RAJARATNAM, J.—•Wijesena v. Fernando
Present :Rajaratnam, J. Weeraratne, J., and Sharvananda, J*
M. H. WIJESENA and another, Appellants, and
C. FERNANDO, Respondent
S. C. 242/69 (F)—D. C. Kuliyapitiya, 964/L
Servitude—Right of cartway by prescriptive user—Alternatively, rightof cartway of necessity—Effect of Partition Decree on portion ofright of cartway-—Principle of indivisibility of servitude.
The plaintiff instituted in 1963 an action for a declaration thatshe has prescribed to a right of cartway depicted as A, B, C, D,
F, G, H, in Plan ‘ X ’. She claimed in the alternative to theright of cartway as a way of necessity. The trial judge rightlyheld that there was evidence of prescriptive user by the plaintifffrom 1942 onwards. There was also evidence that there is noroad other than the one shown in Plan ‘ X ’ to get to the V. C.road from the Plaintiff’s land.
That portion of the cartway A—B was the subject matter ofa partition action in which final partition decree was entered in1957 allotting that strip of land to the defendant-appellants andsome others. It was contended for the appellants that on theentering of the partition decree in 1957 the plaintiff not only lostthe right of cartway A—B acquired by prescriptive user, butalso the right of cartway over the balance portion B, C, D, E, F,G, H as the servitude is indivisible by nature and cannot beacquired or lost in part only.
Held.—Although the partition decree extinguished in law thatportion of the cartway A—B, yet once a praedial servitude hasbeen acquired it is not lost or extinguished by the impact of apartition decree over a portion of it ; the servitude over thebalance portion is not destroyed or lost but lies dormant and isrevived by the re-creation of the servitude over the lost portion.Once a way of necessity is granted over A—B (in thecircumstances of this case the plaintiff _ should be granted acartway of necessity over A—B) the servitude over B, C, D, E,
G, H is revived and is operative
Per Rajaratnam, J.— “it is contrary to the principles
of the Roman Dutch Law to say that the plaintiffs lost theirservitude in part only. A servitude of a right of way is a singleservitude”
A PPEAL from a judgment of the District Court, Kuliyapitiya,
H. W. Jayawardena, with P. A. D. Samerasekera and
Mohamed for the 1st and 2nd defendants-appellants.
A. G. de Silva for the plaintiff-respondent.
Cur. adv. vulU
September 9, 1975. Rajaratnam, J.—
I have read the reasons given by my brother for the dismissalof this appeal with costs in both Courts payable to the 1stplaintiff-respondent with which I agree.
1—A 24500 (77/01)
RAJARATNAAI, J.— Wijesena v. Fernando
The simple question in this case is whether a cartway A-B-C-D E F G H as shown in Plan X and which on the findings of thetrial Judge has been usedwithout interruption from 1942 and wasa prescribed servitude enjoyed by the plaintiffs, was lost after aPartition Decree 2D2 in 1957 whereby the defendants obtainedtitle to the land covering A-B by reason of s.48 (1) of the Parti-tion Act freeing the title from “ all encumbrances whatsoever
To answer this question, the principle enunciated in Voet that“ praedial servitudes are indivisible by nature and therefore can-not be acquired or lost inpart only” is of great importance. Onthe findings, the cartway continued to be used even after 1957,although the portion A-B was used only for 6 years after thePartition Decree. It is not necessary for me to consider whetherthe factual continued user of the portion A-B before the Parti-tion Decree could be ignored when the user of the portion A-Bcontinued in fact from 1942 without interruption till it was dispu-ted in 1963. The continuation of the factual user, when it wasopen to the defendants to assert their unencumbered title maybe relevant as the whole doctrine of prescription, as Voet says,is based on negligence.
Under these circumstances it is contrary to the principles ofthe Roman Dutch Law to say that the plaintiffs lost their servi-tude “ in part only A servitude of a right of way is a singleservitude and as Voet in Book VIII Title 6-12 puts it
“ Idemque est, si per plures fundos sibi contiguos quishabuerit eundi jus, et tempore statute per unum tantumierit, nam et per reliquos eundi ius ei servatur”
that is to say as we find in Maasdorp “ Thus a servitude of rightof way is a single servitude, if it is in favour of one dominanttenement, though it may run across several servient properties,so much so that if the right of way has been used over one ofthe servient tenements but not over the others the servitudewill be preserved even with respect to those over which for theperiod of prescription it has not been used ”—Maasdorp 8th Edt.II, p. 175 (Juta).
The appeal must therefore be dismissed with costs in bothCourts payable to the 1st plaintiff-respondent.
