Ariyaratnam. v. Stibramaniam
1978 Present : Samarakoon, C.J., Thamotheram, J., and
CKELLAPPAH ARIYARATNAM and ANOTHER, Plaintiffs-
CHELLIAH SUBRAMANIAM and FOUR OTHERS, Defendants-
S. C. 197/71 (F)—D. C. Jaffna, No. L. 2827
Servitude–Action for declaration—Pled cff abandonment and non-vser-—Ingredients to be established by the party who takes sucha plea—Mere inaction by owner of dominant servitude insuffi-cient— Non-user for third of a century.
The plaintifTs-appellants instituted an action, for a declarationthat they were entitled to certain servitudes. The defendants-respon-dents contended that since 1942 when the plaintiffs’ predecessor intitle who was also the owner of the adiacent land had bought thisland he abandoned his rights in the land in suit as these rightswere also available in the adjacent land. The learned District Judgewhi'e holding that the anpellants were entitled to the said servitudeson the title they pleaded, dismissed the action on the basis that theplainlifTs-appeliants and then- predecessor in title had since 1942tacitly abandoned the exercise of these rights or had lost them bynon-user.
Held: (1) That the learned District Judge had erred when hecame to the conclusion that these rights were lost bv the plaintifTs-appellants and their immediate predecessor in title bv reason ofwaiver. This was not a case of express waiver nor did the conductof the respondents during the re’evant time show that theythemselves had inferred a waiver or surrender of those rights onthe part of the appellants.
(2) That the ground of non-user relied on bv the respondentsdid not arise as the period under the Roman Dutch Law was athird of mo years and even assuming that such law is applicablehere, and that non-user was a valid ground, such period had notelapsed by the time the plaintifTs-appellants filed this action.
Cases referred to :
Senathirajah v. Marimuttu, 53 N.L.R. 5.
Nagamani v. Vinayagamoorthy, 24 N.L.R. 438.
Fernando v. Mendis, 14 N.L.R. 101.
Rajentheram v. Sivarajah, 66 N.L.R. 324.
Margate Estates Ltd. v. XJrtel (Pty.) Ltd., (1965) 1 S.A.L.R. 278.King v. Finegan & another, (1953) 3 S.A.L.R. 412.
Braun v. Powrie, (1903) 20 S.C. 476.
Edmeades v. Scheepers, (1880) 2 S.C. 334.
PPEAL from a judgment of the District Court, Jaffna.
Ranganathan. Q.C.. with C. Chellapah and J. Hasheern, forthe plaintiff s-appellants.
P. Sornciulakam, with S. Ruthira Moorthy. for the defendants-respondents.
1 • — A 17 U1 (SO/OD
WANASTJNDERA, J.—Ariyaratnam v. Subramaniam
March 3, 1978. Wanasundera, J.
In this action, the 2nd plaintiff-appellant, (her husband isjoined as the 1st plaintiff), as owner of lot 1 depicted in PlanNo. 3379 marked “ X ”, has asked for a declaration that she isentitled to the use of the 9 ft. wide pathway shown as lot “ A ”in the said plan and for her share of the water in the well, way.and water-course situated on the adjacent land to the west, andbelonging to the 2nd and 3rd respondents. These features arealso indicated in the plan.
Prior to 1905, the lands of the plaintiffs and the defendantsconstituted one single entity of an extent of 15 3/8 1ms. and wasowned in common by three brothers : Shanmugam Ponnambalam,Shanmugam Arumugam, and Shanmugam Vaithilingam. In 1905.by deed PI, the land was amicably partitioned by the brothersinto three equal lots of 5 1ms. 2-1/4 kls. each. The plaintiffs’predecessor-in-title, Shanmugam Vaithilingam, was allotted lot1, which is the one on the east. The middle lot where the wellis situated, now owned by the 2nd and 3rd defendants, was givento Shanmugam Arumugam ; (the 1st defendant is the husbandof the 2nd defendant). The third lot on the west was given toShanmugam Ponnambalam and it has now devolved on the 5thdefendant; (the 4th defendant is her husband).
In PI, the plaintiffs’ allotment is described as follows : —
“ The said extent of 15-3/8 Lms- V.C. Of this, l/3rd shareon the east in extent 5 Lms. V.C. and 2-1/4 kls.. with thepalmyrahs contained herein, and cultivated plantations,bounded on the east by land Puddani belonging to SupparSinnathamby, on the north by land Puddani belonging toKanapathy Aiyar Muttaivar, on the west by the frontage ofthe path-way-ground set apart by us newly at present outof the said entire land of 15-3/8 Lms. V.C. to have accessto and from the lands (lots) divided and allotted herein-below and by the land Puththani allotted hereinbelow tothe 2nd named person the said Shanmugam Arumugam,and on the south by the land Puththani belonging toSinnathangam wife of Sangarapillai. The whole of the land,contained within these boundaries and all those contained■ therein and the share of water appurtenant hereto out of thewell lying in the land on the west allotted to the 2nd namedperson the said Sanmugam Arumugam and the right of useof the watercourse and way and the right of the said pathshall belong to the 1st named person the said Sanmugam
‘VVAJCAS'CEI.ER.A, J.—Aitjaralnam r. Subramaniam
Vaithilingam. Valued at Rs. 200.”
