COURT OF APPEALJAYASUR1YA. J.
CA. No. 661/96 (F)
D. C. EMB1L1P1TIYA No. 3471 / L
19th MARCH. 1998
29th MAY. 1998
10th SEPTEMBER. 1998
05th NOVEMBER. 1998
15th MARCH. 1999
Praedial servitude – Personal servitude – Nature and character – Right ofway by Prescriptive user and by way of necessity – Dominant tenementand servient tenement – Merger – Roman Dutch Law ■ Civil Procedure CodeS 41 • Servient tenement not described with certainity and precision ■ Is itfatal?
The PlalntifTRespondent claimed a servitude of right of way by prescriptiveuser and alternatively a servitude of a way of necessity. It was concededthat the dominant tenement and servient tenement lands are owned bythe Mahaweli Authority.
The court after holding that the dominant tenement and the servienttenement are lands owned by the State, granted the reliefs prayed for bythe Plaintiff Respondent.
A praedial servitude is one which accrues to an individual merelybecause he is the owner of the praedium dominans. He could claimand exercise it only in his capacity as the owner of the dominanttenement. A personal servitude is one which vests in an individualas such and not by reason of the fact that he is the owner of atenement.
David v. Gnanawathle
For the exercise of a praedial servitude there ought to be a dominanttenement owned by one individual and a servient tenement ownedby another individual.
The Mahaweli Authority is the owner of both tenements. Thereforethe Plaintiff Respondent not being the owner of the dominanttenement cannot legally claim or exercise this servitude of right ofway: Further, the Plaintiff cannot assert that she is claiming aservitude for the Mahaweli Authority. The Defendant too cannot,as he is not the owner of the tenement, legally grant or create thisparticular servitude.
Merger (confusio) of the dominant and servient tenement in oneownership terminates and extinguishes the servitude.
A way of necessity could only be generally claimed when there is noother alternative route available.
A person is not entitled to claim the best and nearest outlet onthe ground of necessity, if he has another but a less convenientroute.
When the Plaintiff claimed that he has exercised by prescriptiveuser a right of way over a defined route, the obligation of thePlaintiff to comply with S.41, Civil Procedure Code is paramountand imperative. Strict compliance with S.41 Civil Procedure Codeis necessary as the Fiscal would be impeded in the execution of thedecree/Judgment if the servient tenement is not described withprecision and definiteness.
Appeal from the Judgment of the District Court of Embilipitiya.
Cases referred to :
G. L. A. Perera us. Municipal Council ojNegombo – 75 CLW 28.
John Singho us. Pedrls Appuhamy – 48 NLR 345.
Louw us. De Villers – 10 SC 324 at 325.
Exparte Geldenhuys – 1926 OPD 155.
Baehwlsch us. Estate Odendaal – 1909 18 SC 152.
Vander Vlugt us. Saluatlon Army Property Co – 1932 CPD 56.
Dreyer us. Letterstedts Trustees and Executors – 5 – S – 99.
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Du toll vs. Visser and Another – 1950 2 SALR 93 (C).
Groot – Chwalng Saltworks Ltd., us. VonTonder – 1920 AD 492.
Myers vs. Van Heerden and Another – 1996 2 SALR 649.
Salmon us. Lambs Executors – 1906 20 EDC 351.
Veluplllal vs. Subaslnghe – 58 NLR 385.
City Deep vs. Ma Calagan – 1924 WLD 276.
Jansen and Thorn vs. Ysel – 1 SALR 6.
Wilhelm vs. Norton – 1935 – EDL 143 at 152. 169.
Illing vs. Woodhouse – 1923 Natal Law Reports 168.
Ellmann us. Werth – 16 SC 173.
Gray vs. Gray – 28 Natal Law Reports 154.
Van Schalk vs. Du Plessls – 17 SC 454.
Lentsz vs. Mullln – 1921 EDL 268.
Matthews vs. Road Board for the District of Richmond and others- 1967 3 SALR 244.
Mohottl Appu vs. Wtjewardena – 60 NLR 46 at 47.
Abdulla vs. Junaid – 44 CLW 84.
Ms. Anandl Cooray for Defendant AppellantP. D. Wimalanaga for Plaintiff Respondent
Cur. adv. vult.
February 02, 2000.
