On these findings of fact the learned District Judge held that theplaintiff's predecessors-in-title did not usejhe right of way B10 for atleast 34 years. On these conclusions on the facts, the learned DistrictJudge held that in law there has been an abandonment and a non-userof the right of way B10 by the plaintiff's predecessors-in-title. Thelearned Distirct Judge further held that in view of his conclusions, inlaw, as there has been a non-user and an abandonment of the right ofway B10 by the previous owners of the dominant land, Lots ,B 1, B2and B3, that the deed from Adamally (P5) of 1971 to the plaintiffcould not have passed to the plaintiff a right of way over B10. Tocome to this conclusion the learned District Judge had to overcomethe recital in the deed (P5) which stated as follows:
"All that roadway in and over that defined and divided alotment of
land (presently a roadway 16 feet wide) marked Lot 10 .in Plan No.
This'particular recital conveying the roadway over B10 in deed (P5).the learned District Judge got over by calling it a mere repetition of thereferences to the roadway mentioned in the previous deeds, and infact a notarial flourish which was of no consequence. The Court ofAppeal has'also adopted this line of reasoning of the learned DistrictJudge in respect of the reference to the roadway in deed (P5) of1971, the title deed of the plaintiff. I shall deal with this specificconclusion later.
The learned Queen's Counsel for either party did not contest thefindings of fact made by the learned District Judge. The learnedQueen's Counsel for the plaintiff-appellant-petitioner strenuously' contested the legal conclusions of the learned District Judge on whichwas based the dismissal of the plaintiff's action. The learned Queen'sCounsel for the defe.ndant-respondent-respondent supported the legalconclusions of the learned District Judge. The learned Queen'sCounsel for the plaintiff-appellant-petitioner submitted that inconsidering whether there has been an abandonment and non-user ofthe servitude-right of way over B10 by the plaintiff and hispredecessors-in-title. both the original Court and the Court of Appealhave lost sight of the material fact, that this case was an instancewhere a servitude-a right of way, has been created by a notarialgrant, that a distinction has to be drawn between a servitude createdby prescription or by verbal agreement, and a servitude created by anotarial grant. When a Court has to consider whether there was anabandonment or non-user of a servitude created by a notarial grantdifferent considerations have to apply. I will deal later with this legalsubmission.
necessary to refer to this case at length. Three brothers'owned aparcel of land and by Deed of Partition in '1905 (PI), these threebrothers amicably partitioned the land among themselves as depictedin Plan No. 3379 marked "X". Shanmugam Vaithialingam was allotedLot 1, that is plaintiff's predecessor-in-title. Shanmugam Arumugamwas allotted the middle lot where the well was situate, which lot attime of action was owned by the 2nd and 3rd defendants. The 1stdefendant was the husband of the 2nd defendant. ShanmugamPonnambalam was allotted the third lot which had devolved at time ofaction on the 5th defendant. The 4th defendant was the husband ofthe 5th defendant. In this amicable partition a path was demarcatedoutside the limits of these three specific lots, and which pathway wasto be held in common by these three persons, as a pathway to andfrom the land, to the well, and to the water course. The 2ndplaintiff-appellant as owner of Lot 1 depicted in Plan 'X' filed thisaction for a declaration that she was entitled to use the 9-foot widepathway shown as Lot A in Plan 'X' and to use the water well and thewater course situate in the land belonging to the .2nd and 3rddefendants. It was the position of the defendants that although deed(P1)' had made provision for the rights claimed by the plaintiffs, suchrights had not been demarcated on the ground, nor were those rightsexercised by the parties or their successors in-title. The trial judge heldthat the following facts have been proved:
The learned District Judge's findings were as follows:-
The learned Judge did not accept the evidence of the 2nd ’plaintiff's father that this path in Lot 1 Plan 'X' had been used byhim, or by the plaintiffs in recent times. His finding was that ithad never been used since its purchase by the witness in 1942.
The 2nd and 3rd defendants had a Tobacco business and usedthis path claimed for the burning of tobacco waste on this path. –
The plaintiff's predecessor-in-title had put up a barbed-wirefence on the whole of the western boundary, which had theeffect of closing the entrance from this land to the path in Lot 1
. that is, the path in question.
The 2nd and 3rd defendants claimed that in 1964 they had cuta coconut tree and a palmyrah tree which was growing in lot A. 'that is, the path in question.
