage M.J. Amarapathy & others [S.C. Appeal No. 69/2013 delivered on 15.02.2024]
Law of Property - rei vindicatio action - identification of the corpus
"In light of the above, the burden is clearly on the respondent in the instant case (original plaintiff) to prove the extent of the land and establish the corpus with specific metes and bounds in a clear and unambiguous manner. The authenticity of the permit marked [P-1] is not in dispute. Therefore, it is on the respondent in the instant case to prove that the specific metes and bounds of the land in question that the respondent claims which has been described in the schedule A to the amended plaint tallies with the permit marked [P-1]."
See, Naipanichchi Gamage Rathnayaka v. Upul Nanda Kumara Kodagoda [SC APPEAL No. 09/2022 decided on 20.03.2024]
Law of Civil Procedure - cross claim - Land Law - vindicatory action - burden of proof - identification of corpus
"This action filed by the Plaintiff is a rei vindicatio action. There is no burden for the Defendants to prove. The burden of proof of the case for the Plaintiff lies, fairly and squarely, on none other than the Plaintiff himself. Whether the Defendants prove their cross claim is totally irrelevant. If the Defendants fail to prove their cross claim, the cross claim can be dismissed. That will in no way prove the Plaintiff’s case. If the Plaintiff fails to prove his case, his case will be dismissed. The proof of the cross claim in that event has no significance."
Singakkara Nekathige Stephen and Others v. Rev. Ambanwala Hemalankara Thero and Others [CA/989/1995/F decided on 16.01.2020]
Law of Property - rei vindicatio action - a permit under Land Development Ordinance
In terms of the Land Development Ordinance, a permit is granted in the first instance on condition that the permit holder develop the land and it is only after the conditions of the permit are satisfied that a grant is issued for that land. For that reason, the permit and the grant are part of one process, and as held in Agosinno vs Divisional Secretary, Thamankaduwa and Others [SC Appeal No. 30/2004; SC Minutes of 23rd March 2005] where any issues arise relating to succession, a nomination made under the permit would continue to be valid even after a grant has been issued.
See, Marimuttu Shanmugam (Deceased) v. D.M. Gunapala [SC Appeal No. 157/2017 decided on 06.08.2024]
Law of Property - rei vindicatio action - identification of corpus
In a rei vindicatio action, identifying the corpus is crucial. Without precise identification, courts cannot determine whether the claim of the parties aligns with the land in dispute.
If the land’s boundaries, extent, or location remain uncertain, the claim must fail, regardless of the strength of the title. Courts rely on survey plans, deeds, and witness testimony to establish identity. If the court fails to identify the land in dispute with certainty, it may lead to complications in enforcement of the final judgment, as an unclear decree may be impossible to execute. Therefore, in a rei vindicatio action, proving title alone is insufficient, the evidence should precisely define the land being claimed.
See, Gamadikari Mudiyanselage Undiyagedera Ranjith Ariyarathna v. Karapperu Wijethunga Rajapaksha Mudiyanselage Dhammika Kumara Wijethunga & another [SC Appeal No: 149/2019 decided on 04.04.2025]
Declaration of title - co owner against a trespasser - absence of a prayer for declaration of title - prayer for a declaration of title is not a must in a vindicatory action, if the title is averred and proved.
"First of all, it must be noted that the action filed in the District Court was not an action against the other co-owners but an action to evict the purported trespasser, namely the Defendant. Thus, other co-owners are not bound by the said judgment. ......
Further, as decided in the cases Dharmasiri V Wickrematunga (2002) 2 Sri. L. R 218 and Jayasinghe V Tikiri Banda (1988) 2 CALR 24, in a declaration of title action, absence of a prayer for declaration of title does not prevent the relief of ejectment, if in the body of the plaint title is pleaded and issues were framed and accepted by the court accordingly, and the title of the plaintiff is proved. Thus, in a declaration of title and ejectment case or in a rei vindicatio action what is necessary is to prove title to the disputed portion of land and its unlawful possession by the Defendant. ......
Thus, it is
clear that our law even as far back as early 19th century accepted the
competency of a co-owner to sue a trespasser without making the other co-owners
parties to his action against the
trespasser. Though not directly related to the ejectment of a trespasser, In
Rockland Distilleries V Azeez 52 NLR 490 it was held that a co-owner can
institute an action for damages caused to the common property without joining
the other co-owners as parties to the action. ....