In the description of the other two lots dealt with in the deed,there is a similar reference to the well and the pathway. It wouldbe observed that in all the three descriptions the path falls out-side the limits of the three specific allotments, and it is to beheld by the three persons in common for their use as a pathway.
It was the position of the defendants that, although deed PIhad made provision for the rights claimed by the plaintiffs, suchrights had not been demarcated on the ground, nor were thoserights exercised by the parties or their successors-in-title.
After trial, the learned District Judge dismissed the plaintiffs’action with costs. While holding that the plaintiffs were entitledto the said path and the share of the water in the well, on thebasis of the title pleaded in the plaint, he however came to thefinding that the plaintiffs-appellants and their predecessors-in-litle, since 1942, had tacitly abandoned the exercise of theserights or had lost them by non-user. The learned trial Judgehas dealt with the matter on the basis that all these were servi-tudes. The authorities that have been cited both before him andbefore us also relate to servitudes.
Mr. Ranganathan for the appellants challenged this findingboth on the facts and on the law. The sole point that is beforeus is whether on the facts placed before/the court, the learnedtrial Judge had come to a correct finding on this issue.
The learned trial Judge was of the view that these rights hadbeen exercised by the respective owners from 1905 till 1942. In1942, the 2nd plaintiff’s father, from whom the 2nd plaintiffobtained title on a dowry deed, had bought this land. At thattime the 2nd plaintiff’s father already owned and possessed theland immediately to the north of this land and adjacent to it.This northern land had access to the main road on the North. Italso had a well. These amenities had been used by the plaintiff’sfather for a considerable time before he bought Lot 1 in Plan“ X ”. Although the 2nd plaintiff’s father had, in terms of thispurchase, the rights and servitudes now claimed from the adjoin-ing land, he continued to use his former access to the north andthe well in the northern land.
Upon a careful consideration of the evidence, the learnedDistrict Judge was not prepared to accept the evidence of the2nd plaintiff’s father that this path had been used by him or bythe plaintiffs in recent times. His finding is that it had neverbeen used since its purchase by this witness in 1942.
WAN ASUNDER A, J.—AriyarcUnam v. Subramanian
The learned trial Judge has found that the 2nd and 3rd defen-dants, who had a cigar manufacturing plant on their premises,had, since 1944, been in the habit of leaving the waste tobaccoveins towards the south-east corner of their land and on andabout the path. The Grama Sevaka who visited the land in 1964saw ashes at certain points on Lot “ A ”, which indicated thatthe 2nd and 3rd defendants were in the habit of burning suchtobacco waste on the path. In 1964, the 2nd and 3rd defendantsattempted to plant a coconut plant. There was an immediateresponse from the plaintiffs, who made a complaint about thisto the Grama Sevaka. The 2nd and 3rd defendants have alsoclaimed that in 1964 they had cut a coconut tree and and apalmyrah tree which were growing on Lot “ A ”. The presentaction was filed in 1966.
Having regard to the nature of these acts and their isolatedinstances, I am inclined to the view that this evidence would beinsufficient to establish adverse possession of Lot “ A ” by the2nd and 3rd defendants. In so far as the path is concerned, thedefendants themselves have been using this pathway for entryinto and egress from their lands at all times material to thisaction. Since this portion of the land is owned in common andthey would be in the position of co-owners, this cannot giverise to any adverse possession or prescriptive possession on theirpart, Rajentheram v. Sivarajah, 66 N.L.R. 324.
