HEARNE J.—Abeytunge and Siyadoris.
1943Present: Hearne J.
ABEYTUNGE, Appellant, and SIYADORIS et al., Respondent.
113—C. R. Galle, 21,811.
Cartway of necessity—Claim in one action against contiguous lands ownedby several defendants—No misjoinder of causes of action.
Where the plaintiff in one action claimed a right of cartway of necessityover several contiguous lands which were owned by different sets ofowners,—
Held, that there was no misjoinder of causes of action and parties.
The denial of. a right of cartway based upon necessity by each set ofco-owners is a denial of the entire right and gives rise to one and thesame cause of action.
^^PPEAL from a judgment of the Commissioner of Requests, Galle.
V. Ranawake, for plaintiff, appellant.
E. F. N. Gratiaen (with him Ivor Misso), for fourth, fifth, and sixteenth *defendants,. respondents.
Cur. adv. vult.
March 12, 1943. Heabne J.—
'l'he plaintiff claimed a right of cartway of necessity to a road througha parcel of land of which the sixteenth defendant-respondent is amongstothers a co-owner, then through a parcel of h*ud of which the fourth and
HEARNE J.—Abeytunge and Siyadaris.
fifth defendants-respondents are amongst others co-owners and finallythrough a third parcel of land of which the first, second and third defend-ants-respondents are amongst others co-owners. The Commissioneracceded to the argument that there was misjoinder of causes of actionand of parties and dismissed the suit.
In de Silva v. Nonohamy et el.', the plaintiff claimed to be entitled to aright of way which traversed a number of contiguous lands and, on beingdisturbed in his enjoyment of the right of way by the owner of one of theJands, he brought an action against the owner for a declaration of hisright and damages.
It was held that in these circumstances it was not necessary for himto join as parties the owners of intermediate lands, that the action wasproperly constituted without their being joined, and that the plaintiff wasentitled to proceed against the particular owner referred to alone, even if itappeared in the course of the proceedings that another owner of anintervening land also denied the right of way which the plaintiff claimed.
In this event the Court could exercise its powers under section 18 ofthe Civil Procedure Code.
In Fernando v. Amolis 2 Drieberg J. said he was not sure if relief issought against a defendant by declaration of a right of way over his land,the owner of an intervening land must also be joined as a party. But heindicated that in his opinion if the intervening owner also denied theright of way, the Court in the hope of reaching finality in the mattershould order that he be joined as a party. His actual words were “I amnot sure that the owner of an intervening land must in all cases be madea party to the action; but where the right of way over an interveningland is denied by the owner of it his presence before the Court becomesnecessary in order to enable the Court effectually and completely toadjudicate and settle all questions involved in the action and to avoidfurther litigation ”.
(In the order that was made the Court (Lyall Grant and Drieberg JJ.)gave the respondents permission to bring a fresh action “ making partiesto it all the co-owners of Delgahawatta (over which the right of Way wasclaimed) and the owner or owners of Ambalanduwakurundewatta (theintervening land) ”.
In Perera v. Fernando5 Wood Renton C.J. was of the opinion that,where a right of way is claimed over two distinct lands, the one belongingto the first defendant and the other to the second and third defendants,the causes of action are distinct, and the owners should not have beensued in the same action.
In de Silva v. Nonohamy (supra) Macdonell C.J. cited Perera v. Fernando(supra) with approval but the purpose for which he cited it must be noted.
The question before him was whether the owner of an intervening landneed be joined and he cited Perera v. Fernando in order to show thatsuch owner need not be joined. But in adopting Perera v. Fernandofor the purpose of deciding the matter he was considering, it. mustnot be taken for granted that he adopted all the implications of thatdecision. Garvin S.P.J. did not cite it. Jayawardene A.J. did, but onlyfor the limited purpose I have mentioned.
‘ 34 X. L. R. 113.3 32 X. L. R. 32S.3 4 C. Tf. R. 148.
HEARNE J.—Abeytunge and Siyadoris.
I think that Perera v. Fernando must be read with referenceto the particular facts of that case. It was only the first defendantwho interfered by an overt act with the right of way the plaintiff claimedand the case is little more than direct authority for saying that thesecond and third defendants who had up to the time of action notchallenged the plaintiff's right of way, should not, in those circumstances,have been made parties.
An examination of the authorities seems to lead to this result. If aplaintiff claims that he is entitled to an existing right of way in his favour,and one of the owners of several lands traversed by the right of waydisturbs his enjoyment of it, he may file an action against such owneralone. It is unnecessary to make the owners of intervening parcels ofland who do not or have not challenged the plaintiff’s right of way parties.If’, however, any owner of an intervening land also disputes the plaintiff’sright of way he may and indeed should be made a party. In this eventno misjoinder arises.
All these authorities deal with a right of way which the plaintiffasserted had previously existed. What is the position when he seeks tohave a right of way (of necessity) which had not previously existeddecreed in his favour ? It is argued- by Counsel for the respondents tothis appeal that there is a separate and distinct cause of action in regardto each parcel of land over which the plaintiff seeks to exercise a rightof way, and that these separate causes of action against different partiescannot -be joined in one suit.
There is only one case that seems to have any bearing on the subject,and it is claimed by the respondents to be in their favour. In that case,Dias v. Amarasinghe ’, de Sampayo J. said : “ It. is no doubt true thatthe owner of land cannot establish a servitude of way over a land notadjoining his own unless he has a right over the intervening lands. Butthis case has a peculiarity of its own. The plaintiff does not claim a presentright of way but he asks the Court to grant him one of necessity. In thatstate of things I do not think it against principle for the Court to giveit by taking the lands separately. The plaintiff in this action may yetbring an action similar to this against the owners of the interveninglands and ask the Court for a similar decree ”. I do not think the claimof the respondents is justified. The case decides that the plaintiff mayproceed against owners of contiguous lands over all of which he claims aright of way of necessity one at a time. It does not decide that he cannotproceed against all together. Where, therefore, the right of way is oneof necessity, the particular problem that has to be decided in this caseappears to be free of local authority. It must be decided on first principles.
Now, on what principle did the Judges in Fernando v-. Amolis1 permitthe plaintiff to join as parties the co-owners of Dalgahawatta (over whichthe right of way was claimed) and the owner or owners of Ambalanduwa-kurundewatta (the intervening land) who also disputed the right of way ?On the principle, I take – it, that the servitude is indivisibleand that a cause of action being inter alia, the denial of a right, each ofthe two sets of co-owners in denying to the plaintiff the right to proceedover a parcel of land owned in common, ipso facto denied to the plaintiff
2 32 X. L. X. 328
1 i C. Tl R. 269.
KEUNEMAN J.—Jamila Umma and Jailabdeen.187
the exercise of an indivisible right and was thus liable to be sued inrespect of the same cause of action. It is, I think, clear that this followsfrom the fact that if the right is interrupted at one point, it effectuallybrings the whole servitude to an end. No doubt a part is less than thewhole. But in the case of a servitude the denial of a part is the denialof the whole.
I see no reason why the same principle should not apply when a rightof way is claimed of necessity. It may be that the claim of th§ plaintiffis fantastic. But if necessity can be established, the denial of a “ right ”based upon necessity by each set of co-owners is the denial of one entireright and gives rise to one and the same cause of action. Each set mayhave a different defence. The denial of necessity may be based on varyingconsiderations. But this does not, in my opinion, mean that the causesof action are distinct. There is one denial possibly based on differentgrounds.
1 allow the appeal with costs. The case will go back for trial in theordinary way. All costs in the trial Court will be in the discretion ofthat Court.
. .Appeal allowed.