On the above findings the learned District Judge came to theconclusion that the plaintiffs and her predecessors-in-tirle had notused the pathway claimed since the purchase of the land Lot 1 in Plan'X' by herfather in 1942 up to the filing of this action in 1966. On thisfinding the learned District Judge held that the plaintiffs and theirpredecessors-in-title had since 1942, tacitly abandoned the use ofthese rights and lost them by non-user. It will be noted that thefindings of fact- (1) and (3) above among others also on which thejudge's conclusions on abandonment and non-user were based areclosely similar to findings of fact in the present case before me.
Wanasundera, J. had expressed the view that the learned DistrictJudge has considered the plaintiff's action as a claim for the right ofservitudes-a right of way etc., and has expressed the view that in thisinstance these parties were’ co-owners of the pathway and the rightsof the parties should have been considered on that basis, that is as towhether there had been adverse and prescriptive possession of thepathway by the respondents, and referred to the decision of H. W.Tambiah, J. in the case of K. A. Rajentheran, appellant and K.Sivarajah, respondent (2). Having made this ruling on the law,Wanasundera, J. has nevertheless considered the submissions madeby the learned President's Counsel for the appellants Mr. Ranganathan,Q.C. that the findings of fact by the learned District Judge cannot in
any event be construed as a clear intention on the part of the plaintiffsand their predecessors-in-title to abandon the servitude.Mr. Ranganathan. Q.C. has submitted that the erection of the barbedwire fence oh the Western boundary-
which had the effect of elosing the entrance to the path from
their land was at most, equivocal and does not show a clear
intention on the part of the plaintiffs and their predecessors-in-titleto abandon their rights, or an intention not to use them”. (Page124).
Mr. Ranganathan has submitted that during this'period the plaintiffsand their predecessors-in-title had no occasion to exercise their rightssince they were making use .of the amenities provided by the adjacentland to the North. In this state of affairs, the plaintiff-appellants and"their predecessors-in-title took the precaution of closing the entrance■into their land in order to protect it. The fact that these two adjacentlands had not been amalgamated and-.that there was a fence 20 years ,old between the two lands show that Lot- 1 continued to exist in its :own right. Mr. Ranganathan has also submitted-
That the deeds relied by the plaintiff-appellants including (p.4)which referred to the servitudes and was executed as late as 1957,constituted a sufficient devolution of title in respect of these landsincluding the servitude, and the plaintiffs-appellants were legallyentitled to them by virtue of this chain of title. There is also an 'additional factor that in deed (P6), which is the deed executed bythe 5th defendant in 197.0, a reference to the path continues topersist". (Pages 124-125).
Mr. Ranganathan has submitted that these circumstances tend tonegative that a waiver of these rights had taken place expressly or byimplication.,
Wanasundera, J. in dealing with these submissions has considered 'the authorities on Roman:Dutch Law-Voet, Grotius, Vanleeuwen,Walter Pereira's Laws of Ceylon and Lee's Introduction to Roman.Dutch Law, and held,that two modes of losing a right of servitudeunder Roman-Dutch Law are:-
Then Wanasundera, J. has ruled as follows: –
"The onus of establishing such waiver or abandonment is clearly .on the respondents and an intention to waive a legal right would not •be lightly presumed by the Court. They must show that theplaintiffs—appellants and their predecessor-in-title had. with full .knowledge of their rights, decided to abandon them, whether5expressly or by conduct plainly inconsistent with an intention toenforce them. This is not a case of an express waiver". (Page 125).
Wanasundera. J. proceeds to cite futher authorities on RomanDutch Law with reference to decided cases from South Africa andCeylon, which are referred to and has commented as follows-
"The defendants-respondents have virtually relied on the mereinaction on the part of the appellants in proof of their case. It is, nottheir case, that there was a communication of any express intentionby the plaintiffs-appellants to the effect that they were waiving theirrights. The conduct of the respondents during the relevant timedoes not show that they have been exercising or asserting anysignificant rights on their own, consequent on any conduct on thepart of the appellants from which they have inferred a waiver orsurrender of those rights". (Page 126).
Finally Wanasundera, J. has summed up as follows:
"In all the^circumstances of this case, I am of the view that thelearned trial Judge erred when he came to the conclusion that thoserights were lost by the plaintiffs-appellants and their immediatepredecessor-in-title by reason of waiver or non-user". (Page 126).
Having come to this conclusion Wanasundera. J. set aside thejudgment of the learned District Judge and entered judgment for theplaintiff as prayed for. It must be noted how relevant, apt and close tothe facts of this case before me, are the facts, and the submission ofMr. Ranganathan, Q.C. and his interpretation of the facts inChellappah's case, relied on by the learned District Judge, to hold thatthere was an abandonment of the servitude on the part of theplaintiffs-appellants.