One item of evidence that was stressed by counsel for therespondents was the action by the plaintiffs and their immediatepredecessor-in-title in fencing with barbed-wire the whole oftheir western boundary, which had. the effect of closing theentrance to the path from their land. Mr. Ranganathan submittedthat this act was, at the most, equivocal and does not show aclear intention on the part of the plaintiffs and their predecessor-in-title to abandon their rights, or an intention not to u^e them.He submitted that during this period the plaintiffs and theirpredecessor-in-title had no occasion to exercise their rights sincethey were making use of the amenities provided by the adjacentland to the north. In this state of affairs, the plaintiffs-appellantsand their predecessors took the precaution of closing the entranceinto their land in oyler to protect it. The fact that these twolands had not been amalgamated and the plan shows a livefence over 20 years old between the two lands, shows that Lot 1continued to exist in its own right. This fact is also of someassistance to the plaintiffs-appehants. Mr. Ranganathan alsorelied on the finding of the learned District Judge that the deedsrelied on by the plaintiffs-appellants, including P4 which referredto the servitudes and was executed as late as 1957, constituted
WANASUNIjERA, J.—Ariynratnaui r. Subramaniarn
a sufficient devolution of title in respect of these lands includingthe servitudes, and the plaintiffs-appellants were legally entitledto them by virtue of this chain of title. There is also an additionalfactor that in P6, which is the the deed executed by the 5thdefendant in 1970, a reference to the path continues to persistThese circumstances tend to negative that a waiver of theserights had taken place either expressly or by implication.
Two of the modes by which the right of servitude could belost in the Roman-Dutch law are: (1) Relaxation, Release orWaiver, and (2) Non-user (Voet, 8.6.5 ; Grotius, 2.37.3 & 4 ; VanLeeuwen’s Commentary of the Roman-Dutch Law, 2.22.3;Censura Forensis, 1.2.1445 ; Walter Pereira’s Laws of Ceylon(2nd Edn.) 501 ; and Lee’s Introduction to Roman-Dutch Law(5th Edn.) 175).
The onus of establishing such waiver or abandonment isclearly on the respondents and an intention to waive a legalright would not be lightly presumed by the court. They mustshow that the plaintiffs-appellants and their predecessor-in-titlehad, with full knowledge of their rights, decided to abandonthem, whether expressly or by conduct plainly inconsistent withan intention to enforce them. This is '’not a case of an expresswaiver.
The Roman-Dutch law authorities cited by counsel seems tocontemplate three situations in regard to implied waiver orabandonment. First, when two servitudes have, been owed atthe same time, one of which is principal and the other accessory,and* if the principal one is relaxed, the accessory is also deemedto have been relaxed. Secondly, the servitude could be lost bythe dominant owner granting to the servient owner some rightwhich is inconsistent with the rights conferred by the servitudeand which is obstructive of it. Thirdly, a waiver could also beinferred where the owner of the servient tenant, without permis-sion, whether express and implied, does some act in defianceof the rights of the dominant tenant. Voet and Van Leeuwen.appear to suggest that if the dominant owner stands by andallows the owner of the servient tenant to do some work or putup a building or obstruction, the dominant owner would notbe allowed to enforce his rights by compelling the removal ofthe obstruction, but will have to be content with the recoveryof damages. Edmeades v. Scheepers, (1880) 2 S.C. 334 ; Braun v.Powrie, (1903) 20 S. C. 476 ; King v. Finegan and Another, (1953)
S. A. L. R. 412 ; Margate Estates Ltd. vs. TJrtel (Pty.) Ltd.,1965 (1) S.A.L.R. 273 ; Fernando v. Mendis, 14 N.L.R. 101 ; andNagamani v. Vinayagamoorthy, 24 N.L.R. 438.
• *1 —
Salliir o. Najcarc
■ The defendants-respondents have virtually relied on the mereinaction on the part of the appellants in proof of their case.Tt is not their case that there was a communication of any express':intention by the plaintiffs-appellants to the effect that theywere waiving their rights. The conduct of the respondents duringthe relevant time does not show that they have been exercisingor asserting any significant rights on their own, consequent on.any conduct on the part of the appellants from which they have.Inferred a waiver or surrender of those rights.
The other ground relied on was one of non-user. In the Roman-Dutch law, the period required was a third of a hundred years(Voet, 8.6.7 ; Van Leeuwen, 2.28.4 ; Grotius, 2.37.7.). Mr. Ranga-•aathan submitted that this ground no longer obtains in thiscountry having regard to the provisions of the Prescription-Ordinance, which provides the only means of divesting title In•these circumstances. There is a passing reference to this ground,however, by Nagalingam, J. in Senathirajah v. Marimuttu, 53^NX.R. 5. It is unnecessary for me to decide the point in this■'Case for even assuming that the Roman-Dutch law is 'applicable•ifco this case, the period of non-user required by that law hadifliot elapsed by the time the plaintiffs-appellants filed this action.
In all the circumstances of this case, I am of the view that*Ehe learned trial Judge erred when he came to the conclusion'■•that these rights -were lost by the plaintiffs-appellants and theirimmediate ;predecessor-in-title by reason of waiver or non-user.
'would therefore set aside the judgment of the learned District:3JPadge and renter judgment for the plaintiffs as prayed for with'ifeosts both -of appeal and of the lower court."
-^amarakoon, C. J.—I agree.
IFhamotheram, J.—I agree.