JAYASURIYA, J.The adjudicating process upon this appeal has spotlightedthe nature and character of a praedial servitude in that it iscreated for the benefit of the Praedium Dominans (dominanttenement) to be claimed and exercised by an individual in hiscapacity of being the owner of the dominant tenement and thisappeal manifests the marked distinction between a praedialservitude and a personal servitude.
David v. Gnanawathie
The plaintiff in her plaint claimed from the defendant aservitude of right of way by prescriptive user (vide paragraphs2 and 6 of the plaint) and alternatively a servitude of a way ofnecessity (vide paragraphs 4 and 5 of the plaint). In theschedule to her plaint she has described with reference tometes and bounds the dominant tenement (lot 23 which isalleged to be owned by her). But there is no description of theservient tenement with reference to metes, and bounds or areference to a sketch or plan depicting the servient tenement.In fact having described the dominant tenement in the schedule,there is only a description of the servient tenement (lot 22) inthe following terms: “To gain access to the dominant tenementfrom the main Hambantota Ratnapura Road, a right of waywhich runs to the north of the dominant tenement 125 feet inlength and 4 feet in breath which has been lotted as lot No. 22."In her prayer to her plaint she has specifically claimed adeclaration for a right of way as described in the schedule toher plaint and she has prayed for an order on the defendantrestraining and prohibiting the defendant from impeding andhindering her in the use of the said right of way.
The defendant in his answer inter alia pleaded thatthe plaintiff never exercised a servitude of right of way overthe defendant’s land, that the plaintiff had no legal right toclaim and assert a right of way as prayed for in her plaint andthat the plaint disclosed no cause of action against thedefendant.
The case proceeded to trial on issues which were numberedone to twenty. Vide pages 67 to 74. The relevant issues for theconsideration of this appeal are issues one, two, three, six,seven, eight, ten, fifteen and nineteen. In issues one and threethe plaintiff has raised the question whether the plaintiffby using the aforesaid right of way from the year 1960uninterruptedly, without any hindrance or impediment,adversely and independently for over ten years, has acquireda right of way by prescription.
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In issue two. the plaintiff has raised the question whethershe is entitled to a way of necessity over the servient tenement.In issue seven the defendant has raised the question whetherthe plaintiff could have and maintain the presently constitutedaction, as she has failed to describe the servient tenement byreference to metes and bounds or with reference to sketch orplan as required by section 41 of the Civil Procedure Code. Inissue eight, the defendant has raised the question whether theplaintiff is legally entitled to claim a way of necessity over theservient tenement. In issue ten. the plaintiff has raised thequestion whether the defendant is the owner of the servienttenement either by reason of the execution of the transfer deedNo. 606 dated 1.5.1978 attested by Buddadasa VitanageNotary Public (marked D11) or by reason of prescriptive right.In issue fifteen, the plaintiff has raised the consequential issuewhether the aforesaid transfer deed (marked Dll) has beenexecuted in contravention of the provisions of the LandDevelopment Ordinance and in respect of a land which isowned by the State. The defendant has framed issue nineteenas a consequential issue raising the question, if the servienttenement and the dominant tenement are lands owned bythe State is the plaintiff entitled to have and maintain thepresently constituted action claiming a servitude of a right ofway by prescription or a way of necessity?
The plaintiff in her plaint alleged that she was the ownerof lot No. 23 which is fully described in the schedule to theplaint and she claimed a servitude of a right of way over lot 22,which is imperfectly described in the schedule to her plaint togain ingress from the aforesaid main road to lot No. 23 and togain eggress from lot 23 to the aforesaid main road.
During the course of the trial it was agreed and concededby both parties that the dominant tenement (lot 23) and theservient tenement (lot 22) were both lands owned by the Stateand lands which had been vested in the Mahaweli Authority;Vide sections 24 and 25 of the Mahaweli Authority Act. In
David v. Gnanawathle
terms of the Mahaweli Authority Act certain statutes arespecifically referred to in schedule B to the Act and the tenthstatute which is referred to is the Land Development Ordinance.The evidence recorded at the trial discloses that both theplaintiff and the defendant were unauthorised and unlawfulencroachers of lands which were vested in the MahaweliAuthority. No grants or permits had been issued under theprovisions of the Mahaweli Authority Act or under the provisionsof the Land Development Ordinance to render legal theirunauthorised occupation of lands which were vested in theState.