The abandonment of a servitude has been categorised by the Juristsand text-writers into two forms of abandonment, expressabandonment and tacit abandonment.
"A servitude is lost when the dominant owner clearly andintentionally abandons it-Voet 8.6.5. (express abandonment). Tacitabandonment takes place when the servient-owner is permitted todo something which necessarily obstructs the exercise of theservitude, e.g. builds a house across a roadway, or raises hisbuildings when he is bound to receive the rainwater on his roof. Ifthe dominant owner has stood by, and permitted erection ofstructures which make his servitude inoperative, without takingsteps Jo prevent it….". (Voet 8.6.5, Grotius 2.37.4; Vanleeuwen,
R.D. Law 2.22.3; Servitudes-Hall and K'ellaway (p. 128).
In the case before me the facts indicate that the defendant haspleaded express abandonment by the plaintiff and hispredecessors-in-title. As such there is no need to discuss the Law andthe cases dealing with tacit abandonment.
In the case of Fernando v. Mendis (3) the plaintiff filed action andclaimed the right to draw water from a well standing on thedefendant's land which adjoins his land. The plaintiff alleged that thedefendants had filled up the well and have since prevented the plaintifffrom drawing water therefrom. It was proved in this action that thewell has been filled up with the consent of the plaintiff in the presenceof the Inspector of Police and the Headman. Grenier, J. held that thesefacts, showed an express abandonment of the right which the plaintiffhad acquired to draw water, by consenting to the closure of the well,and dismissed the plaintiff's actipn. The case of Nagamani v.' Vinayagamoorthy (4) was an instance where a right of way had been■ created by a deed. In his decision in this case Sampayo, J. has dealtwith the considerations that should prevail when a servitude is createdby a deed, which legal aspect I have already stated, I will deal with later.In this case it was proved that the' deed created a right of way, butthe evidence showed that the path so created in the servient tenementhad disappeared and there was no particular track to be seen. Thedefendants took up the position that the plaintiff did not pass exactlyover the route indicated in the deed, but in the most convenient way■over their land, that is, that the plaintiff merely passed over their landjust as they passed over his land. Sampayo. J. ruled that thisadmission of passing over the servient land negatived the idea ofabandonment, that the facts of this case were not covered by thedecision in the case of Fernando v. Mendis (supra), relied on by the. defendants, and held that on the facts of this case there was nodeliberate or intentional abandonment of the servitude by the plaintiff.
The learned authors of the textbook 'Servitudes*-Hall and Kellawayin dealing with the principles of abandonment of a servitude by thedominant owner give the following instances of abandonment –
"The position is. however, clear in the case where public noticehas been given and all have been cited who could be considered tohave any right over the servient land„and the land has been alienatedand transferred; if the dominant owner when not cited and warneddoes not enter appearance to assert his right he must be consideredto have abandoned it and consequently the servitude is lost (Voet8.6.14). Where the Court has after due notice to all interestedparties calling upon them to claim rights of servitude, ordered, indefault of any appearance, the land to be transferred free ofservitude, any servitude must be taken as terminated (Voet 8.6.5)".(Page 129).
These instances given by Hall and Kellaway with reference to Voet canonly be interpreted as two classic instances of express abandonmentof a servitude.
I will now consider whether on the facts of the case before me, andthe Law pertaining to abandonment as set out above, it can be heldthat in this instance that the plaintiff had abandoned his right to theuse of the roadway Lot B10 in issue. The case of Fernando v. Mendis(supra) is an instance in which the plaintiff had voluntarily given up aservitude-express abandonment. The case of Nagamani v.Vinayagamoorthy (supra) is an instance where it was held on the facts.that there was no deliberate intentional abandonment. The passagecited above from the text-Servitudes-Hall and Kellaway (Page 1 29)sets out two instances of express abandonment. Adopting theprinciples set ou,t by Wanasundera. J. in the case of Chellappah v.Ariyaratnam (supra), the principles set out in the other two casesreferred to above, and the citation from Hall and Kellaway, to the factsof this case before me, I,hold that on the facts-of this case, and thelegal principles applicable the plaintiff-appellant-petitioner has notabandoned his rights to the servitude in respect of Lot B1.0.