Thus, it is clear a co-owner gets this right as a vindication of his title in every part and portion of the entire land, which title he holds in common with the other co-owners. Even if other co-owners are not made parties to the action, a co-owner should have to be permitted to sue the trespasser when such an act of trespass violates his rights of ownership or title. ....
What has been referred above establish that in our law a co-owner need not add other co-owners as parties to the action filed to eject a trespasser but he has to prove his title/ownership to the land he claims and further that a claim of sole ownership to a portion of land by a co-owner does not disqualify him/her from being successful in obtaining relief to eject a trespasser from the said land."
See, Gallage Saummehammy alias Somawathie, v. I. A. Dharmapala [SC/APPEAL/184/14 decided on 08.09.2022]
Land law - rei vindicatio - identity of the corpus
However, if the subject matter is admitted, no further proof of the identity of the corpus is required, for no party is burdened with adducing further proof of a fact admitted. Similarly, where a Defendant does not object to the subject matter as identified by the Plaintiff and proceeds on the Plaintiff’s identification, that would be tantamount to an admission as to the identification of the subject matter.
See, Abekoon Mudiyanselage Seelawathie Kumarihamy v. Galakumburegedara Wijerathna [SC Appeal No: 141/2012 decided on 29.02.2024
Land law - Transfer of Title – Conditional Transfer - Vendor’s Warranty – Implied Obligation - Rei Vindicatio – Paper Title - Burden of Proof – Title Disputes
- Transfer of Title – Not Conditional: The Court held that the transfer of land under Deed P1 was not conditional. The vendor’s obligation to prosecute an ejectment action against the defendant was merely a reiteration of the vendor’s common law duty to warrant and defend the title. Title passed to the plaintiff upon execution of the deed.
"The part quoted from the Deed does not make it a conditional transfer. The vendor has thereby only reiterated her common law obligation to warrant and defend the title in express terms."
- Vendor’s Implied Warranty: The Court reaffirmed that under Roman-Dutch law, a vendor has an implied obligation to warrant and defend the title of the vendee, even if no express covenant is provided in the deed. This principle is rooted in the vendor’s duty to ensure the vendee’s undisturbed enjoyment of the property.
"A
vendor is bound to warrant his title, although he has given no express covenant
for that purpose."
(Walter Pereira, The Laws of Ceylon, 2nd Edition, 1913)
- Rei Vindicatio – Paper Title Sufficient: The Court held that a plaintiff with a valid paper title (nuda proprietas) can maintain a vindicatory action for ejectment, even if they have never taken physical possession of the land. The plaintiff’s right to eject a trespasser is not contingent on prior possession.
"Even
an owner with no more than bare paper title (nuda proprietas) who has never
enjoyed possession could lawfully vindicate his property subject to any lawful
defence such as prescription."
(Lathœf v. Mansoor, 2010)
- Burden of Proof – Title and Possession: The
Court emphasized that in a vindicatory action, the plaintiff must prove
ownership (dominium) and that the defendant is in possession of the
land. The plaintiff’s failure to take physical possession does not bar the
action.
"In a rei vindicatio action, the cause of action is based on the sole ground of violation of the right of ownership. In such an action, proof is required that: (i) the Plaintiff is the owner of the land in question, i.e., he has the dominium, and (ii) that the land is in the possession of the Defendant." (Luwis Singho v. Ponnamperuma, 1996)
Key Takeaways:
- Transfer of Title – Not Conditional: A transfer of land is not rendered conditional merely because the vendor undertakes to prosecute an ejectment action. Title passes to the vendee upon execution of the deed, and the vendee can maintain an action for ejectment.
- Vendor’s Implied Warranty: Under Roman-Dutch law, a vendor has an implied obligation to warrant and defend the title of the vendee, even if no express covenant is provided in the deed.
- Rei Vindicatio – Paper Title Sufficient: A plaintiff with a valid paper title (nuda proprietas) can maintain a vindicatory action for ejectment, even if they have never taken physical possession of the land.
