Haji Omar v. Bodhidasa (Dheeraratne, J.)
COURT OF APPEAL
S. N. SILVA. J. (PRES1DENT/CA)
R. B. RANARAJA, J.
C A. APPLICATION NO. 672/87D.C. MOUNT LAVINIA NO. 1204/PSEPTEMBER 30, 1994.
Partition – Scheme of Partition – Roadway – Via vicinalis – Can use be made of aprivate road outside the corpus to provide access to the divided lots?
Where in a partition case a scheme of partition had been confirmed and finaldecree entered showing as access to some of the partitioned lots a roadway onthe boundary outside the corpus which in the preliminary plan had been shownas a private road separated off by a continuous barbed wire live fence –
In the process of partitioning, proper rights of way should be provided fromwithin the corpus as access to a public right of way.
The road claimed by the petitioners was not a via vicinalis. There was no proofof immemorial user of the disputed roadway or prescription.
Sri Lanka Law Reports
 2 Sri LR.
There was fundamental error in confirming the scheme of partition withoutaffording the petitioners an opportunity to object to it.
A glaring blemish which taints the proceedings in a partition action and resultsin a miscarriage of justice to a person not being a party to the action mayappropriately be remedied by an application in revision.
Cases referred to:
Kanthia v. Sinnathamby (1913) 2 Balasinghams Notes of Cases p. 19.
Thambiah v. Sinnathamby61 NLR 421.
Peacock v. Hodges 6 Buch 65.
Somawathie v. Madawala  2 Sri LR 15.31.
Application for revision of the order made by the District Judge of Mount Lavinia.
P. A. D. Samarasekera P.C. with H. Soza for petitioners.
A. K. Premadasa PC. with B. 0. P. Jayawardena for respondents.
Cur. adv. vult.
N. SILVA, J.
This is an application in revision and/or for Restitutio in integrum,filed from the order dated 22-7-1985 made by the District Courtconfirming the scheme of partition as contained in the final plan 1155and the report of the Surveyor submitted with the plan. Thepetitioners also seek relief from the final decree entered uponconfirmation of the said plan.
The Petitioners were not parties to the above partition action andthey have no interests in the corpus for partition. The only matter ofdispute, in this application, relates to the *road" as depicted alongthe North Western boundary of the corpus in the final plan 1155. ThePetitioners claim that the said ‘road* is a ‘private road” serving thePetitioners who own land to the West of the corpus, to the exclusionof the co-owners of the corpus. They submit that their rights areaffected by the scheme of partition as contained in the final planwherein the Surveyor has partitioned the corpus using the said“private road* as the only means of access to lots 2,3,4 and 5 of thecorpus. That, the order confirming the scheme of partition and thefinal decree that has been entered, have the effect of creating aservitude of way in favour of the parties to the partition action over the
Amarasinghe v. Wanigasuriya (S. N. Silva, J.)
“private road” which is outside the corpus, without the Petitionersbeing heard on this matter. On this basis, they move that the finaldecree be set aside and suitable direction given by this Court to theDistrict Court to safeguard the interests of the Petitioners in relation tothe "private road" to which they are exclusively entitled.
The Respondents (being the parties to the partition action),between whom there was no contest at the trial and as regards thescheme of partition, concede that the said “road” falls outside thecorpus. However, it is submitted that the “road” is a "via vicinalis" orin the alternative that they have acquired a servitude of way byprescriptive user of the road. In any event, it is submitted that thisapplication is misconceived and that the Petitioners may institute anactio negatoria against the Respondents for a declaration that theRespondents are not entitled to a servitude of way over the said“private road".
It is common ground that the road being the subject-matter of thedispute now under consideration falls outside the corpus sought tobe partitioned in the above action. In the preliminary plan C1192dated 7.1.1981 drawn by C. C. Coomaraswamy, Licenced Surveyor,the disputed road is described as a “private road”. Furthermore, theplan shows that the “private road” is separated from the corpus by acontinuous barbed wire and live fence. It is thus clear that the co-owners of the corpus, being the Respondants to this application hadno access to the corpus from the “private road” at the time of thepreliminary survey. In that plan the “private road" is depicted merelyas a boundary of the corpus.
A commission is issued in terms of section 27 of the Partition Lawto a Surveyor for the partition of the corpus into separate lots inaccordance with the interlocutory decree. Section 31 requires theCommissioner to prepare a scheme of partition. The scheme ofpartition must necessarily set out the means of access to eachdivided lot. If not, a partition decree, which is intended to terminatecommon ownership and bring to an end disputes that arise from suchcommon ownership will be the beginning of a new wave of litigationfor servitudes of way in respect of the divided lots.
In this case the commission for the final survey was issued toMervyn Samaranayake who prepared plan 1155 dated 30.1.1985,referred above. In the plan the "private road’ depicted in the
Sri Lanka Law Reports
 2 Sri LR.
preliminary plan is depicted as a "road". The only means of access tolots 2,3,4 and 5 of the plan, allotted to different Defendants in theaction is along this road. In this report dated 22.2.1985 (paragraph 7)he states as follows:
“For the purpose of dividing the land into lots I have made use of aroad 20 feet in width which runs along the Western boundary.Although this road has been previously described as a private road,it now serves several houses to the West and the Kotte U. C. has laidelectric wires and water mains along this road. The parties to theaction are now using this road. Therefore I have made use of thisroad for division of the lots without providing alternative road fromwithin the land".
As noted above there was no contest in the case and it appearsthat the learned Judge did not give his mind to this aspect of thereport and plan in deciding to confirm them and enter final decree.
