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Present: Wood Renton J.
SUPPIAH et al. v. PONNAMPALAM et al.
188—C. R. Jaffna, 8,050.
Servitude—Right of way—Transfer of land without any mention, of rightof way—Transferee may assert his claim to right of way.
Where an owner of land who had acquired a right of way by pre-scription conveyed the land by a notarial instrument to another,—Held, that the transferee was entitled to assert, his right to theservitude acquired by the transferor, though this servitude was notexpressly conveyed to him.
PPEAL from a judgment of the Commissioner of Requests>Jaffna (M. S. Pinto, Esq.).
The second plaintiff and one Kanagamma, a minor, over whomthe first defendant was appointed guardian ad litem, are adjoininglandowners. Both the plaintiff’s land and Kanagamma’s landoriginally belonged to one Kottar. Kottar dowried the land nowbelonging to the plaintiff to his eldest daughter, Sinnapillai, in 1865,reserving the land now belonging to Kanagamma to himself. Sinna-pillai dowried the land to her daughter, the second plaintiff, bynotarial deed dated September 1, 1909. Neither the deed in favourof Sinnapillai nor the deed in favour of the second plaintiff madeany mention of a right of way over the land now belonging toKanagamma. The plaintiffs brought this action on March 30, 1910,for a declaration of a right of way over Kanagamma’s land.
The learned Commissioner held that the second plaintiff and herpredecessor in title had acquired the right of way by prescription.The defendants appealed.
Balasingham, for the appellants.—Even granting that Sinnapillaihad acquired the servitude by prescription, that would not conferany right on the second plaintiff. She became owner only in 1909,and the deed in her favour does not convey to her any right of wayover Kanagamma’s land.
A right of way is immovable property, and can only be transferredby a notarial deed. It has often been held that where an owner ofland encroaches upon a neighbour’s land and acquireis title-to it byprescription, and then sells the land originally belonging to him toanother, the vendee does not acquire by the deed of conveyance anytitle to the encroached portion, unless it was expressly conveyed tohim. The fact that the right of servitude is an incorporeal rightdoes not make any difference ; it is clearly immovable property,and falls under section 2 of Ordinance No. 7 of 1840.
Counsel referred to Voet 19, 1, .6.
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Tissaveerasinghe (with him J. Joseph), for the respondents.—TheCommissioner finds that the plaintiffs were in possession of the rightof way. The plaintiffs are at least entitled to a possessory decree.(His Lordship intimated to counsel that he would hear him for therespondent, if necessary.)
^Cur. adv. vult.
June 20, 1911. Wood Renton J.—
I see no reason in this case to differ from the conclusion of thelearned Commissioner of Requests, on the evidence, that Sinnapillaihad acquired a prescriptive title to the right of way in suit. Theonly question is whether the plaintiff-respondent, to whom sheconveyed the land itself without any mention of the fact that therewas annexed to it as a servitude this right of way, can avail himselfof Sinnapillai’s prescription. I can find no authority which wouldjustify me in holding that, under Roman-Dutch law or even underOrdinance No. 7 of 1840, where a right of way has become attachedto a land, and that land is made the subject of a valid legal transfer,the transferee is not in a position to assert his right as the owner ofthe dominant tenement against the owner of the servient tenement.In the absence of any such authority, I hold that the plaintiff-respondent is entitled to the benefit of Sinnapillai’s prescription, andI dismiss the appeal with costs.
SUPPIAH et al . v. PONNAMPALAM et al