050-NLR-NLR-V-65-B.-R.-E.-PERERA-and-another-and-M.-WIJEKOON-Respondent.pdf
HERAT, J.—Per era v. Wijekoon
239
1962Present: Herat, J., and G. P. A. Silva, J.
R. E. PERERA and another, and M. WIJEKOON,
Respondent
S. C. 65 (Inty.)jJ.962—D. C. Colombo, 9120IL
Co-owners—Deed of partition—Portion of corpus retained in common to serve as aroad—Obstruction by one co-owner—Action instituted by the other co-ownersclaiming their use to the common road—Maintainability—Joinder of partiesand causes of action—Servitudes.
A, B and C executed a deed of partition in respect of a land owned by themin common. A portion of the land was, however, left undivided to serve as acommon, road for the use of the various allottees. Subsequently C obstructedthe use of the road by A and B.
Held, that it was open to A and B to maintain an action against C to havetheir use to the common road vindicated and the obstruction removed. Insuch a case, there is no misjoinder of parties and causes of action, for the actionis really one for declaration as to the rights of co-owners and not for a decla-ration for a servitude.
Appeal from an order of the District Court, Colombo.
jR. P. Qoonetilleke, with D. C. W. Wickramasekera, for Plaintiffs-Appellants.
M.M. Kumarakuiasingham, for Defendant-Respondent.
December 3, 1962. Hebat, J.—
The two plaintiffs-appellants and their sister owned a land calledKoskumbura Estate in common. At a certain stage by a deed of parti-tion they divided up this land into several lots as shown in plan, copyof which is marked P 1, allotting to themselves in several deeds andseparate ownership various lots. A portion of the land owned in commonwas, however, left undivided to serve as a common road for the use ofvarious allottees. That common road is depicted in the plan P 1towards the south between dotted lines.
The case for the plaintiffs-appellants was that their sister, thedefendant-respondent, had obstructed the use of the road by the two plain-tiffs by obstructing that use at the points X and Y in P 1. They there-fore brought this action to have their use to the common road vindicatedand the obstruction removed. A preliminary point was taken thatthe action could not be maintained on the ground of misjoinder of partiesand causes of action. The learned District Judge, purporting to follow
HERAT, J.—Perera t>. Wijekoon
tO
the judgment of the late Mr. Justice Driebarg in the case of Fernando v.De Silva1, upheld this point and dismissed (die plaintiffs'action. From that order the plaintiffs have appealed to this Court.We are of opinion that the appeal should be allowed. In the case decidedby Mr. Justice Driebarg a land had been owned in common and hadbeen subsequently partitioned by deed into several lots. These severallots, as a result of the partition, were owned in separate ownership. Anumber of these separate owners of these separate lots brought one actionfor a declaration of a right of way of necessity over another land ownedby a third party. Clearly, in that instance there was a mis-joinder ofparties and causes of action. Each owner of each separate lot wasentitled to a via necessitatis over the servient tenement owned by thethird party. There was nothing joint in that right of servitude betweenone owner of a separate lob and any one or other of the other ownersof the other separate lots, and, if we may say so with respect, Mr. JusticeDrieberg was clearly right when he came to the conclusion that therewas a mis-joinder of parties and causes of action. On the other hand,the present action is really one for the declaration as to the rights ofco-owners and not a declaration for a servitude. It is an action broughtby two out of the three co-owners against the third co-owner for a declara-tion that the two plaintiffs co-owners are entitled to the normal andcommon use to which a land owned in common by the plaintiffs co-ownersand the defendant co-owner was meant to be used. The portion of landretained iu common is owned by the plaintiffs and their sister in common,and the purpose of retaining it in common was for all three to use itas a road to serve the various lands which they owned in separate owner-ship and which received access through this common lot. If one co-owner, namely the defendant sister, took upon herself the task of obstruct-ing her two co-owner brothers from exercising their rights as co-ownersof the reasonable use of the common land, these two co-owners had a jointcause of action against the erring co-owner, and they certainly couldmaintain one action to vindicate their rights. We think that the pre-liminary point raised against the plaintiffs-appellants should have beendecided in their favour. We, therefore, set aside the order of the learnedDistrict Judge dismissing the plaintiffs5 action on this preliminarypoint and remit the case to proceed to trial before another DistrictJudge.
The plaintiffs-appellanfcs will be entitled to their costs of appeal.
P. A. Silva, J.—I agree.
Appeal allowed.
1 {1928) 80 N. L. B. SO.