The submission of the Petitioners is that the District Court byentering final decree on the basis of the said plan and report has ineffect granted to the respective parties in the partition action a rightto use the said “road" as a means of access to their lands. Thissubmission is supported by the very ground that is urged by theRespondents who oppose this application. The Respondents submitthat the proper remedy of the petitioners is to file an actio negatoria toobtain a negative declaration that the Respondents are not entitled tothe “road” as depicted in the plan. Indeed, such a submission ispossible only because the final decree of the District Court purportsto give the respondents the right to use that "road".
The question whether a Surveyor in effecting partition could utilizea right of way lying outside the corpus, to facilitate a division,was thesubject-matter in the case of Kanthia v. Sinnathamby<n. In that casethe Commissioner refused to take into account a right of way lyingoutside and to the North of the land which was the subject of thepartition action. It appears that the land to the North belonged to thePlaintiff in the action. The decision of the Commissioner waschallenged in the Supreme Court and Lascelles C.J, held that therewas no error in the refusal of the Commissioner to effect a partitionusing the right of way which is outside the corpus. It was observedthat the fact the right of way served the Plaintiff in respect of another
Amarasinghe v. Wanigasuriya (S. N. Siva, J.)
land was irrelevant to the decision to be made. The rationale of thedecision is quite clear; that in the process of partitioning proper rightsof way should be provided from within the corpus as access to apublic right of way. If not, as noted above, the partition decree wouldbe the beginning of a new wave of litigation for servitudes of way.This judgment was followed in the case of Thambiah v. Sinnathamby ®Weerasuriya, J. firmly ruled out the possibility of a declaration beingmade in a partition action as to a right of way claimed in respect of aland outside the subject-matter of the action. Therefore, it could betaken as settled law that in effecting a partition proper rights of wayshould be provided within the corpus to the distinct allotments, asmeans of access to a public right of way.
In this case the preliminary survey depicts the disputed road as a“private road". Furthermore, as noted above, the continuous barbedwire live fence clearly establishes that there was no means of accessfrom that road to the corpus. The surveyor to whom the commissionwas issued for the final survey should have been properly guided bythe preliminary plan. Instead, he has set himself up as havingjurisdiction to decide that what was a “private road" has now becomea “road" over which the parties to the action would have access.Paragraph 7 of the report reproduced above is a demonstrable erroron the part of the Commissioner since the Petitioners’ claim exclusiverights in respect of the “private road". The scheme of partition couldnot have been confirmed without affording the Petitioners anopportunity to object to it. In these circumstances, I am of the viewthat there is a fundamental error in the proceedings of the partitionaction at the stage of confirming the scheme of partition. Thisfundamental error has caused prejudice to the rights of thePetitioners who are entitled to invoke the extraordinary jurisdiction ofthis Court by way of revision.
The submission of the Defendants that the road is via vicinalis is amere claim which is not supported by the evidence in the case and ispositively contradicted by the preliminary plan. In the book titled'Servitudes' by Hall and Kellaway, 2nd Edition at p43, it is stated as
“The courts have repeatedly laid down that there are two kindsof public roads, via publica and via vicinalis… A via publics isa road which has been proclaimed as a public road by an
Sri Lanka Law Reports
 2 Sri L.R.
authority empowered by statute to do so, while a via vicinalis isa right of way which the public becomes entitled to use throughimmemorial user… Two other methods of creating public rightsof way exist viz. by reserving them in Crown grants of land andthrough the owner of the land dedicating a road which crosseshis property to public use”.
The authors have further explained the acquisition of via vicinalisas follows:
‘These roads were originally roads used by a number ofneighbours jointly and known in Holland as ‘buyrwegen’(Grotius, 2.35.10; Van Leeuwen 2.21.9; Voet, 43.7.1). InPeacock v. Hodges m, de Villiers. C.J. said that they are eitherroads in a village or roads leading to a town or village, but closeconnection with an urban area does not seem to have beenrequired in earlier times. Use from the time immemorialwithout interference from the owner of the land over whichthey run is an essential factor… Upon proof of user for thirtyyears and upwards the court is justified in holding that a state ofthings had existed from time immemorial if no evidence isadduced to show when it originated."
There is no evidence of such immemorial user in respect of thedisputed road way. Certainly, the claim of prescriptive user iscontradicted by the preliminary plan. It is indeed correct that thePetitioners may invoke the jurisdiction of the District Court for anegative declaration against the parties to the partition action, assubmitted by counsel for Respondents. However, the question iswhether their rights should be prejudiced in the partition action by anillegal act on the part of the Commissioner, being an officer of Court,without a proper consideration and hearing of the Petitioners. It issettled law that a glaring blemish which taints the proceedings in apartition action and results in a miscarriage of justice to a person notbeing a party to the action may appropriately be remedied by anapplication in revision (Vide Somawalhie v. Madawala)f4>. For thesereasons I see no merit in the submissions of learned counsel for theRespondents. I accordingly allow this application and set aside theorder dated 22.2.1985 confirming the scheme of partition and thefinal decree entered in the case. The District Court will now issue afresh commission for partition of the corpus with a direction to the
Amarasinghe v. Wantgasuriya (S. N. Silva, J.)
Commissioner that access to the divided lots from a public right ofway be provided from within the corpus. Respondents will pay thePetitioners a sum of Rs. 5000/- as costs.
Dr. R. B. RANARAJA, J. -1 agree.Application allowed.
AMARASINGHE V. WANIGASURIYA