HOWARD C-J.—Marikar v. Siththie Maleeha.
1947Present: Howard CJ. and Windham J.
MARIKAR, Appellant, and SITHTHIE MALEEHA,
S. C. 35—D. C. Kalutara, 25,535.
Possession action—Right oj footway—Claim for damages—Claim in re con-vention that land be declared free of servitude—Whether claim maintain-able.
Where in a possessory action the plaintiff claims not only restorationto possession but also damages, it is open to the defendant to set up histitle by way of defence.
^^PPEAL from a judgment of the District Judge, Kalutara.
H. V. Perera, K.C. (with him H. W. Jayewardene), for the defendant,appellant.
No appearance for the plaintiff-respondent.
September 2, 1947. Howard C.J.—
We are of opinion that this appeal must be allowed. The plaintiffcame into Court claiming that he be restored to his possession of a certainright of footway over the defendant’s land for drawing water from thewell on the defendant’s land having access to the road called De SilvaStreet. He also claimed a sum of Rs. 100 being damages sustained byhim and further damages at the rate of Rs. 2 per day from June 19, 1945.The defendant in his defence maintained that the plaintiff had noright of servitude over this land and also in reconvention asked that hisland should be declared free of the right of way pleaded in the plaint.The learned District Judge has disallowed certain issues raised by thedefendant which raised the question as to whether the plaintiff enjoyeda servitude for drawing water from the said well and a further issue alsowhich raised the question as to whether the defendant’s, premises werefree of the servitude referred to in the plaint.
If the claim of the plaintiff had been merely for restoration of possessionto the right of footway, then we think the learned Judge’s order wouldhave been correct, but in view of the fact that the plaintiff has coupledwith that claim a claim for damages, we think that the issues raised by thedefendant should have been allowed. In this connection I would inviteattention to the Second Volume of Maasdorp’s Institutes of Cape Lam(1903 Edition) at pages 25 and 26 where the following passage occurs : —
“ Where, from the circumstances of the case, it is not one suitableto be decided by this summary method of procedure, or . where theapplicant in addition to restoration of possession wishes to sue forcompensation in damages, the proper course would be to proceedby way of action, in which case the respondent <pr defendant may set uphis defence of ownership or set up a counter-claim for a mandamentof spoliation ”.
456HOWARD C.J.—rMarikar v. Siththie Maleeha.
In this case we think that the plaintiff has brought an action in which.he claims not only a restoration to possession but also asks forcompensatidn in damages and therefore the issues raised by the-defendant must be allowed and the case remitted to the District Judge sothat he can proceed to trial on that basis. The appellant will have thecosts of this appeal.
Windham J.—I agree.
MARIKAR, Appellant, and SITHTHIE MALEEHA, Respondent