- Burden of Proof – Title and Possession: In a vindicatory action, the plaintiff must prove ownership (dominium) and that the defendant is in possession of the land. The plaintiff’s failure to take physical possession does not bar the action.
This case provides important clarifications on the law of property transfer, the vendor’s implied warranty, and the requirements for maintaining a vindicatory action. It reaffirms the principle that a valid paper title is sufficient to maintain an action for ejectment, even in the absence of physical possession.
See, D. S. Kumarasinghe (Deceased) & Others v. Konara Mudiyanselage Piyadasa [SC Appeal No. 66/2022 decided on 05.03.2025]
Land Law - choice of proper action - a rei vindicatio action - identification of the subject matter - defences for the action
"The question whether tl1e action is to be treated as a rei vindicatio or declaration of title and ejectment or even possessory action depends on the choice made by the Plaintiffs in their pleadings, including the prayer to such pleading's, which enable the Court to understand the type and title character of the action presented by the Plaintiffs to the Court."
"An owner can institute a rei vindicatio action to recover his property from whoever is in possession, irrespective of whether possession is bona fide or mala fide."
"A rei vendicatio action arises from the right of dominium and it is an action in rem (founded on ownership) and therefore, the Plaintiff's ownership of the thing is the very essence of rei vindicatio action where the main issue that arises for the adjudication is the Plaintiff's ownership of the property."
"It is my opinion that the extent given in oldest title deeds in paddy sowing under ancient land measuring methods may not be 100% accurate as the extent of land required to sow paddy or kurakkan vary due to several factors."
K.R.A. Millangoda v. Koswatte Ralalage Punchirala and Others [C.A DCF 642/1999 delivered on 31.07.2020]
Law of Civil Procedure, Sec. 41 - plan - what is necessary for the plaintiff to state in his plaint when he files a rei vindicatio action against an encroacher - applicability of Sec. 3 of the Prescription Ordinance - can the encroacher claim prescription based on Sec. 3 of the Ordinance? - consequences when the plain reject by the original code based on Sec. 41 of the CPC - policy - ‘there must be finality in litigation’
-------------------
රේ වින්ඩිකාෂියෝ නඩුකරයක දී විෂය වස්තුව නිශ්චිතව දැක්වීමේ අවශ්යතාවය මාර්ෂුෆ් විනිසුරුතුමා විසින් අබ්දුල් ලතීෆ් නඩුවේදී දක්වන ලදි. මේ K.A. Chandralatha v. Keeralage Parakrama (SC Appeal 188/2011 decided on 18.07.2018) නඩුවේදී ද මතු කරනු ලැබූ එක් තර්කයක් වූයේ පැමිණිලිකරු විසින් පැමිණිල්ලේදී විත්තිකරු විසින් අල්ලා ගන්නා ලද කොටස නිශ්චිතව දක්වා නොමැති බවයි. එය සිවිල් නඩු විධාන සංග්රහයේ 41 වගන්තියට පටහැනි බව විත්තිකරු කියා සිටින ලදි. කෙසේවෙතත් පැමිණිලිකරු පැමිණිල්ලේදී මායිම් අනුව සම්පූර්ණ විෂය වස්තුව විස්තර කර තිබූ අතර විභාගයේදී එහි හඳුනාගැනීම පිළිබඳව විසඳනාවක් හෝ නඟා නොතිබිණි. ඒ අනුව ශ්රේෂ්ඨාධිකරණය තීරණය කරන්නට යෙදුනේ "hold that the Plaintiff-Respondent has complied with Section 41 of the Civil Procedure Code with regard to the land for which he sought a declaration of title and has proved the identification of corpus. The learned District Judge has concluded that the land for which the declaration of title is sought has not been identified. I must mention here that there was not even an issue on the question whether corpus has not been identified." ලෙසිනි.
තවදුරටත් මෙම නඩුවේදී පැමිණිලිකරු විසින් විෂය වස්තුවට තමන්ට ඇති අයිතිවාසිකම පෙන්වීමට තමන්ට ඉඩම් සංවර්ධන අාඥාපනතේ ප්රතිපාදන පරිද ලද බලපත්රය ඉදිරිපත් කර තිබිණි. ඒ අනුව ශ්රේෂ්ඨාධිකරණය තීරණය කලේ "If the Plaintiff-Respondent is the permit holder of the land described in the plaint, he can maintain a rei-vindicatio action." ලෙසිනි.