As stated earlier, both the original Court and the Court of Appealhave held that there has been both abandonment and non-user of theservitude by the plainfiff-appellant-petitioner, and as such he has losthis rights as dominant owner to the said lot roadway B10. Theconcept of non-user in this instance is closely tied up with the concept
of abandonment. The reasoning of these two Courts is that as therehas been an abandonment there has been a non-user, and that asthere has been a non-user there has been an abandonment.
I will consider whether the concept of non-user is applicable in our ,law. According'to the Roman-Dutch Law-Jurists “Praedial servitudesare classed as immovable property". Nathan Common Law of Southr Africa-(Vol. 1 2nd Ed. Page 343, Para 432). "A real servitude is a
fragment of the ownership of an immovable" . Introduction to
Roman-Dutch Law-R. W. Lee (5th Ed. Chap 6. Page 164). OurStatute Law-Prescription Ordinance, (C.L.E. Vol. Ill, Chap. 68)>-section 2 defines-"immovable property" as follows:
"shall be taken to include all shares and interests in such
property, and all rights, easements and servitudes thereuntobelonging or appertaining".
In the authoritative text Introduction to Roman-Dutch Law-R. W. Lee(5th Ed. Chap. 3. Page 130)-Lee deals with the acquisition andextinction on ownership in corporeal things. At page 144, Lee hassummed up how ownership is lost in corporeal things as follows:
"The modes of extinction of ownership are :-
■ Dereliction or abandonment of possession.
Accession (when it effects a transfer of ownership).
Expropriation by competent authority e.g. when land istaken Jor some public purpose.
Forfeiture for crime".
Thus, it will be seen that non-user is not set out as a mode ofextinction of ownership of any corporeal thing-immovable property. Itwas submitted by the learned Queen's Counsel for theplaintiff-appellant-petitioner that any loss of a right to a praedialservitude must be in accordance with the Law by which one losesone's rights to immovable property. Under our Law title to immovableproperty cannot be lost by non-user (non possession). It is clear that. one way of acquiring title to property is by prescription in terms ofSection 3 of the Prescription Ordinance. Prescription is not pleaded inthis action by any party. In the case of Nagamani v. Vinayagamoorthy
(supra), a right of way had been created by an ancient deed of Gift1907. and the plaintiff brought the action to assert the right of way socreated by deed. The defendant's position was that there was notrack to constitute the lane on those blocks, as such the plaintiffcannot exercise a right of way. In considering this defence Sampayo,
J.stated as follows:
“There is no doubt about the right created by the deed. It can onlybe lost by some means known' to law, such as an adverse rightcreated in favour of a servient tenement against the dominanttenement by means, for instance, of prescriptive possession. Thereis really no possibility in the present case, and I think it cannot beheld that the plaintiff lost the right of way by adverse prescriptivepossession on the part of the defendants". (Page 349).
The later case Senathiraja. v. Marimuttu (5). was an action claiming adeclaration of title to a servitude and right of way created by grant-bya series of deeds. In dealing with this claim Nagalingam, J. had made apassing reference to the loss of a servitude by non-user. Nagalingam.
J.held that the plaintiffs have established a right of way by a series ofdeeds and if the defendants denied that rigtht of way:
"It was for the defendants to establish either an abandonment bythe plaintiffs of their right or the loss of it by non-user", (emphasismine).
There is no further discussion in this case regarding the loss of theright to a servitude by non-user.
In the recent case referred to by me at length the case of Chellappahv. Subramaniam (supra) the learned District Judge held that theplaintiffs-"since 1942 had. tacitly abandoned the exercise of theserights or had lost them by non-user", (emphasis mine). UnderRoman-Dutch Law a right to a praedial servitude can be lost bynon-user for a period of one third of a century, that is 30 years. In theJudgment Wanasundera, J. states that-
"Mr. Ranaganathan submitted that this ground no longer obtainsin this country having regard to the provisions of the PrescriptionOrdinance, which provides the only means of divesting title in thesecircumstances". .
After making this observation Wanasundera, J. refers to the case ofSenathiraja v. Marimuttu (supra), and then observes that it wasunnecessary for him to decide that point as the period, of non-user
' required by-the law had not elapsed by the time the plaintiff-appellantfiled this action. It is pertinent to refer to the following dicta of Bonser,C.J. in a ease-dealing with the Prescription Ordinance the DivisionalBench case of Terunanse v. Menika (6):
s. “The Ordinance was passed, as I venture to think to protect actual* possessors only, and was intended to be used as a shield only and
not as a weapon of offenceIf the person in possession was
sued by the true owner, he could plead the .Ordinance, or he mighttake the initiative if possession was disturbed or threatened, andapply for a decree establishing his title and quieting him inpossession. The Ordinance differs essentially from the EnglishStatute of Limitations, which at the expiration of a period1, transfersthe ownership to the possesser arid extinguishes the title of the-original owner".