The 1st plaintiff-respondent instituted this action for a decla-ration that she has prescribed to a right of cartway depicted asA to H in Plan No. 2001 dated 20.6-64 and made by VernonPerera, Licensed Surveyor, and marked X. She claimed, in the
SH AR VAX AN DA, J.—Wijesena v. Fernando
alternative, that she be declared entitled to the right of cart-way and passage 12 feet wide as a way of necessity oyer thedefendants’ land to the V-C- road on the west.
After trial, the District Judge accepted the evidence of the1st plaintiff and her witnesses on the question of user of thesaid cartway shown as A to H in the aforesaid Plan X and heldthat the plaintiff had prescribed to the said cartroad 12 feetwide. According to the plaintiff, she had purchased the landcalled Narangahahena by deed No. 2621 of 1942 (PI), and toget to that land from the Ennoruwa-Kithalawa Road, she hadto go across Waduwakumburawatta, Kokkanduwawawatta andBadalgewatta, the lands of the defendants. She has been resid-ing in that land from the time of the purchase. She and herhusband had put up a house and a carpentry shed where herhusband had been carrying on his trade of cart-making.According to her, carts had been brought to her house alongthis road A to H for repairs and new carts were taken alongthis road. Her husband had been plying this trade from 1942.From the plaintiff’s land to get to the V-C. road, there is noother road other than the one shown in Plan X. The evidenceof prescriptive user by plaintiff is over-whelming and I see noreason to reverse the finding of the Court below on this issuewhether the plaintiff has been using the cartway A to H inPlan X from 1942 onwards. The District Judge has answeredthat issue in the plaintiff’s favour.
The defendants-appellants admit that there is a cartroad.going through the land shown as BCDEFG, but state that ithas been provided for their private use and they deny theplaintiff’s user of the said cartway. Mr. Jayawardena submitted,that this cartway BCDEFG cuts through the 1st and 2nd de-fendants’ land of Waduwakumburawatta and Kokkanduwawa-watta and is gravely burdensome to the servient tenement. Butthe fact is that whoever has been using that cartway, it is awell-established cartway which, according to the plaintiff and:her witnesses, has been in existence for several years and hadbeen serving her house.
Mr. Jayawardena raised an interesting argument in relationto that portion of the cartroad AB in Plan X. He pointed outthat the cartway AB was part of the land Agampitiyahenawhich was the subject matter of partition action No. 6170 ofthe District Court of Kurunegala, and that in the final parti-tion decree (2D2) entered on 23.7.57, Lot C in the final parti-tion plan No. 2752 (2D3), which is a narrow strip of land overwhich the cartway AB in Plan X runs, was allotted to hisclients and other plaintiffs in that case. He relevantly submitted
SHARVANAKDA, J.— Wijesena v. Fernando
that on the entering of the partition decree 2D2 in 1957, theright of cartway which the present plaintiff is alleged to haveacquired over Lot C by prescriptive user had got wiped outand fresh adverse user from 1957, the date of entering of thepartition decree was necessary for the plaintiff to establish aright of cartway not only over AB, but also over BCDEFGH inPlan X. In my view, there is substance in his argument as faras the cartway AB is concerned; for the partition decree 2D2extinguished, in law, all rights and servitudes not specificallyprovided for in such decree; therefore, though the plaintiffcontinued to use the cartway AB undisturbed through theperiod of the partition proceedings and thereafter, in law shelost that servitude on the entering of the partition decree 2D2and hence there was in law, though not in fact, a break in thenature of her user of the cartway AB. She had to re-acquireher right afresh after 1957. Since this action was filed in 1963,technically, she cannot base her right to the use of AB onprescriptive possession. Mr. Jayawardena further submitted thatas the plaintiff had, by operation of the partition decree, losther right of cartway over the portion.AB, she lost, the rightof cartway over the balance portion BCDEFGH, as the servi-tude was one and indivisible. He relied on Fernando v. Fernan-do (31 N.L.R. 107) in support of his proposition. In that casethe plaintiff claimed by prescription a right of way from hisland across three lands owned severally by the defendants.That claim was resisted on the ground that a partition decreeentered in respect of one of the servient tenements did notconserve the right of way over that tenement. It was held inappeal that the partition decree extinguished the servitude over/.hat particular tenement, and that since one of the lands overwhich the servitude was claimed, namely, the land adjoiningthe road, was separated from the alleged dominant tenementby a piece of land which did not own the same servitude, theplaintiff had therefore failed to establish the servitude heclaimed, namely, the right of way, from his land to the road.It was said that the right of way as claimed therefore hada missing link, his alleged right over that section having gone.It is to be noted that the plaintiff’s claim in that case to a wayof necessity was refused as he, unlike the plaintiff in thepresent case, had other means of approach. A legalistic butunrealistic view had been taken of the facts in that case.Dalton J. could not appreciate as to why the plaintiff did notput forward any claim for a right of way in th» partitionaction. He queried : “ If the evidence led for the plaintiff is tobe believed, his right of way over this property and the othershad been in continuance and uninterrupted use for over ten
years prior to that, but no' claim was then put forward
but if the way was being used by him as a cart-road regularly
SI TAR V AX AND A, J.—Wijesena v. Fernando
at that time, it is difficult to think that he was not fullyaware of the action”. A Judge more familiar with local condi-tions and the ways of our peasantry will not share that diffi-culty of appreciation.
