088-NLR-NLR-V-22-APPUHAMY-v.-WALKER-et-al.pdf
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Present: Shaw A.C.J. and De Sampayo JiAPPUHAMY v. WALKER et al.
86-87—D. C. Kurunegala, 7,T39.
Misjoinder of defendants—Cause of action—Action try plaintiff for adeclaration that no road exists over Ms land—Assertion by defend-ants that a cart road existed over plaintiff's land.
Plaintiff sued the two .defendants, who were neighbouring estateowners, alleging that they had unlawfully attempted to open a cartroad through the centre of his land, and claimed a declaration thatno road exists over the land. The defendants filed separate answersdenying that they had unlawfully attempted to open the road, andboth asserting a right in themselves and in the public to use theroad. TSe first defendant also pleaded that he had been improperlyjoined with the second defendant in the action.
Held, that there was no misjoinder. –
“ The two defendants were both asserting before the notion, intheir pleadings and throughout the course of the trial, a right ofway as members of the public to a cart road down the centre of theplaintiff’s land. The’plaintiff was therefore entitled as against botha of them to the same declaration, namely, that there was no publicright of cart road along the track contended for.”
Lowe v. Fernando1 explained.
r j HE facts are set out in the judgment..
A. St. V. Jayawardene, for appellant in 86 and respondent in 87.
de Zoysa, for appellant in 87 and second defendant-respond-ent in 86.
Keuneman, for first defendant-respondent in 86.
September 27,1920. Shaw A.C.J.—
The plaintiff brought this action against the two defendants, whowere neighbouring estate owners, alleging that they had unlawfully. attempted to open a cart road through the centre of his land Aruba-gahagewela, and claimed a declaration that no road exists over the
1920.
1 {1913) ION. L. B. 39S..
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1920. land. The defendants put in separate answers, both denying that8haw"a C.J ^ ^ unlawfully attempted to open the road, and both asserting… a right in themselves and in the public to use the road.
^u^alkerdefendant also pleaded that he had been improperly
joined with the second defendant in the action. The District Judgehas dismissed the action as against the first defendant with costs,on the ground that the cause of action against the two defendantsare not the same. He has held upon the evidence that there wasno permanent road in the position claimed by the defendants untilquite recently, and that until two orthreeyears ago carts foundtheirway across plaintiff’s field when it was not under paddy cultivation,and along the high land on the east when it was. He has, however,held that the second defendant, like the rest of the public, has a rightof way for himself and his carts over the land, but not to anypermanent way in the position claimed by the defendants. He hasaccordingly made a declaration that the second defendant is notentitled to a road as claimed, but has declared him entitled to a cartroad along the eastern boundary of the land, to be constructed byhim at his own expense, and has ordered the costs between theplaintiff and second defendant to be divided. Nothing is said inthe decree about the costs as between these parties, and I under-stand the judgment to mean that each of these parties, as betweenthemselves, shall bear their own costs. The plaintiff appealsagainst the order dismissing his action against the first plaintiffwith costs, and against the order dividing the costs as between himand the second defendant. The second defendant also appealsagainst the order declaring him not entitled to a road along the lineclaimed by him.
In view of the findings of the Judge on the evidence there maybe some doubt whether there should have been a decree for a per-manent road even along the eastern boundary of the land, but theplaintiff has not appealed from that part of the order. The Judgewas probably influenced to make this order by the expression of theplaintiff’s willingness, made at the commencement of the trial, toallow a cart road in such a position.
With regard to the Judge’s order as to misjoinder of defendants,I think the plaintiff’s appeal should be allowed. On the face of theplaint there was certainly.no misjoinder, as the plaintiff alleged thatthe road had been jointly made by the two defendants, the evidence,however, failed to connect the first defendant with the making ofthe road by the second defendant, and, therefore, did not show thathe was acting in concert with the second defendant* The twodefendants, however, were both asserting before the action, intheir pleadings, and throughout the course of the trial a right ofway as members of the public to a cart road down the centre of theplaintiff’s land along the course of the road recently made up by thesecond defendant. The plaintiff was, therefore, entitled as against
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both of them to the same declaration, namely, that there was nopublic right of oart road along the track contended for.
The two defendants are asserting the same right to the same roadunder the same title. The cause of aotion with regard to thedeclaration was, therefore, in my opinion, the same. The FullCourt case of Lowe v. Fernando1 was a case of a very different nature.In that case a number of defendants were claiming under differenttitles different portions of a land claimed to be the property of theplaintiff. It was held by the majority of the Court that, underthese circumstances, the cause of action against the various defend-ants was not the same, and, therefore, there had been a misjoinderof defendants. The Court did not hold, and I think would not haveheld, that, had the defendants beeif claiming the whole of the landunder the same title, there would have been any objection to makingthem defendants together. This view appears to have been borneout by expressions used in the judgments of the Judges constitutingthe majority of the Court. Wood Benton C.J. says at page 400 :“ Each group of defendants disputes the plaintiff’s title only inregard to the lot of which it is itself in possession. His cause ofaction against each is denial of his title to that lot and to that lotalone. He has, therefore, a different cause of action as against eachgroup.” Pereira J. at page 402 says: “ I think that the propercourse will be to dismiss the plaintiffs claim, reserving to him theright to proceed against each defendant or each group of defendantsclaiming a separate portion of the land by a separate action.”
These expressions seem to me to clearly show the opinion of themajority of the Court that if several people claim the same thingunder the same title they can be jointly sued. This also was heldto be the law in India under the provisions of the old Indian CivilProcedure Code in Sudhendu Mohan Boy v. Durga Dasi? Withregard to the second defendant’s appeal, I see no reason to differfrom the Judge’s finding. There was abundant evidence on whichhe might properly hold, as he has, that no public cart way existsalong the line contended for by the defendants.
With regard to the plaintiff’s appeal'as to the costs, I think he isentitled to them as against both defendants. The real dispute in theaction was as to the existence of a public cart way through thecentre of the plaintiffs land as claimed by the defendants. Theplaintiff has got a declaration negativing this, and all the defendantshave obtained is a declaration for a cart way in a position they neverasked for, and which they were offered by the plaintiff at the com-mencement of the trial, and which they then refused and still saythey do not want.
I would vary the judgment and decree appealed from, and declarethat the defendants are not entitled to a road over the land in theposition claimed by them and as depicted in the plan filed in the
1 (1913) 16 N. L. R. 398.1I. L. R. 14 Cal. 435.
1920.
Shaw A.C. J.
Appuhamyv. Walker
1920.
Shaw A.C. J.
Walker
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case, and further declare that they are entitled to a cart road alongthe eastern boundary of the land, and that they should be at libotfyto construct such road at their own expense.
The plaintiff is, in my opinion, entitled to costs against bothdefendants of both the action and the two appeals.
Db Sampayo J.—I agree.
Varied.