Although a photocopy of a plan (F. V. P. 779) without strictformal proof was marked in evidence as PI (being a photocopyof the F. V. P. 779) which depicted the relevant allotments, yetthe evidence of the official witness called on behalf of theplaintiff was to the effect that before the Mahaweli Authoritydecided to issue any grants or permits to encroachers of Stateland certain vital steps in procedure had to be taken. TheAuthority had to decide whether the encroached land wasrequired for purposes of the State. If it was not so required,then plans have to be prepared depicting the encroachments,boundary stones have to be affixed to the soil and thereafterthe plans prepared by the survey officers had to be approvedby Surveyor General, before the issue of grants or permits toencroachers could be contemplated. It is in evidence that noneof these steps had been taken and the division recorded in thesketch plan PI was not final at all. Thus it is manifest that boththe plaintiff and the defendant had no investitive right tooccupy their relevant lands and neither did they have astatutory right under the provisions of the Mahaweli AuthorityAct and the Land Development Ordinance although it was soincorrectly contended at the argument of this appeal.
Learned counsel for the respondent relied on a nebulousstatutory right conferred on the plaintiff by the MahaweliAuthority which had no existence in law. Learned counsel for
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the respondent relied heavily on the judgment in G. L. A. Pereravs. Municipal Council of Negombo1'1 particularly at page 30.But this decision is certainly not helpful to support the allegedstatutory right relied upon by counsel. In that decision.Justice Siva Supramaniam, was dealing with an entirelydifferent set of circumstances and His Lordship proceeded tostate that where an obligation does not arise under thecommon law but it is created by statute that one must look tothe statute to see if there is a specific remedy contained in itfor breach of that obligation and if a specific remedy has beenprovided, no other remedy is available at law. The ratiodecidendi of that judgment has no application to the presentappeal as no right and obligation has ever been created bystatute as contended, for the plaintiff and the defendant tolawfully occupy State land. Equally no issue relating to whatprecise recourse to a remedy arises upon this appeal.
This issue relating to a statutory right raised for the firsttime upon this appeal by learned counsel for the respondent,ought not to be considered by this Court at all. There has beenno issue framed in regard to the vesting of a statutory right ascontended for in the issues which have been raised before thetrial Judge. It is trite law that a Court cannot in the course ofits judgment in appeal decide on matters not covered andcaught up by the issues. No such issue has even been framedat the trial and no responsible counsel could prefer submissionsin appeal on matters outside the area covered by the issuesdealt with by the trial Judge. These principles were laid downby Justice Wijewardena when he was delivering the judgmentin a partition case, but the principles laid down by him areequally applicable to all other civil actions. Vide John Singhovs. Pedris Appuhamy121.
A consideration of the principles of the Roman Dutch Laware necessitated having regard to the issues arising upon thisappeal. Praedial servitudes are constituted in law in favour ofa particular praedium dominans (dominant tenement) andcan only pass with the dominant tenement. An individual who
David v. Gnanawathle
is the owner of the dominant tenement In his capacity as theowner of the praedlum domlnans claims and exercises theservitude over the servient tenement. The owner of the dominanttenement cannot lawfully purport to transfer the dominanttenement to someone else and purport to exercise the servitudefor himself or lend the use of the servitude to third parties apartfrom the land Domat 184.108.40.206.14; Voet B. 1.1; Louw vs. DeVillers'3' at 328. Praedial servitudes are part and parcel of thedominant land and they themselves are immovable – VanLeeuwen Roman Dutch Law 2.19.2 It is relevant to distinguishbetween personal and praedial servitudes in relation to thelegal issue arising upon this appeal. A praedial servitude is onewhich accrues to an individual merely because he is the ownerof the praedium domlnans. He could claim and exercise it onlyin his capacity as the owner of the dominant tenement.However, a personal servitude is one which vests in anindividual as such and not by reason of the fact that he is theowner of a tenement, (praedlum dominans) Vide the opinion ofGrotius 59 page 420; Van Leeuwen Roman Dutch Law 2.22.6;Ex parte Geldenhuys*41.
