( 59 )
Present : Schneider J.
KODITUWAKKU et al. v. MANSEER et al.
38—C. R. Kandy, 28,648.
Way of necessity—Order to pay a sum annually to keep defendants' righ^afire—
Where fhe Court entered decree granting the plaint if! a way ofnecessity, and ordering him to pay defendant one rupee per annumto keep the defendants’ right alive.~
Held, that the order as to payment ' of a sum annually Tinconsistent with the granting of a way of necessity, and remittedthe case for the Commissioner to ascertain what $tjou|d be paid forthe way.
rjl HE facts appear from the judgment.
//. V. Percra, for appellant.
H. E. Garvin, for respondent.
June 2, 1922. Schneidku J.—
Objection has been taken on this appeal that the plaintiffs havenot claimed a way of necessity, while the Commissioner has grantedthem such a way. It is true that the plaint is not worded asprecisely as it- might have been, if the claim had been confined toa way of necessity, but the very words “ way of necessity ” are to befound in the fourth paragraph of the plaint, and it is obvious thatboth parties to the action understood what it was that the learnedCommissioner was to decide by inspection of the land* that is,whether the way claimed by the plaintiffs was one of necessity. Thelearned Commissioner had so understood the request made by theproctors that he should “ inspect and decide the case. ” I would,therefore, hold that he has rightly decided within the authoritygiven him by the parties that the plaintiffs are entitled to a rightof way of necessity, but his order that the plaintiffs should pay thedefendants one rupee per annum to keep the defendants*' right aliveis inconsistent with the granting of a way of necessity.
1 would, therefore, set aside that part of the decree and remit thecase in order that he may decide.upon evidence, if the parties soelect, what sum of money should be paid by the plaintiffs to thedefendants for the user of this way of necessity. I would give nocosts of appeal to either party.
-%a / ,n
KODITUWAKKU et al. . v. MANSEER et al