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Present: Schneider J.
APPUHAMY et ol. v. APPUHAMY et ol.
153—0. R. Dandugamuwa, 5,420
Adverse user of a path token Iand teas being planted under an agreement bya planter—Right of way acquired as against otoner and planter—Jlight of way acquired by a person over land of which he woeco-owner.
A used a path over B’s land for over ten years, when the landwas being planted by G under a planting agreement with B.
Held, that A acquired a title by prescription to the right ofway against both B and C.
The planter is 'on tlje land for a limited purpose, namely, theplanting of the land and the possession, in fact and in law, iswith the ownerof the land, and,therefore,rights acquiredagainst
the land wouldbe adverse to theowner aswell as to theplanter
in bo far as the planter's interests are concerned in the land.
Plaintiffs used a path over defendants' land for over ten years.The first plaintiff was a planter under the predecessor of defendant,and was as such a co-owner.
Held;, in -thecircumstances, thatthe plaintiffs* user wasadverse
to defendant and his predecessor, in spite of the fact that the firstplaintiff was a co-owner with the defendant.
T? HE facts are set out as follows in the judgment of theCommissioner of Bequests (P. Saravanamuttu, Esq.):—
The plaintiffs in this case claim a right of way over the second defendrant's land calledPa 1 u gahaw alaw a 11 ato theplaintiff's landcalled
Ethudiyakeliyaweagare Palugahawalawatta. The right of way claimedis the portion A to B depicted in plan No. 694 filed of record.
Palugahawalawatta was originally owned by the firat defendant,Don Philip Appubamy, who gave the land to the first, plaintiff, LawnsAppuhamy, to be planted on an agreement. .According to the terms ofthe agreement, the first plaintiff became a co-owner with the firstdefendant, and both possessed the land in common. About the timethe first plaintiff began to plant this land, one Joronis was the ownerof the land called. Ethudiyakeliyaweagare Palugahawalawatta, t.e.,the land now belonging to the plaintiffs. Joronis planted this landabout the same time. The coconut trees on this land and on defendant’sland are of about tbe same age. By deed No. 4,624 dated October 11,1911 (P 1), .Toronis sold this land to plaintiffs. On March 13, 1920,a deed of partition (D 6), with plan No. 39 (D 4), was drawn upbetween the first plaintiff and the first defendant, i.e., tbe co-ownersof the land called Palngahawalawatta. By this deed the firat plaintiffbecame the owner of the southern portion, and the first defendant theowner of the northern portion of the land. The choice of the portionswas perhaps decided by the fact that the southern portion adjoinedthe firat plaintiff's present residing land, and the northern portion .;wasin proximity to another land owned by first defendant. The firstdefendant soon after on April 1, 1920, sold his portion of the landtogether with other lands to second defendant by deed No. 931 (D 3).It is obvious that the partition between the first plaintiff and thefirst defendant was made with a view to Belling the first defendant'sportion to the second defendant. * + * * I shall now deal withthe point of law raised in iBBue No. 6 by defendant’s Counsel. Mr.Samarakoon contends that as tbe first plaintiff was a party to dead of
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partition No. 11,498 -dated March 18, 1900, and plan No. SO attachedthereto, the first plaintiff cannot lead .oral evidence to contradict deedof partition and plan. He quotes section 02 of the Evidence Ordinancejn support of his contention. He also contends that a deed ofpartition is analogous to a partition decree. 1 cannot agree with him.A partition decree is valid as against the whole world, and it iH a*decree entered by Court after a careful examination of the titles of allthe interested parties. A deed of partition is merely a “cross transfer,'*and must be regarded more in the nature of an ordinary . transfer, andthe servitude, is not extinguished by the transfer, although the rightis not expressly reserved in the notarial – agreement. Again, theplaintiff's land was the dominant tenement.; This land was not thesubject matter of the deed of partition. The right of way claimed v isa real and not a personal right. .It attaches to' the lands. The- rightexisted when Joronis was. the owner of the plaintiff's land* . In .^October,1911, plaintiffs became the owner, of the dominant tenement. Thefirst plaintiff began to use this road in his capacity as part owner of thedominant tenement and as one of the successors in title of Joronis.It is true that the first plaintiff was co-owner of the servient tenement,too, up to March, 1929. But it cannot be maintained that duringthe period October, 1911, to March, 1920, the first plaintiff had only apermissiveuseof thisroad. Heusedthe road as an ownor of the
I therefore do not think that issue No. 6 arises in this case. Evenif it does, there was a tacit agreement between the first plaintiff andthe first defendant that the first plaintiff should uso the road, andthe easefallsunderproviso (2)ofsection 92. This is supported
by the fact that the first plaintiff used this road for a few monthsafter the deed of partition was executed.