According to the evidence that has been accepted by thetrial Court, the plaintiff has been using this right of cartwayABCDEFGH from 1942 adversely to all owners of the inter-vening servient tenements of the defendants from 1942 up to16th June, 1963, when, for the first time, the 1st and 2nddefendants-appellants obstructed the plaintiff. This evidencewarranted the Distrct Judge holding that the plaintiff hadprescribed to the said cartway and was unaware of the parti-tion proceedings in D.C. Kurunegala 6170. According to thesubmission of Counsel for the 1st and 2nd defendants-appellants,the partition decree supervened to existinguish in law a partof that servitude. Maasdorp, on the Law of Things, Vol. II (5thEd.) at page 191, states that “ praedial servitudes are indivisiblein their nature and can therefore not be acquired or exercised oilost in part only”. This statement is based on Voet. Voethad not considered the situation created by our Partition Act orOrdinance whereby a part of the praedial servitude of a cartwaycan get extinguished by operation of law. Such an extinguish-ment is an artificial imposition. But, both propositions can bereconciled. Though, as a result of the partition decree, thatportion of the cartway AB might have, in law, got extinguish-ed, yet, once a praedial servitude has been acquired, it is notlost or extinguished by the impact of a partition decree over aportion of it; the servitude over the balance portion is notdestroyed or lost but lies dormant and is revived by the re-creation of the servitude over the lost portion. Once a way ofnecessity is granted over AB, the servitude over BCDEFGH isrevived and is operative. It is to be noted that in the 31 N.L.R.107 case, Dalton J. recognized the possibility of re-creation of theentire servitude after the extinction as a result of the parti-tion decree, had there been a notarial grant of servitude overthat section covered by the partition decree. Once the missinglink is re-provided, the entire servitude is revived. The parti-tion decree 2D3 has not supervened to destroy the servitudeover the remaining cartway BCDEFGH. In my view, the servi-tude of cartway over BCDEFGH in Plan X, which had beenacquired by the plaintiff by prescriptive user, survived theentering of the partition decree. This decree had the limitedeffect of extinguishing the servitude over the portion AB only.The plaintiff remains entitled to that part BCDEFGH whichwas a substantial portion of the cartway which had beenacquired by prescriptive user from 1942.
SIRIMANE, J.-—Gunatunga v. Attorney-General
It is to be noted that though the partition decree was enteredin 1957, the plaintiff continued her adverse use of the entirecartway ABCDEFGH until June, 1963, peacefully and withoutany obstruction from the defendants-appellants. This actionwas instituted in July, 1963.
In the circumstances, in my view, the plaintiff should begranted a cartway of necessity over AB in Plan X which wasextinguished by the partition decree 2D3 of 1957. If not for thestatutory consequence of the partition decree 2D3, the plain-tiff would not have lost her right of cartway over AB- (It isis to be noted that the defendants-appellants were plaintiffsin the partition action No. 6170 and they failed to disclose thepresent plaintiff’s right of cartway over AB.) In the circums-tances, the defendants-appellants are not entitled to anycompensation for the grant of way of necessity over AB in PlanX. The grant of cartway of necessity over AB recreates theservitude over AB and revives the servitude over BCDEFGH.The plaintiff is thus declared entitled to the use of cartway overABCDEFGH in Plan X. Counsel for the appellants statedthat the cartway over BCDEF affects them prejudicallyas the route divides the lands over which it runs into twohalves. The fact that such a route had existed from 1942 milit-tates against such complaint. But, if they feel justified in theircomplaint, it is open to them to offer to the 1st plaintiff-respondent a deviation of the route, provided that the proposedalternative route is equally convenient and serviceable to the1st plaintiff-respondent as owner of the dominant tenementNarangahahena described in the schedule to the plaint—Mara-singhe v. Samarasinghe (73 N-L.R. 433). But so far they havefailed to do so so-
For the reasons set out above, the appeal is dismissed with,costs in both Courts payable to the 1st plaintiff-respondent.
Weeraratne, J.—I agree.
M. H. WIJESENA and another, Appellants, and D. C. FERNANDO, Respondent