089-NLR-NLR-V-61-ABRAHAM-SILVA-Appellant-and-CHANDRAWIMALA-and-others-Respondent.pdf
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Abraham Silva v. Chandra wimala
Present : Basnayake, C. J., and Sinnetamby, J.ABRAHAM SELVA, Appellant, and CHATEDRA w nTAT,A and others,
Respondents
S. C. 144^-D. C. Colombo, 6767 jL
Servitudes—Sight of way—Route connecting two lands of same owner—Acquisitionby prescriptive user—Prescription Ordinance, s. 3.
A right of way may he acquired by prescriptive user over an intervening landfor the purpose of going from one land of a person to another land of the sameperson. Such a right is a praedial, and not a personal, servitude and may passto the persons to whom the person who has acquired it conveys the dominanttenement.
– BASNAYAKE, C.J.—Abraham Silva v. Chandra initnala
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i^k-PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.G., with J. M. Jayamanne and Miss MaureenSeneviratne, for 1st Defendant-Appellant.
JV. E. Weerasooria, Q.G., with H. W. Jayewardene, Q.C., and
W.D. Chmasekera, for Plaintiffs-Respondents. .
Gw. adv. vult.
December 8, 1958. Basnayake, C.J.—
The sole question for determination on this appeal is whether theowner of an allotment of land on which he resides can by user acquireover the adjoining land of which he is not the owner a right of cart wayin order to go to and from his field and owita for the purpose of cultivatingthem and gathering the produce thereof and transporting it to his dwellinghouse.
Shortly the facts are as follows : The plaintiffs reside on a land marked
A ” in plan " X They are also the owners of an owita marked " J1 ”and a paddy field marked “ G ” some distance away. To get to theowita and the paddy field and transport the produce thereof to theirhouse the plaintiffs claim that they have used for over thirty-five yearsthe track “ C ” over the 1st defendant-appellant's intervening land andthe path “ D ” over the property of another named S. T. de Costa. Thelearned District Judge holds that the plaintiffs are now the owners oflot “ A ” and of the owita “ F ” and the field “ G ” in plan " X ” whichtheir father had owned immediately before them. He holds that theirfather and the plaintiffs themselves used track “ C ” to transport by cartstheir produce from lot “ A ” to the owita and the field, for well over aperiod of ten years, and that they are entitled to a decree in their favourin respect of the cartway “ C ” claimed by them.
Learned counsel for the 1st defendant-appellant did not challenge thefinding of fact but he urged, as a matter of law, that a right of waycannot be acquired by user over an intervening land for the purpose ofgoing from one land of a person to another land of the same person.That in any event such a right is a personal servitude and does not passto the persons to whom the person who has acquired the right conveysthe dominant tenement. He also submitted that the servitude claimedwas not one known to the Roman-Dutch law.
The first question that has to he considered is whether the plaintiffsare entitled to a decree in their favour under section 3 of the PrescriptionOrdinance. That they and their predecessor, their father, have used theright of way is not challenged in appeal. Does user of a right of wayconstitute possession within the meaning of that expression in section 3 ?
