CAAmaradasa and Others325
AMARADASA AND OTHERSCOURT OF APPEALEKANAYAKE, J.
DC KEGALLE 1515/LJULY 12, 2007
Servitudes – Rustic servitudes – Unsafe to act on mere assertions?Acquisition by prescription or by transfer of land and right to use the land -Footpath only?
There is an absence of proof that the unallotted path had been acquired bythe plaintiff by prescription or grant or by transfer of land and right to use
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the land. Unless and until the plaintiff's legal entitlement with proof as theunallotted path is established there cannot be and one cannot urge anyobstruction to that path or claim a right of way.
A person who has a right of way for using a footpath over the interveningland cannot claim to have a right for lands over the adjoining field.
In the absence of cogent evidence and evidence uncorroborated toestablish a servitude the defendant should not be made to suffer andenable the plaintiff to use a right of way for his convenience. It would beunsafe to act on mere assertions to especially when servitude is claimed.
APPEAL from the judgment of the District Court of Kegalle.
Cases referred to:
Coranelis Singho v Perera 63 NLR 48.
Karunaratne v Gabrial Appuhamy 15 NLR 257.
Hendrick v Sarnelis 41 NLR 519.
Thambapillai v Nagammapillai 52 NLR 225.
Rajentheram v Sivarajah 66 NLR 324.
Muthaliph v Mansoor 39 NLR 316.
Samarasekera v Ramanathan Chetty 10 CLW 169.
Thamboo v Annammah 36 NLR 330.
Champaka Ladduwahetty for 1A defendant-appellant.
L.K.f. Perera for plaintiff-respondent.
October 15, 2007
GOONERATNE, J.This was an action filed in the District Court of Kegalle to obtain adeclaration of title to the encroached portion of land as in prayer (a)and (b) to the amended plaint and for recovery of possession-removalof obstruction (as in prayer 'c' &'d') and damages. The proceedings inthe District Court indicate that parties had raised 16 issues which wereaccepted, by court. At the hearing of this appeal the learned Counselfor the defendant-appellant conceded that he has no disputeregarding issue No. 1, and invited this Court to consider issue No. 8as being the crucial issue in this case. Perusal of same would indicatethat the entire case in the Trial Court and in this appeal would relateto the matters connected to the said issue along with issue Nos. 6, 7,and 12, which would also decide this appeal. The learned Counsel forthe defendant-appellant also contended that only a final decree (P4)would create rights and not a final plan and that he would rely to a
CAAmaradasa and Others (Anil Gooneratne, J.)327
great extent on P4 (final decree).
Learned Counsel for the respondent conceded that based on thefinal decree he cannot claim a right of way and that his position wasthat his claim is based on prescription beginning from the year 1960.
Counsel for the defendant-appellant also submitted to this Courtthat the question of prescription was not put in issue at the trial court.
However it is important to ascertain as to how title devolved oneach party, by reference to the earlier final decree. (P4-Case No.2444) dated 7.6.1946. According to the said decree the extent of landis 3 Roods 31 Perches as shown in plan 560 B of 1945. Schedule toP4 refer to lot 1, 1 A, 2 and 2A. Lot 1 and 1A had been allotted to oneSanchiya plaintiff in that case, and lot 2 to 3rd defendant (presentdefendant) plaintiff in his evidence goes further and admit that lot 1and 1A had been allotted to Sanchiya and lot 2 and 2A allotted to thedefendant in terms of the earlier partition case. The dispute seems tobe the obstruction caused to plaintiff by the defendant as shown as‘X1 in plan P1, Issue No. 8 had been raised, I believe to invite Courtto decide on same. In P4, (decree) plaintiff in the earlier case hadbeen given a right of foot path 3 feet width by the edge of thesouthern boundary of lot 2 and 2A for the High Road.
In the petition of appeal filed in this case the appellant inter aliapleads that:
The previous partition case 2444 the appellant was allottedlots 2 and 2A in plan 5606/1964 and had entered intopossession after final decree of 1946 and is in possession ofthe said lots for over 40 years. Any encroachment would havetaken place 40 years ago and had acquired prescriptive title tosame.
Date of encroachment as suggested by plaintiff-respondentwas 10th November 1970. In cross-examination of plaintiff thedate admitted was a date in 1971. Surveyor Kurukulasooriyawho surveyed the land on 4.1.1968 refer to encroachment. Ifany encroachment took place as indicated, in 1968 by theSurveyor, defendant-appellant had possessed the allegedencroachment for over 18 years. In any event it had to be adate prior to 10th November 1970.