The submission of the learned counsel Ranganathan, Q.C. "that thelaw pertaining to the loss of praedial servitudes by'hon-user no longer.■ obtains in this'country"is supported by the decision in this case which'rul.ed as follows:
"The effect of Ordinance No. 22 of 1871 and No. 8 of 1834 is tosweep away all the’Roman-Dutch Law relating to the acquisition ofimmovable property by prescription except as regards property ofthe Crown".
Laterthe Divisional Bench-case of Emanis Appu v. Sadappu (7)-ofwhich Bonser, C.J. was a member followed the above ruling. I holdthat under our Law a person does not lose the right to any ownershipof immovable- property e.g., a- land, a servitude by merenon-possession (non-user). I hold that the District Court and the Courtof Appeal erred in law when it was' held that the plaintiff and hispredecessors-in-title lost the right to. the servitude-the right of wayB 10 by;-non-user:
Both the District Court and the Court of Appeal have ignored thefact that this right of way has been granted to the plaintiff and hispredecessors-in-title by notarial grants. These Courts have held thatRustomjee the original owner abandoned his rights to this right of wayLot B10 by building the wall "XY". and that the subsequent referencesto this right of way in the deeds of transfer by which title devolved onthe plaintiff were only notarial flourishes. Schedules 1, 2 and 3 of thetransfer deed to the plaintiff (P5) of 1971 dealt with the transfer of the
said lots B1, B2 and B3 and the Schedule 2 of the said deedspecifically deals with the transfer of the roadway Lot BIO. In theconstruction of this deed it cannot at all.be said that the 2nd Scheduleis a mere notarial flourish, and a repeat of what has been stated in thetransfer deeds.to the plaintiff's predecessors-in-title. The openingwords of the deed No. 63 can be considered as notarial■flourishes-"To Whom These Presents Shall Come-Send Greetings".But~the Schedule 2 cannot be considered in this light. It is an operativepart of the deed (P3). I hold that the title to the right of way B 10 hasdevolved on the plaintiff-appellant-petitioner on the title pleaded byhim.
The two English cases which I now refer to are of assistance todetermine the scope of a servitude created by grant. In the casebefore-me the case of the defendant-respondent was that thepredecessors-in-title of the plaintiff-appellant-petitioner did not useright of way B 10 created by a notarial grant and as such there was anabandonment and a non-user of this servitude. The Privy Council caseof Keewatin Power Company Limited v. Lake of Woods MillingCompany Limited (8) (On appeal from the Supreme Court of Ontario)was a dispute between these two parties in respect of two easementsgranted by patent to the appellant and respondent by the Crown to .use the water of a Lake. In the course of the judgment of the PrivyCouncil dismissing the appeal, His Lordship Viscount Dunedin ruled asfollows:
"When you are dealing with grant, the grantee may always if hechooses, not exercise his right under the grant to the full without inany way prejudicing his full right, if he finds it convenient to use it".(Page 657).
In the case of Bulstrode v. Lambert (9) the facts were as follows:-
In 1944 the plaintiff's father sold bya conveyance a premisesreserving to himself the right of way to take vehicles to and fro alonga roadway. But this reserved right of way was not used. Theplaintiff's father died in 1950. In 1951 the defendant bacame theowner of the said premises sold in 1944 by the plaintiff's father.The defendant improved the roadway which enabled heavy vehiclesto use it. Then the plaintiff claimed the right to use this roadwayreserved by the deed of conveyance, to the plaintiff'spredecessor-in-title, and brought this action to assert the right. In
Appeal Upjohn. J. who held that the plaintiff was entitled to use theright of way, cited and followed the dictum of Viscount Dunedin, (inthe Privy Council case) quoted above. The principle decided in thesetwo cases referred to above is relevant to the case before me.
For the reasons stated above I hold that the District Court and theCourt of Appeal have erred in law in dismissing the action of theplaintiff-appellant-petitioner, and set aside the judgments of theDistrict .Court and that of the Court of Appeal, and give judgmentto the plaintiff-.appellant-petitioner as prayed for. Theplaintiff-appellant-petitoner will be entitled to costs of this Court, in theCourt of Appeal and the District Court. Appeal allowed with costs.
WANASUNDERA, J. – I agree.
RANASINGHE, J. – I agree. ,
Appeal allowed.