කෙසේවෙතත් විත්තිකරු අදාල අල්ලා ගත් යැයි කියන කොටසට කාලාවරෝධයෙන් තමන්ට ඇති අයිතිය කියා සිටින ලදි. මේ සම්බන්ධයෙන් ශ්රේෂ්ඨාධිකරණය විසින් බලහත්කාරයෙන් අල්ලා ගන්නකුගේ තත්ත්වය සැලකිල්ලට ගෙන ඇත්තේ මෙලෙසිනි.
"What is the intention of an encroacher to a land? His intention is to secretly possess and acquire lands for which he has no title and to expand the area of encroachment day by day. His intention is secret and dishonest. A person who possesses a land with a secret intention cannot claim prescription in terms of Section 3 of the Prescription Ordinance because his possession cannot be considered as an adverse possession. Even a co-owner who possesses a co-owned land cannot claim prescription in terms of Section 3 of the Prescription Ordinance.....
An Encroacher starts encroaching upon lands for which he has no title and continues to possess the encroached portion of the land with a secret and dishonest intention. Therefore his possession in the encroached portion of the land cannot be considered as an adverse possession. Such a person cannot claim prescriptive title to the encroached area of the land under Section 3 of the Prescription Ordinance because his possession is not an adverse possession. ........ To claim prescriptive title in terms of Section 3 of the Prescription Ordinance, the claimant’s possession to the land should be an adverse possession. This is one of the conditions that should be proved by the claimant."
ඒ අනුව ශ්රේෂ්ඨාධිකරණය විසින් ඉඩමක් අල්ලාගන්නකුට කාලාවරෝධී ආඥාපනතේ 3 වගන්තිය අදාළ වන ආකාරය පිළිබඳව තීරණය කරන්නට යෙදුනේ
"hold that an encroacher to a land is not entitled to claim prescriptive title in terms of Section 3 of the Prescription Ordinance to the encroached area of the land or to the entire land. In fact when a person encroaches upon lands for which he has no title, he acquires status of a trespasser in respect of the encroached area of the land. Trespasser starts possessing lands for which he has no title and continues to possess the land secretly. As I pointed out earlier, to claim prescriptive title in terms of Section 3 of the Prescription Ordinance claimant‟s possession should be an adverse possession. A person who possesses a land with secret intention cannot claim that his possession is an adverse possession. Possession of a land by a person with secret intention cannot be considered as an adverse possession in terms of Section 3 of the Prescription Ordinance. Thus a trespasser who violates the law of the land and possesses the land cannot claim benefit of the law of the land. Thus a trespasser cannot acquire prescriptive title in terms of Section 3 of the Prescription Ordinance. Same principle applies to an encroacher. Considering all the aforementioned matters, I hold that an encroacher cannot claim prescriptive title in terms of Section 3 of the Prescription Ordinance." ලෙසිනි.
තවදුරටත් ශ්රේෂ්ඨාධිකරණය විසින් පහත ලෙසින්ද මෙම නඩුවේදී නිරීක්ෂණය කරන ලදි.
"What happens when a plaint is rejected on the basis that the encroached area has not been described by way of a plan or a sketch in a case where a plaintiff seeks a declaration of title to his land (main land) described in his plaint by reference to physical metes and bounds or by reference to a sufficient sketch, map or plan?..... I hold the view that when the plaintiff
who claims to be the owner of a land files a case seeking a declaration of title to his land and also an order to eject an encroacher or encroachers from his main land, what is expected by Section 41 of the Civil Procedure Code is to describe his main land by reference to physical metes and bounds or by reference to a sufficient sketch, map or plan but the said section does not expect to describe the encroached area in the plaint by reference to physical metes and bounds or by reference to a sufficient sketch, map or plan."
Law of vindication - right of the lessee to bring the suit - here the question is that a lessee under a Lease Agreement claims that he is entitled to bring a vindicatio action if he is evicted from the land?