Learned District Judge had been misdirected on the right of
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foot path allowed by partition decree No. 2444 of 1946, on thesouthern boundary of lots 2 and 2A which was allotted to theplaintiff-respondent. The alleged obstruction pointed out byplaintiff is far away from the foot path as shown in the plan.Evidence on obstruction not corroborated other than by theevidence of plaintiff.
It would be prudent to identify and ascertain plaintiff's anddefendant's soil rights which needs to be traced from the earlierpartition decree 2444. The defendant was allotted lots 2 and 2A inplan No. 560/B according to partition decree 2444. The plaintiff in thatcase (2444) Sanchiya had been allotted lots 1 and 1A in the saidplan. There is no dispute on this division. It is also decreed that theplaintiff sanchiya be given a right of foot path – 3 feet width by theedge of the southern boundary of lots 2 and 2A. P3 and P4 are plan560B and decree in Case No. 2444 respectively. On perusing P3 1find that lots 1 and 2 are both adjacent to the main road. (Udugodato Kegalle) Lots 1A and 2A are situated close to the Ela shown in thatplan. It would not be incorrect to observe that both Sanchiya and thedefendant in the present case who was the 3rd defendant in case2444 have access to the main road according to P3. Sanchiya had aright of foot path not across lot 2 and 2A but at the edge of those lotsto the south.
Sanchiya named above had transferred the property as in theamended plaint paragraphs 2 – 5 to the persons named therein andfinally to the plaintiff. Therefore the plaintiff could only own andpossess what was decreed to sanchiya in case No. 2444. As suchplaintiff would be entitled to lots 1 and 1 A, and to the right of foot pathas decreed above. Plaintiff had purchased the land in question on orabout 1967. (paragraph 5 of the Amended plaint). By the time theplaintiff purchased the property the defendant was already inpossession of lots 2 and 2A in terms of the decree in case No. 2444.(about 23 years).
Issue Nos. 6 and 7 refer to a right of way shown in plan No.560/1943 filed in Case No. 2444 and the obstruction caused byDefendant shown as 'x' in plan No. 801. decree in case No. 2444,only a right of foot path was given to the Plaintiff's predecessors intitle and not a right of way (road). The point 'x' in plan 801 seems tobe the middle of the land in dispute, where as the decree permitted
CAAmaradasa and Others (Anil Gooneratne, J.)329
a foot path at the edge of lots 2 and 2a. A foot path would be a smallpath to enable people to walk by foot and not big enough for a vehicleor cart to be driven on same. If issue Nos. 6 and 7 are to beanswered in favour of the plaintiff the point of time plaintiff acquired aright of way and the basis of his claim to that would have to beestablished in order to negate what was decreed in Case No. 2444.It would be necessary to examine the evidence led at the trial beforeany view could be expressed on the judgment of the District Court.
I would at this point refer to the following authority on servitudesas it would be necessary to understand it's nature, right andownership before proceeding to examine the evidence led in thiscase.
The laws of Ceylon Cecil Walter Perera 2nd Edition pg. 487Chapter III.
SERVITUDESTHE right of servitude according to Van de Linden is a sort of realright whereby an inheritance, whether it be a house or land, is boundor subject to the use or convenience of a neighbouring house or land.The servitude or use may, he says, be also of the thing to a person (m).Van Leeuwen defines it as a species of imperfect property and a rightless extensive than usufruct. He says it is the right of prohibitingsomething or doing something to or in the house of another or upon hisland for our own benefit and above our ordinary legal right (n). Grotiusthus explains the nature of the right-Ownership is either full orqualified. Qualified ownership is that property in a thing to which thereis something wanting which prevents the owner from doing with itwhatever he pleases although not forbidden by the common law.Where there is qualified ownership, whatever is wanting to onebelongs to another, who consequently has also a qualified ownership;for instance, a person who has a right of footpath over land has no fullownership, for he may not sell the land or claim the fruits thereof, bothof which are included in full ownership, while the person who has toallow the footpath has not the full ownership either, for he may notprohibit the other from coming on to his land, a right which is a part ofownership.
For the sake of distinction the term "ownership' is confined to therights of the person who has the larger share in the ownership he beingthe one who may sell and let the land, and the lesser share is called a
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privilege, such as the right of footpath for instance.
It was the evidence of Surveyor Kurukulasooriya that he visitedthe land in question and has in his plan No. 801 show the extentpossessed by the plaintiff. Plan 801 is marked as P1 and the reportas P2. Plaintiff occupies lots 1 and 4 in plan P1. P1 hassuperimposed plan 560 B/1945 relating to case No. 2444.Superimposition is shown in red in plan P1. Plan P1 shows lot 1Aofplan 560 B/1945 as lots 1 & 3 and lot 1 of 560 B/1945 as lots 5 and
Obstruction shown as XI which obstruction is placed beforeentering plaintiff's land. In cross-examination Surveyor states thatsuperimposition is not correct but is acceptable to be reliable. (Pg.108 of the brief). Surveyor admits the following in cross-examination.
