Luciya v. Somaratne (Victor Perera, J.)
COURT OF APPEAL
RATWATTE. J. (PRESIDENT) & VICTOR PERFRA. J.
CA (SC) 3S7/73 (F). D. C. CHILAW 13471MARCH 3. 1931
Servitude – Right of Cartway by proscription — deviation — abandonment
Where a person has acquired a right of way over a definite track over another's landby prescription and thereatrer a deviation is effected by mutual agreement.
The servitude attached to the new deviated route on the basis nr prescription. The rigntis an incorporeal right and the particular route affects only the manner o! its exercise.The right is not lost by the deviation on the basis of abandonmt rt unless the abandon-ment is intentional and deliberate.
Cases referred to:
(11 Nagamant v. Vinayagamoorthy (19231 24 NLP 438.
(21 Fernando v. Mendn 1191 It 14 NLR 101.
(3) Dias v Fernando (19351 37 NLR 304.
Appeal from the Judgment i,' the Dismal Court o' Chilaw.
H. W. Jayewardene. Q.C. with S. C. B. Walgampaya andLakshman Perera for the appellants.
K. Shanmugalmgam for the respondent.
Cur. adv. vult.
March 30. 1981
VICTOR PERERA, J.
The plaintiff-respondent filed this action on the 14th February1969 against the 1st and 2nd defendants-appellants for a declara-tion that he was entitled to a cartway P.Q. or R.S.T. in the sketch"X" annexed to the plaint or any other road "ex necessitate" overthe land called Kadjugahawatta belonging to the 2nd defendantand over the land called Kadjugahawatta which belonged toR. P. Dingiriya whose estate was being administered by the 1stdefendant in Testamentary suit No. 2395/T. The land of theplaintiff-respondent was marked "A" in the sketch and the landof the 2nd defendant was marked "D" and the land of Dingiriya
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; 198JJ 2 S.L.R.
was marked "E." The plaintiff respondent aiieged that to gainaccess to the Village Committee Road adioimng the land of Din-giriya he used the cartroad P.Q. over the land of the 1st and 2nddefendants-appellants from his land for well over 30-years andhad acquired a prescriptive title thereto. The plaintiff respondentalleged that on or about 1960 the 2nd defendant appellant whowas the owner of the lot marked "D" anu an heir of Dingiriya theowner of lot "E” requested the plaintiff respondent to use theroadway depicted as lot R.S.T. in the sketch as he wanted to closedown the road P.Q. for the purpose of planting. The plaintiff-res-pondent alleged that he thereafter used the road marked R.S.T.on the sketch till the 22nd May 1968 when the 2nd defendant-appellant obstructed that part of the deviated roadway R.S.T.He named the 2nd to 6th defendants as parties as they were theowners of the land lying directly East of the plaintiff-respondent'sland and adjoining the lands of the 1st and the 2nd defendants-appellants.
The 1st and the 2nd defendants-appellants filed answers on the8th August 1969 denying the claim of the plaintiff-respondent butpleading that the 3rd, 4th and 5th defendants have been using aroadway over the land of the 6th defendant and that the plaintiff-respondent has always been using a roadway over the land of the3rd, 4th and 5th defendants, that after the institution of theaction the 3rd, 4th, 5th and 6th defendants with the connivanceof and in collusion with the plaintiff-respondent obliterated tracesof the said roadway and that in any event the shortest and mostconvenient route to the land of the plaintiff-respondent from theVillage Committee road was over the lands of the 3rd to 6thdefendants.
On a Commission issued by Court, Plan No. 341 dated 3rdNovember 1969 (1D1) and the Report dated 4th November 1969(1D2) were submitted to Court. The plaintiff-respondent hadpointed out the roadway ABC as the road which he used, andD.E.B.C. as the deviated road which he used. These roadwayscorrespond with the roadways indicated in the sketch “X."
On a Commission issued by Court at the instance of the 1stand the 2nd defendants-appellants. Plan No. 389 dated 21st .March•1970 (1D2) and the Report dated 23rd March 1970 (1D2A)were submitted to Court. Accordina to this Plan and Report aroad G.H.I. was shown over the land ot the 3rd, 4th and 5th defen-dants and over the land of the 6th defendant. According to theReport (1D2A1 there were no signs of a roadway over this portiondepicted as G.H.I. There were barbed wire fences at G and bet-ween G. and H. In this Plan apari from the roadways depicted in
Luciya v. Somaratne (Victor Perera, J.)
Plan 341 (1D1) as A.B.C. and D.E., another road is shown as acontinuation of D.E. over the 1st and 2nd defendants-appellants'lands as E.F.J.K.L.M.N. leading to the plaintiff-respondent's land.The defendants-appellants had also on a Commission issued byCourt submitted Plan No.3782 (1D3) showing a further alternativeroute A.B.C.D.E. along the Southern boundaries of the 1st and2nd defendants-appellants' lands leading to the plaintiff-respon-dent's land.
When the matter came up for trial on the 25th October 1972,the following issues were framed
Has the plaintiff by use for over 10 years acquired a rightto the roadway depicted as PQ in the sketch annexed tothe plaint ?
Did the 2nd defendant allow the plaintiff to use the road-way shown as RST as a deviation of the roadway PQ ?
Did the 2nd defendant on or about the 22nd May 1968obstruct the plaintiff's use of the track RST ?
What damages has the plaintiff suffered by reason of thesaid obstruction ?
If so, what is the amount of the damages ?
In any event is the plaintiff entitled to a right of cartwayby necessity over the land of the 1st and 2nd defendants ?
Is the road over the land of the 3rd, 4th, 5th and 6thdefendants the shortest and most convenient road to theplaintiff's land?
