41. Land sued for to be described by metes and bounds or sketch

41. When the claim made in the action is for some specific portion of land, or for some share or interest in a specific portion of land, then the portion of land must be described in the plaint so far as possible by reference to physical metes and bounds, or by reference to a sufficient sketch, map, or plan to be appended to the plaint, and not by name only.

The plaintiff-respondent claimed a servitude of right of way by prescriptive user and alternatively a servitude of a way of necessity. It was conceded that the dominant tenement and servient tenement lands are owned by the Mahaweli Authority.

The Court after holding that the dominant tenement and the servient tenement are lands owned by the State, granted the reliefs prayed for by the plaintiff-respondent. On the appeal it was held that, when the plaintiff claimed that he has exercised by prescriptive user a right of way over a defined route, the obligation of the plaintiff to comply with section 41, of the Civil Procedure Code is paramount and imperative. Strict compliance with section 41 of the Civil Procedure Code is necessary as the Fiscal would be impeded in the execution of the decree/judgment if the servient tenement is not described with precision and definiteness.

David Vs. Gnanawathie (2000 (2) S.L.R. 352) 

A party who claims prescriptive title to a particular allotment of land is obliged to clearly describe it either by boundaries or extent of the land that he claims to have prescribed. Section 41 of the Civil Procedure Code requires to define such land with reference to physical metes and bounds or by map or sketch.

Dayawathie Vs. Baby Nona Panditharatne (C.A. No. 728/93(F), D.C. Kalutara Case No.3597/L, C.A. Minute dated 10.5.2001) 

Plaint was filed seeking a declaration of title to an undivided share of a land. It was pleaded that the defendant-appellant had encroached upon a portion. The encroached portion was not described with reference to physical metes and bounds or by reference to any map or sketch. The matter was fixed for ex-parte trial; after ex-parte trial application was made to issue a commission to survey the land and identify same. The ex-parte trial did not end up in a judgement. After the return of the commissioner, the plaint was amended, a fresh ex-parte trial was thereafter held. After the decree was served, the defendant-appellant sought to purge default, which was refused.

Held that,

(1)the Court was obliged initially to have rejected the original plaint since it did not describe the portion encroached upon section 46 (2) (a) read together with section 41 of the Civil Procedure Code.

Gunasekera Vs. Punchimenike (2002 (2) S.L.R. 43)