Difference in extent of the 2 plans (p1 and 560B) is about .25perches.
lot 2A in earlier case had been allotted to the defendantwithout any encumbrances.
Road shown in lot 2A in earlier plan is a part of the said lot2A.
Lot 2A not fully superimposed on plan P1, only half had beensuperimposed.
Cannot see any changes in plaintiff's lots and defendant'slots.
Plaintiff's lot would not be a paddy field.
Unable to state whether lot 2A in the present day situationhad increased or decreased in extent with reference to P3.
In terms of the decree the road shown in the plan isunallotted. (It seems to be the road way shown in the middle
and going across lot 2A).
In the report of the Surveyor (P2) lot 3 and 5 of P1 is shown asan encroachment.
On the above evidence of the Surveyor, the District Judgeexpressed her views on the evidence led at the trial and narrates theevidence of Surveyor Kurukulasooriya, and states that plaintiffconfirms the evidence of Surveyor as regards the obstruction shownas 'x' and the encroachment depicted as lots 3 and 5 in P1. Furtherthe difference in extent shown in both earlier plan and P1 is only .25perches which is negligible and as such P1 is reliable. (The extent
Karol is v
CAAmaradasa and Others (Anil Gooneratne, J.)331
should read as .25 perches and not 2.5 perches as District Judgenarrates the evidence of Surveyor Kurukulasooriya).
The Grama Sevaka has also given evidence. This evidenceseems to be supporting the defendant’s more than the plaintiffthough he was called by the plaintiff one cannot rely on his evidenceto be cogent evidence to establish a right of way and demonstrateany obstruction across such right of way. This Court cannot give anybenefit to the plaintiff for relying on the evidence of the GramaSevaka as it is apparent that the witness had not been able tosupport the plaintiff's version.
It is the position of the defendant that since 1945, defendantpossessed lots 2 and 2A in plan P3 and that if there was anyencroachment as suggested by the plaintiff, possession by thedefendant of the land in dispute had been since 1945. Other than theevidence of the defendant, on this aspect I cannot find any evidenceto negate the position of the defendant. Decree in Case No. 2444would only give the plaintiff a right of footpath on the southernboundary of lots 2 and 2A and not across lots 2 A in plan P3.Therefore the plaintiff should establish by clear evidence that he andhis predecessors in title used the right of way shown in plan P3.(across lot 2A). By P4 plaintiff's predecessors in title was never givena right of way across lots 2A, although P3 indicates a path (shown indotted red colour lines). The evidence on this point as stated by theSurveyor is that the path remains unallotted. Nor does P4 refer to thispath other than the foot path allotted to plaintiff's predecessors in title.
It is plaintiff's evidence that he purchased lots 1 and 1A the landin question by deed P7 (No. 163 of 13.11.1967) and thereafter cameinto possession. (There is no mention of a specific date). He alsotestify that the defendant had fenced the southern side of lot A andcaused an obstruction to the foot path. He also testify about theencroachment shown as lots 3 and 5 in P1. Encroachment was in1970. He stated that the right of way had been in use for generation,and that he had been using this road. It is 3 1/2 feet in width. In crossexamination plaintiff admits the following:
His grand-father was a party in the earlier partition Case No.
2444 but had not been allotted any share/right.
He has been litigating with the defendant since purchase of the
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land and also filed action against one Bodiratne for fencing theNorthern Province of the land in dispute.
Thereafter in 1971 defendant obstructed and fenced.
Amended plaint dated 10.12.1987.
Bodhiratne's case terminated on 16.3.1971 (D5).
Up to 1970 undisturbed possession of land.
Lot 3 in plan P1 encroached in 1973.
Disputed Lot 1 and 1A 1970 and 1973.
Though the decree in case No. 2444 had been entered over 60years ago the rights of both plaintiff and defendant needs to betraced to the said decree, and the right of footpath recognised atthat point of time cannot be ignored. Plaintiff came into possessionof the land in dispute only after 1967. Defendant had been inpossession since 1946. A period of about 22 years between dateof decree and transfer of lots 1 and 1A to plaintiff is a period whereonly defendant's version is available to Court. In the absence of theplaintiff during this period and lack of material to establish anotherright of way in the manner pleaded by plaintiff from a witness whocould testify about the past situation to support plaintiff or hispredecessors in title makes the plaintiffs case a weak caseespecially when one seeks to enforce a right of way. Legally onlythe footpath recognised in decree 2444 could be enforced, unlessthe right of way suggested by plaintiff was acquired by prescriptionor grant or by reservation when owner transfers land.