-----
In R. M. Gunapala v. K. L. Nandana Padmasiri and Others (C.A. Appeal No. 99/97 (F) decided on 15.10.2018) the Court of Appeal observed as follows;
"A lessee is dominus for the purpose and for the period of his lease. The lease is considered to be a pro tan to alienation and the lessee has rights as an owner and possessor. He has jura in rem rights against the world.
If the lessee is disturbed by the lessor himself the action will not be a rei vindicatio but and action on the breach of Agreement.
However, if he (the lessee) is evicted by a third person, he may bring a vindicatory action, because he is deemed owner for the period of the lease."
Prescriptive title and adverse possession - Interpretation of interim settlements in land disputes - Effect of filing a lawsuit on prescriptive possession - Requirements for proving adverse possession under Sri Lankan law - Interpretation of Section 3 of the Prescription Ordinance No. 22 of 1871 - Whether institution of an action interrupts or suspends prescriptive possession - Analysis of previous case law on prescriptive title, particularly Unambuwe v. Janohamy - Acknowledgment of rights and its impact on adverse possession claims - Continuity of possession in prescriptive title claims - Application of extinctive prescription to rei vindicatio actions
Case Overview:
This appeal concerns a land dispute where the 1st defendant claimed prescriptive title against the plaintiff’s claim of ownership. The case originated in the District Court of Galle in 1974 and made its way to the Supreme Court after lower court rulings in favor of the plaintiff.
Key Legal Issues:
1. Whether the plaintiff’s action was prescribed by law
2. Whether the High Court erred in rejecting the 1st defendant’s prescriptive claim based on an interim settlement in a previous case
Court’s Findings:
1. Prescription of Action:
The Court clarified that there is no time limit for an owner to seek a declaration of title and ejectment of trespassers. Extinctive prescription does not apply to rei vindicatio actions.
2. Adverse Possession:
• The Court emphasized that adverse possession is crucial for a prescriptive title claim.
• An interim settlement in a previous case (LN 6699) was misinterpreted by lower courts as an acknowledgment of the plaintiff’s rights.
• The Supreme Court found that this settlement did not constitute an acknowledgment, as it was likely proposed by the plaintiff to avoid a potential injunction refusal.
3. Interruption of Prescriptive Possession:
• The Court reaffirmed the principle established in Unambuwe v. Janohamy (1892):
• Filing a lawsuit suspends but does not automatically interrupt prescriptive possession.
• If the plaintiff wins, possession is deemed interrupted from the lawsuit’s filing date.
• If the plaintiff loses, the defendant’s possession remains uninterrupted.
Judgment:
• The Supreme Court allowed the appeal, setting aside the lower court judgments.
• The plaintiff’s action was dismissed, recognizing the original 1st defendant’s prescriptive title to the land.
See, Uduma Lebbe Marikkar Mohomad Nizar (deceased) v. Mutha Merenne Parakrama And 5 Others [SC/APPEAL/235/2016 decided on 28.10.2024]
Law of Evidence, sec. 17, 21, 58 - admission - Civil Procedure Code, S.75 - admissions by rule of pleading - rei vindicatio action - identification of corpus
--------------
So it is quite clear that formal admissions of fact which fall within Section 58 of the Evidence Ordinance cannot be withdrawn. They would operate as estoppel against the maker of admissions. Sometimes admissions in answers are specifically recorded as admissions. Merely because some admissions in an answer as in this case are not recorded specifically so, they do not cease to be admissions. Unrecorded admissions can equally be utilized against the maker.
Mohommed Mahful Abdul Wakeek & anothers v. Malwenna Hewage Sirisena & others [
Civil Law - different between action for definition of boundaries and rei vindicatio
-----------------
"The action for definition of boundaries, known to the Roman Dutch Law as actio finium regundorum lies whenever the boundaries between the lands of adjacent owners have become uncertain either by chance or by the act of adjoining owners or of a third party. (Voet's Pandects, Book 1 o Title 1 Section 1(a)) In the case of Ponna vs. Muthuwa - 52 NLR 59), it was held that the common law remedy of an action for the definition of boundaries presupposes the prior existence of a common boundary which has been obliterated by subsequent events.
In an action for the definition of the boundaries plaintiff has to aver (i) that an ascertainable common boundary previously existed physically on the ground and (ii) that such common boundary had been obliterated subsequently. Deem,an Silva vs. Silva - 1997 2 Sri LR 382."