The Commissioner entered judgment for plaintiffs.
The defendant appealed.
Samarawickreme(withhim Samarakoori), for defendants, appel-
Sucrisz (with him Rajakarier), for plaintiffs, respondents.
October 3, 1922. Schneider J.—
This is an appeal by the defendants against whom the learnedCommissionerhasgivenjudgmentinrespect of a right of way*
claimed by the plaintiffs. There are two plaintiffs. They claimeda right of way over the defendants’ land from the points A to B.There is a strong body of evidence in support of the plaintiffs’ claimto the right of way:It would appear that the plaintiffs’
land, whieh is to the north of A, was owned by one Joronis, whohimself planted the land. The evidence establishes that Joronisplanted that land-about 25 years ago, and since that time and upto October, 1911, when he sold to the plaintiffs, used the cart, waybetween the points A and B. The defendants’ land which is tothe south of A appears to have belonged to oner Paiappu, and wasplanted under him by the first plaintiff. -Paiappu sold to thedefendants. There is reliable evidence that the plaintiffs, sincetheir purchase in 1911, have used the track between A and B as acart road up to the date of the obstruction alleged by them.
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The learned Commissioner, in a carefully considered judgment,upheld the claim of the plaintiffs, that they had acquired a titleby prescription. He held that Joronis had acquired this right byprescription before the date when he sold to the plaintiffs, and that,therefore, the user by the plaintiffs was adverse to the defendants.
It was contended on appeal that Joronis’ user was not adversefor two reasons. It would appear that Joronis and the firstplaintiff were married to two sisters of the second plaintiff. Itwas contended that the first plaintiff was, as a planter, in possession,of defendants’ land, and was also co-owner with the defendant, inthat he was entitled to a share of the soil as a planter, and thatJoronis was permitted by the first plaintiff, because of their relation-ship to use the path in question, but, although this contentionreceives some support from the fact that first plaintiff and Joroniswere related to one another, yet there is no evidence to supportthe contention, inasmuch as the first plaintiff does not say thatJoronis was permitted by him to use the path in question, nor isthere any other evidence to the effect.
It was next contended that the first plaintiff was the actualperson in possession of the defendants’ land during the period oftime at which Joronis used the path in question, and that, therefore,Joronis could not acquire prescriptive rights over the' land asagainst Paiappu. The contention was that the first plaintiffmust be regarded as having b.een a lessee of the land under Paiappu.I nm unable to uphold this contention for the reason that a planteris on the land for a limited purpose, namely, the planting of theland, and that the possession, in fact and in law, is with the ownerof the land, and that, therefore, rights acquired against the landwould be adverse to the owner as well as to the planter, in so far asthe planter’s interests are concerned in the land.
It was then contended that the user by the plaintiffs since October,1911, cannot, be said to be adverse to the defendants or theirpredecessor, because the first plaintiff was a co-owner with thedefendants’ predecessor in the defendents’ land. It was contendedthat the first plaintiff vras entitled as such co-owner to use thepath in question over the defendants* land. It seems to me thatthis contention, too, is not sound. In the first place, there are twoplaintiffs who claim the right of' servitude in this case. The secondplaintiff is not a co-owner with the defendants’ predecessor. There-fore, user by the second plaintiff was obviously adverse to thedefendant’ predecessor and the defendant. As regards the userby the fii*st plaintiff, too, I would regard it as adverse to thedefendants’ predecessor, because the first plaintiff used the track,not in his capacity as co-owner with the defendants* predecessor intitle, but in his capacity as owner of his own land, that is of the
1 therefore dismiss the appeal, with costs.