860BASHAYAKE, C. J.—Abraham Silva v. Chandravnmala
This very question arose for decision, under the corresponding provisionof the repealed Prescription Ordinance, Ho. 8 of 1834, in the case ofAyanker Nager v. Sinatty 1 and the Collective Court held that the words“ possession of immovable property ” applied to the enjoyment of a rightof way. It defined “possession” when applied to a servitude suchas jus itineris, to he the exercise of jus in re? with the animus of using itas your own as of right, not by mere force, not by stealth, and not as amatter of favour, nec vi, neo clam, nec precario. It also held that thewords of the Ordinance of 1834, which are in exactly the same terms asthe Prescription Ordinance of 1871 now in force, applied to servitudesof way, water, light and numerous others. The judgment quotes thefollowing extract from Smith’s Dictionary of Greek and Roman Anti-quities which bears repetition—■
“ Though things incorporeal are not strictly objects of possession,yet there is a juris quasi possessio of them, as for instance in the caseof servitudes (easements). The exercise of a right of this kind isanalogous to the possession of a corporeal thing, in other words, asreal possession consists in the exercise of ownership, so this kind ofpossession, which is fashioned from analogy to the other, consists inthe exercise of jus in re or of one of the component parts of ownership.In the case of possession, it is the thing (corpus) which is possessed,and not the property; by analogy then, we should not say that theservitus or the jus in re is possessed, but as in the case of jus in rethere is nothing to which the notion of possession can be attached,while in the case of ownership there is the thing to which we apply thenotion of possession. We are compelled to resort to the expressionjuris quasi possessio, by which nothing more is meant than the exerciseof a jus in re, which exereise has the same relation to the jus in re thatproper possession has to ownership. ”
The view taken in Ayanker Nagar’s case was also taken in the case ofKarunaratne v. Gabriel Appuhamy 2, although the legal position was notdiscussed in the latter case in the same way as in the former. There isnothing in the report to show that Ayanker Nager’s case was cited.Lascelles C.J. observed—
" In the system of law which prevails in Ceylon rights of way areacquired by user under the Prescription Ordinance, and the courseor track over which the right is acquired is necessarily strictlydefined. ”
On the finding of the learned trial Judge the plaintiffs are entitled to adecree in their favour with costs. As the view I have taken is that section3 of the Prescription Ordinance applies to the right of Way claimed it isnot necessary to discuss the citations of learned counsel. Under ourlaw servitudes which were not known in the times of the Roman-Dutchlaw writers can be granted or acquired. The Roman-Dutch law is not a
1 Ramanathan 1860-1862, p. 75.
a (1912) 15 -ZV. L. R. 257.
BASN"A"Y"AKE3, C.J.—Abraham Silva v. GhandraioimaZa
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static system of law ; but in the words of Lord Tomlin—“ a virile livingsystem of law, ever seeking, as every such system must, to adapt itselfconsistently with its inherent basic principles to deal effectively with theincreasing complexities of modern organised society ”. Pearl AssuranceGo. v. Government of the Union of South Africa x.
It would appear from the following definitions of servitude in Voet andVan Leeuwen that the right of way claimed in the instant case is consistentwith the principles of Roman-Dutch law.
“ Rights established in favour of one person over the property ofanother, by which a property brings to someone other than the owneran advantage which is contrary to the nature of ownership. Some ofthem are personal, when, that is fo say, a property serves a person,others are real, when property serves property or land serves land. ”(Voet Bk VH Tit. 1 s. 1—Gane’s translation, Vol. 2, p. 312).
“A servitude is a right constituted over the property of another,by which the owner is bound, in order that another may draw someadvantage, to suffer something to be done with respect to his property,or himself to abstain from doing something.
“ Servitudes are divided by the expounders into real or praedialservitudes, in which another man’s property is burdened with a servi-tude in favour of somebody, which form the proper subject of this-chapter ; and personal servitudes by which another man’s property isburdened with a servitude in favour of the person of somebody, whichservitude is attached to this person and perishes along with it. Ofwhich class are usufruct, use, and habitation.” (Van Leeuwen, CensuraForensis, Pt I Bk H Ch. XIV s. 1-2—-Foord’s translation).
Besides, Voet himself states that—
“ Other fresh servitudes may be added at the desire of contractingparties to those already enumerated, if only the nature of praedial orpersonal servitudes is discovered in them(Voet Bk Vl.ll Tit. 3 s. 12
—Gane’s translation Vol. 2 p. 475).
Voet discusses in great detail the subject of personal servitudes (BkVII Tit. 1 s. 2) and it is dear that the right claimed in the instant casedoes not fall 'within the scope of the personal servitudes of usufruct, useand dwelling. We have here a case of property serving property andnot a case of property serving a person.
The appeal is dismissed with costs.
SisgTBTATvrBY, J.—I agree.
1 1934 A. G. 670 at 379.