Somawathie and others vs. Illangakoon (2013) 1 Sri LR 94
Law of rei vindicatio - whether the administrator is fit to prosecute the suit - validity of a deed based on Sec.31(9) of the Notaries Ordinance & Sec. 68 of the Evidence Ordinance - value of producing documents in an civil action
----------------------
In Jayathunga Arachchige Rapiel and Others v. Kurugamage Don Luisa Nona and Others (C.A. 913/97 (F) decided on 03.09.2018) the Court of Appeal observed;
(1) In a very large majority of actions in our courts for declaration of title to immovable property, the claimant is required to sue in his own name in order to establish his rights. But there are some forms of actions where the assertion of a claimant's rights must be made on his behalf by some other person suing in a representative capacity. It is now settled law that the executor or administrator has the same powers as regards immovable properties. Hence, the administrator can prosecute the action.
(2) What the Notaries Ordinance Section 31 (9) states is that a Notary had to satisfy himself that the witnesses were persons of good repute and that they knew the executant's proper name, occupation and residence. Therefore, the claim made by the Appellants questioning the validity of the deed No. 190 cannot be sustained since the Notary had made and had attested the said Deed fulfilling the lawful requirements stipulated in the Notaries Ordinance and Prevention of Frauds Ordinance, therefore the Respondent would still has a valid deed which can be used as a title.
(3) In civil actions its paramount important that, parties need to submit their relevant document which relates to important matters for the court of law to keep in mind so long as a trial is in progress and they can maintain the sustainability of their oral testimonies with those documentary evidence.
Law of Civil Procedure - Sec. 186 - Judgment is not dated by the trial Judge - its effect - nature of an action - rei vindiactio action, declaration of title/ ejectment and possessory action discussed - ingredients of a plaint - Sec.40 - the mere pleading possession does not automatically convert a rei vindicatio action into a possessory action - presumption of title - Judgment - Sec. 187 of the CPC - Joinder and misjoinder of parties
1. Any person who wishes to recover possession of an immovable property has the choice of the following main remedies for the recovery of such property and these remedies are designed and brought for the same purpose of securing the same primary relief of recovery of property.
- He may proceed to recover property by rei vindicatio action on the ground of his title to the property and prove his title as the owner, independent of the right to possession;
- He may proceed by action for declaration of title and ejectment provided that he can prove that he enjoyed an earlier peaceful, possession and that subsequently he was ousted by the Defendant giving rise to a rebuttable presumption of title in his favour where dominium (ownership) need not be proved strictly;
- He may proceed by a possessory remedy and enforce himself to proving his juristic possession viz, actual control over tile thing accompanied by the aminus domani; are fulfilled and take effect.
2. It is trite law that possession comprises both an objective and subjective element, namely physical control (corpus) and the intention to possess (animus possidendi).
3. The principle emerging from the provision of section 187 Civil Procedure Code and the decided cases is that the Court would generally try all issues and pronounce judgment on all such issues except where a pure question of law touching upon either the jurisdiction of the Court or the creation of any bar to the suit by any law arises and in such case, the case can be disposed of without evidence being led under section 147 of the Civil Procedure Code.
4. In other words, the rule that 'no suit shall be defeated for mis~joinder or non-joinder of parties' will have no application where the parties who are not joined are essentially necessary parties to the suit and in whose absence, no effective judgment can be passed. In such case, the misjoinder or non~joinder of such a party may be fatal to the suit. On the other hand, non~joinder of a necessary party may be fatal to the suit, if the Defendant succeeds in showing that the Plaintiff had no cause of action against the Defendants.
Warusamannapedige Hemachandra v. M. Gunasekera and Other [C.A. No. DCF- 0243/99 decided on 06.03.2020]
Rei vindication action - Identification of the subject matter - Title of the plaintiff – Plea of Prescription and Framing Issues:
See: CA/DCF/1395/00, CA Minutes of 14.07.2021].
per Hon. M.T.M. Laffar, J.
Prescriptive title of the respondents to the land in dispute:
“[I]t is pertinent to note that, having raised the issues No. 07 and 08, the respondents are claiming the land in dispute on prescription on the basis that they have been in possession of the same for more than 05 years.
