WTJEYE W ARDENE J.—Sumangolo and Appahamy.
19418Present: Wljeyewardene J.
SUMANGALA, Appellant, and APPUHAMY,
290—C. R. Gampola, 6,317.
wServitude—Right to footpath—Cogent evidence of right necessary.
A- servitude such as that of right to a footpath must be established bycogent evidence, as it affects the right of the owner of a land to thefree and unfettered use of his land. The fact that the person who claimsthe servitude has other means of access to the road is a matter thatmust be considered in weighing the evidence of user.
PPEAL from a judgment of the Commissioner of Requests,Gampola.
L. A. Rajapakse, K.C. (with him S. R. Wijayatilake and T. B. Dissa-3iayake), for the plaintiff, appellant.
S. W. Jayasuriya for the defendant, respondent.
Cut. adv. vult.
March 7, 1945. Wuewardene J.-—•
The plaintiff brings this action as the controlling Viharadhipathi ofthe Pothgul Vihara, Elpitiya, to have it declared that a land of the Vihara,lot 2 in plan D 2, is free from the servitude of a footpath claimed by thedefendant as the owner of lots 5 and 6.
The Vihara stands on the land called Viharawatte, lot 1 in place D 2,and the Vihara owns lots 2, 3 and 4.
Lot 1 is separated from lot 2 by the Gansabahawa road. The lots 2,3 and 4 are contiguous lots. In going from lot 1 to 3 the plaintiffcrosses the Gansabahawa road at the point A, shown, in plan D 2, and goesalong the footpath, shown in detail in plan PI—the footpath beingf Y F Z.The tea plantation in lot 2 appears to be fenced with barbed wire exceptalong the common boundary between the lots 2 and 3.
The defendant states that he went along the footpath, G F in plan P 1and then proceeded along the footpath F Y used by the priest, and thusgot on to the Gansabhawa road. He saysy he used this path for the last32 years as he had no other access to the Gansabhawa road.
It is no doubt true, as pointed out by the learned Commissioner, thatthe defendant claims this right of way by prescription, but- the fact thatthe defendant has direct access to the Gansabhawa road as admitted bythe retired Korala—one of the defence witnesses—Is a matter whichcannot be ignored in weighing the evidence of user.
WIJ EYE WARDENS! J.—Sumangala and Appuhamy.
The defendant's ease is that he has been using the footpath in questionfor nearly 82 years but he is unable to explain satisfactorily why theplaintiff should have suddenly objected to his using the footpath about.1942. lie makes a somewhat vague statement that there were “ somedifferences ” between him and the plaintiff about 1942 and that he thenceased to help the Siamese Sect to which the plaintiff belongs. He saysthat the plaintiff obstructed the use of the footpath only after he with-drew his support from the Siamese Sect. The defendant’s evidencewith regard to the nature of the “ differences ” between him and theplaintiff that resulted in plainiff obstructing the footpath is very un-satisfactory and unconvincing. The plaintiff appears to me to give amore reasonable account of the origin of the differences between himand the defendant. He says that the defendant who was a dayakay*of the temple wanted to use the footpath in 1940 and he told the defend-ant that he could not allow footpaths over Vihara lands. The defendantthen got displeased with the plaintiff and ceased to support the plaintiff'stemple.
The plaintiff fenced lot 2 nearly twenty years ago as there was a tea.plantation on it. As he had to go from lot 1 to lot 3 over lot 2 he lowered' the barbed wire at the point A near the Gansabhawa road so as to givehim access to lot 2 without at the same time leaving a gap through which.,trespassing cattle could enter lot 2. If the defendant, was allowed bythe plaintiff until two years ago to use that footpath there would have-been a similar arrangement of the strands of wire at the point G. Butthe positon now is that the wire had been cut at G. Defendant saysthat he did not make the gap at G. He says that the gap- at G is todaywhat, it was for the last twenty years. It is difficult to believe that theplaintiff who took so much trouble to prevent cattle trespassing at Awould have left the opening at point B through which cattle could haveentered lot 2 and damaged his plantation. This supports the versionof the plaintiff that there was a continuous fence between lot 2 and lot 5and the defendant created the gap about 1942 by cutting the strands.
The evidence of the Surveyor de la Motte is not of much assistanceto the defendant. He went to the lands some months after the disputearose and saw what he thought was a path near the point G. It wouldnot be difficult for the defendant to have taken steps to see that therewere signs of such a path during the months that elapsed between thecommencement of his dispute with the plaintiff and the visit of de la Motte.
Kiri Banda, the retired Korala, made a general statement that he knewthe defendant using the road for the last 25 years, but under cross-examination he admitted that he had been to the defendant's land about15 years ago for an inquiry and in connection with vaccination duties.He also added that he had been to these lands 2 or 3 years ago along the-footpath “ as a short cut ” and that nobody objected to his doing so.Tbe fact that the Korala of the village going on official duty was notprevented from going over the plantiff’s land cannot be relied upon asevidence of user of the footpath by the defendant as owner of a dominanttenement. Moreover, the evidence of this witness that the Gansabhawa^road “ touches the defendant’s land ” contradicts the defendant'sevidence that his “ land has no Gansabhawa road on the southern end
Virasinghe and Peris.
I have no doubt that the defendant denied that he had direct access .to theGansabhawa road in order to lend colour to his story that he crossedthe plaintiff’s land to go to the Gansabhawa road. The remainingwitness Samarakoon could only speak of .the use of the footpath by thedefendant after 1940.
As against this evidence there is the evidence of the plaintiff who is aNayaka Thero. I see no reason for rejecting the evidence of this witness.He is corroborated by the evidence of Mr. Kalenberg, a licensed Surveyor,who says that the path from F to G appeared to him to be of much moreresent date than the rest of the path. On a careful examination of theevidence in the case I am definitely of opinion that the defendant hasfailed to prove the servitude cliamed by him. Servitudes such as thesemust be established by cogent evidence as they affect the right of thaowner of a land to the free and unfettered use of his land.
I set aside the judgment of the learned Commissioner and direct decreeto be entered in terms of clause 1 in the prayer of the plaint and fordamages at Rs. 6 a year from date of action. The plaintiff would beentitled to costs here and the Court below.
SUMANGALA, Appellant, and APPUHAMY, Respondent