Are the lands of the plaintiff, the 3rd to 6th defendantsone and the same land?
if so, can the plaintiff claim a right of way of necessityover the land of the 1st and 2nd defendants?
Can the plaintiff have and maintain this action withoutthe addition of all necessary parties ?
After the issues were framed. Counsel for the plaintiff-respon-dent stated to court that the 3rd to 6th defendants were madeparties as the owners of the adjoining lands and as there was aclaim for any other roadway of necessity. This action was against
Sri Lanka Law Reports
the 1st and 2nd defendants-appellants only. Accordingly the Courtmade order that the 3rd to 6th defendants were not necessaryparties to this action as the plaintiff is not now claiming any otherright of way of necessity and discharged the 3rd to 6th defendants.
The trial thereafter proceeded between the plaintiff-respon-dent and the 1st and 2nd defendants-appellants only. At this stagethe 1st and 2nd defendants-appellants do not appear to haveobjected to the 3rd to 6th defendants being discharged.
The plaintiff-respondent gave evidence to the effect thatDingiriya referred to in the plaint was the owner of the land calledAmbagahawatta alias Kadjugahawatta. He by Deed No. 25895dated 1.8.47 (PI) gifted this land to the plaintiff-respondent,his illegitimate son. He stated that Dingiriya died prior to 1956about 20 or 22 years prior to the date he gave evidence, thatafter Dingiriya's death he entered into possession of this landand used the roadway shown as P.Q. in the sketch (P2). He testi-fied that this road was used by Dingiriya himself over the landwhich was now possessed by the 2nd defendant. According to theevidence of the plaintiff-respondent he had used the roadway P.Q.for well over 10 years till the 2nd defendant deviated the road.
The Surveyor Mr. Bertram de Silva was next called to speak tohis Plan and Report. He identified the roadway marked as P.Q.as the roadway marked A.B.C. in his Plan No. 341.
The defendants-appellants called Surveyor Vernon Pererawho made the Plan No. 378 (1D3) at their instance but his evi-dence was not helpful in any way.
The 2nd defendant-appellant gave evidence and stated that the1st defendant-appellant was her mother. She stated that she knewthe roadway claimed by the plaintiff respondent, that she waspresent when Mr. Bertram Silva surveyed the same and thatMr. Bertram Silva had depicted the road as A.B.C. in the Plan1D2. She denied that the plaintiff-respondent ever used the road-ways A.B.C. or D.E.B.C. She stated that the plaintiff used a roadover the 6th defendant's land, but under cross examination sheadmitted that during Dingiriya's life time Dingiriya went over theroad A.B.C. to pluck coconuts from his land. She stated that shethought her father Dingiriya used a road over the 6th defendant'sland.
Thus it is clear that the defendants appellants were unable toestablish that there was any other roadway which was used, withany positive evidence.
Luciya v. Somaratne (Victor Perera, J.)
The learned District Judge has examined the evidence carefullyand come to the conclusion that the plaintiff-respondent had usedthe roadway A.B.C. and that he had acquired a title thereto byprescription, and that on a suggestion and at the request of the2nd defendant-appellant the roadway was deviated as D.E.B.C. inPlan 341 in or about 1960.
Mr. H. W. Jayewardene, Q.C. Counsel for the defendants-appeilants contended that even if the plaintiff-respondent hadacquired a title to the right of way A.B.C. by prescription, therewas an abandonment of the servitude. He relied on the case ofNagamani v. Vinayagamoorthy^11. In that case it was held that aservitude could be lost by abandonment but the abandonmentmust be deliberate and intentional. He also relied on the case ofFernando v. Mendiswhich was considered in that case. But inthe instant case there was no evidence of any intentional abandon-ment. At the request of the 2nd defendant-appellant, the plaintiff-respondent had agreed to a deviation of the roadway over thesame land of the defendants-appellants and leading up to theportion B. C. of the roadway which had been used earlier.
Mr. Shanmugalingam, Counsel for the plaintiff-respondent,cited the case of Dias v. Fernando (where it was held that wherea person acquired a right of way over another's land and adeviation of the route is effected by mutual agreement, theservitude attached to the new route. In that case the DistrictJudge had found that the plaintiff had used a cartway over thedefendants' land for a considerable number of years. About 7 or 8years prior to 1934 when the trial took place the roadway wasdeviated. In that case the plaintiff claimed the old cartway withthe deviation.
The Court considered the identical question that has arisen inthis case, namely, where a right of way had clearly been acquired• along a defined path and was in force up to about 7 or 8 years,was that right lost by the deviation? The answer to that questiondepended on the nature of the plaintiff's right to the servitude andwhether there had been an abandonment of that right at the timeof deviation.
The Court held on an examination of all the authorities thatit was an incorporeal right over the tenement and the particularroute affects only the manner of its exercise.
The plaintiff-respondent in this case claimed the road A.B.C.or the road as deviated. The learned District Judge answered issues1, 2 and 3 in the affirmative but clarified the matter by reference
Luciya v. Somaratne (Victor Perera, J.)
to the demarcation in Plans filed of record. He held that theplaintiff-respondent had prescribed to the roadway marked A.B.C.although the road was deviated in the manner shown in the saidPlan as D.E.B.C. and that the said roadway was obstructed. TheDistrict Judge accordingly declared the plaintiff-respondententitled to the cartway depicted as A.B.C. in Plan 341 dated30.9.1969 made by Bertram de Silva, Licensed Surveyor, being theroad which the plaintiff-respondent had used before the deviationand awarded damages.
We do not see any reason to vary the said judgment. We there-fore affirm the judgment and decree and dismiss the appeal withcost payable to the plaintiff-respondent.'
Ratwatte, J. I agree.Appeal dismissed.
LUCIYA v. SOMARATNE