The issues No. 07 and 08 framed by the respondents are reproduced as follows:
7. Are the defendants possessing the land which is morefully described in the schedule B of the plaint and lot No.3 in the plan for more than 05 years considering as their own land?
8. If answered to the above issue in the affirmative, is the defendants are prescribed for this land?
Since, there is no issue framed by the respondents stating that they are in possession of the corpus for a period of 10 years, the respondents are not entitled to claim the prescriptive title to the same. Besides, it is manifestly clear from the issues No. 07 and 08 that the respondents have admitted the fact that they are in possession of the land in suit less than 10 years. In the circumstances, this Court is of the view that the respondents have not acquired prescriptive title to the land in dispute.
…
In the circumstances, this Court is of the considered view that the respondents totally failed to adduce adequate evidence to establish their purported claim of prescriptive title to the subject matter…” [Vide pp. 6-10].
From the Bench - rei vindicatio action
"The Court shall not protect rank trespassers and promote unlawful occupation to the detriment of the legitimate rights of lawful landowners by setting an excessively higher standard of proof in a rei vindicatio action than what is expected in an ordinary civil suit.
Bearing in mind the burden of proof cast upon the Plaintiff in a rei vindicatio action, if the Plaintiff in such a case has “sufficient title” or “superior title” than that of the Defendant, the Plaintiff shall succeed. No rule of thumb can be laid down on what circumstances the Court shall hold that the Plaintiff has discharged his burden. Whether or not the Plaintiff proved his title shall be decided upon a consideration of the totality of the evidence led in the case.
For completeness, let me add the following.
There is a difference between a rei vindicatio action proper and a declaration of title action in terms of the burden of proof of title, notwithstanding that a declaration of title and ejectment of the Defendant is the common relief sought in both actions.
In Pathirana v. Jayasundara (supra) at page 173 Gratiaen J. explained this in the following manner:
A decree for a declaration of title may, of course, be obtained by way of additional relief either in a rei vindicatio action proper (which is in truth an action in rem) or in a lessor’s action against his overholding tenant (which is an action in personam). But in the former case, the declaration is based on proof of ownership; in the latter, on proof of the contractual relationship which forbids a denial that the lessor is the true owner.
In simple terms, in an action filed by the Plaintiff seeking a declaration of title to and the ejectment of the Defendant from the land in suit, if the Plaintiff can prove that the Defendant came into possession as a licensee or lessee under him which was later terminated, the Defendant cannot defeat the action of the Plaintiff on the ground that the Plaintiff is not the owner of the land. In such a situation, the Plaintiff can automatically obtain a declaration of title through the operation of the rule of estoppel contained in section 116 of the Evidence Ordinance:
No tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and of licensee of no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
In fact, a licensor, lessor or landlord need not necessarily be the owner of the property to grant leave and licence, lease or rent out the property. A person may let immovable property to another without having any right or title to it or without any authority from the true owner. Such a lease is valid between the landlord and the tenant, but the true owner is not bound by it. (Professor George Wille, Landlord and Tenant in South Africa, 4th Edition, page 20; Dr. H.W. Tambiah, Landlord and Tenant in Ceylon, page 48; Imbuldeniya v. De Silva [1987] 1 Sri LR 367 at 372, 380)."
per Justice Mahinda Samayawardhena in Ballantuda Achchige Don Wasantha v. Morawakage Premawathie & others [SC APPEAL NO: SC/APPEAL/176/2014 Decided on: 17.05.2021]
Civil Law - rei vindicatio action and privity of contract - declaration for title & ejectment - over holding tenant - lease
-------
It was held in Dr. Rasiah Jeyarajah & another v. Yogambihai Thambirajah nee Renganathan Pillei (S.C. Appeal No. 146/2013 decided on 2015.08.12) that, a lease agreement is admitted, the need to prove title to the premises in question does not arise. The lessor is entitled to get the over holding lessee ejected from the premises. Further, held, every action where a declaration of title is sought does not automatically become a rei-vindicatio action.
Civil Procedure Code - Civil Procedure Code (Amendment) Act No. 17 of 2022, Sec.154A - document - proof of a deed - rights of parties in civil matters - rei vindicatio action - lost of ownership in between the ongoing trial
Comments
Post a Comment