At this juncture I would refer to another authority to ascertain thenature of Rustic Servitudes to include footpath. Principles of CeylonLaw – H.W. Tambiah Q.C. – pg. 292/293.
Where a footpath goes through several lands, it is very commonin the rural areas of Ceylon to have stiles along the footpath inplaces where such paths cross the lands. The presence of suchstiles do not in any way nullify the right of a dominant owner to havea servitude of footpath over another man's land (Cornells Singho vPerera)<1>.
In Ceylon a right of way is mainly acquired by grant or by areservation when an owner transfers his land to another or byprescription. In any event it has to be a defined tract (Karunaratne
CAAmaradasa and Others ( Anil Gooneratne. J.)333
v Gabriel Appuhamyf2). Where a right of way is given in generalterms without assigning a defined path the selection of the pathrests with the owner of the dominant land. But he may change itslocation if it can be done without damage to the owner of theservient tenement (Hahlo and Kahn, p604).
A right of way is also acquired by prescription (Section 5Prescription Ordinance), in order that a person may acquire aservitude by prescription, there should be adverse user for a periodof more than ten years over a defined path. Mere straying over partsof land which was allowed for the purpose of convenience is notsufficient to acquire a servitude by prescription (Karunaratne vGabrial Appuhamy) (supra). Under the law of Ceylon where a righthas been acquired for a path by prescription, it could only beexchanged by a national grant. A servitude over a new path may alsobe acquired by using another defined path and by abandoning theold one (Hendrick v SarnelisY3). Thambapillai v NagamanipillaW.
Very often when a piece of land is divided among co-owners bycross-conveyances, a narrow portion is left to be used as a path. Insuch a case the narrow strip is co-owned land which is intended tobe used as a path, and a co-owner who uses it as a path does notpossess the right of a servitude but of a common ownership (seedictum of Tambiah, J. in Rajentheram v SivarajanfiY Muthaliph vMansoor<6Y Servitudes acquired by prescription must be continousand must be of the same nature. Thus, a person who has a right ofway for using a footpath over an intervening land cannot claim tohave a right for carts over the adjoining fields (Samarasekera vRamanathan Chetty<7). When a person has the right of way, not onlyhe but his servants, guest, visitors and labourers can also use it.Since servitudes are onerous in nature, one co-owner cannot grantone without the concurrence and consent of all the co-owners(Thamboo v Annammahy8>.
The original plaint in this case had been filed in 1977. Amendedplaint filed in 1987 (10 years later) and parties proceeded to trial onthe amended pleadings. The District Judge has failed to consider thelong possession of the defendant. Since 1946, which had not beencontradicted by the plaintiff, and proceeded to give judgment infavour of the plaintiff stating that the action was filed in 1977 and assuch defendant had not prescribed to the land for the reason that the
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10 year requirement of undisturbed and independent possession hadnot been proved. It is my view that the Trial Court Judge has notproperly examined the evidence on prescription of the land to theportion possessed by the defendant. The documents relied byplaintiff marked P8 and P9 relate to disputes concerning paddy fieldsand not obstruction as urged by plaintiff, to a right of way. Althoughthe Surveyor had in evidence suggested an encroachment theDistrict Judge had not considered the question of long possession ofthe defendant to the area shown as lots 3 and 5 in plan P1, which thedefendant possessed since 1946. The District Judge had beenmisdirected on the question of right of way and failed to consider theprevious partition decree in case No. 2444, which permitted a right offoot path on a defined tract. Instead, the trial Court Judge hadthought it fit to answer issue Nos 6 – 8 in favour of the plaintiff whichrelated to an unallotted path. There is an absence of proof that theunallotted path had been acquired by the plaintiff by prescription orgrant or by transfer of land and right to use the land. Unless and untilplaintiff's legal entitlement with proof as above to the unallotted pathis established there cannot be and one cannot urge any obstructionto that path or claim a right of way. Further the unallotted path seemsto be going across lot 2A (allotted to the defendant). In the absenceof cogent evidence and evidence uncorroborated to establish aservitude the defendant should not be made to suffer and enableplaintiff to use a right of way for his convenience. It would be unsafeto act on mere assertions especially when servitude is claimed.
In the above circumstances I set aside the judgment of the DistrictCourt and hold that issue Nos. 4 to 8 and 9 to 13 should be answeredin favour of the defendant and that the plaintiff's action should bedismissed. This appeal is allowed with costs fixed at Rs. 10,000/-.
EKANAYAKE J.I agree.
KAROLIS v. AMARADASA AND OTHERS