For the constitution and the exercise of a praedial servitudethere ought to be a dominant tenement owned by one individualand a servient tenement which is owned by another individual- Voet 8.4.19; Huber 2.43.17; Baehwischvs. EstateOdendaal15'1909. Do SC 152; Vander Vlugt vs. Salvation Army PropertyCo.,161. The owner of the dominant tenement (lot 23) and of theservient tenement (lot 22) in this action is the MahaweliAuthority. Thus the Mahaweli Authority cannot in law claimand exercise this particular servitude of right of way claimedin the plaint. For the trite principle of law is that no one couldhave a servitude over his own land – Nulli Res Sua Sevit-Dreyervs. Letterstedt’s Trustees and Executors171. The Roman DutchLaw principle being that merger (confusio) of the Dominantand Servient tenement in one ownership teminates andextinguishes the servitude – Du Toit vs. Visser and another*8'Groot-Chwaing Salt Works Ltd., vs. Von Tonder191 Myers vs. VanHeerden and another*101. For an analyatical examination of this
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rule – vide Justice Kotze's judgment in Salmon vs. LambsExecutors1111 Thus the Mahaweli Authority who admittedly isthe owner of both the dominant and servient tenement cannotclaim or exercise the servitude or right of way as prayed for inthe plaint. The plaintiff not being the owner of the dominanttenement cannot legally claim or exercise this servitudeof right of way. Likewise the plaintiff cannot assert thatshe is claiming a servitude for the Mahaweli Authority. Thedefendant who is not the owner of the servient tenementcannot legally grant or create this particular servitude. Thusthe answers to issue eight and nineteen have necessarily tobe in the negative. The learned trial Judge has wronglyanswered issue eight in the affirmative, but correctly answeredissue nineteen in the negative. Although he has correctlyanswered issue nineteen in the negative he has wronglyentered judgment in favour of the plaintiff in terms of prayerone and two of the plaint. If the answer to issue nineteen is inthe negative, the learned District Judge ought to have refusedthe claims in prayer one and two of the plaint.
The issue which arises upon this appeal also arose forconsideration before the Supreme Court in Velupillal vs.Subasinghe1121. Learned counsel for the defendant-appellantrelied upon this decision in support of her contentions beforeus. Chief Justice Basnayake delivering the judgment inVelupillai's case succintly remarked thus:
“The servitude claimed in the instant case is a real orpraedial servitude. Such a servitude cannot exist without adominant tenement to which rights are owed and a servienttenement which owes them. A servitude cannot be granted byany other than the owner of the servient tenement, nor acquiredby any other than by him who oums the adjacent tenement -the dominant tenement. Here the plaintiff who is the lesseeand not the owner of the land claims a servitude from thedefendant who is not the owner but a lessee of the land.However the owners of both tenements are one and the samegroup of persons. A praedial servitude is a right for all times
David v. Gnanawathie
attaching to the dominant tenement and cannot be acquiredexcept for the benefit of the lessor by the lessee whose rights
are limited by the terms of the leaseIt is sufficient to
refer to the case of City Deep vs. Ma Calagan1'31 where the veryquestion arose for decision and it was held that a lessee inLongum Tempus cannot acquire a praediai servitude byprescription over the property of the lessor. That case refers tothe decision of Jansen & Thorn vs. Yese<,4,An which Kotze, Jheld that a lessee cannot acquire a real servitude for himself.The person entitled to a way of necessity is only the person whois the owner of the dominant land – Voet 8.3.4".
Thus the South African Courts have held that even alessee in Longum Tempus, who certainly has a right in rem andan interest in the land, cannot claim and acquire a servitudeas he is not the owner of the dominant tenement. Even if wehold that the plaintiff is entitled to a statutory right in respectof lot 23, he cannot legally acquire and purport to exercise aservitude of a right of way as he is not the owner of thedominant tenement.
The learned District Judge's judgment contains a seriesof misdirections, inconsistencies and discrepancies. Havingregard to issues one, three and six and paragraphs two and sixof the plaint it is crystal clear that the plaintiff is seeking adeclaration of a servitude of a right of way by prescription.However the Judge at page 111 incorrectly states and arrivesat the finding.
Again at page 271 of his judgment the learned Judgestates as follows:
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Further the learned trial Judge has answered issues one,three and six in the affirmative to the effect that the plaintiff isentitled to claim by prescription a right of way as prayed for inthe plaint. In his judgment at page 275 he has answered issuesone and three in the affirmative and in favour of the plaintiff.
At the trial a claim to a way of necessity was also pressed.The defendant in refutation of that claim pleaded that theplaintiff had an alternative route. However the learned trialJudge very irresponsibly held that the issue of an alternativeroute does not arise for consideration and is not relevant.Though he has reached this finding he has answered issuestwo and eight which relate to the claim of a way of necessityin favour of the plaintiff. Thus there is manifest inconsistencyin his finding that the existence of an alternative route isirrelevant in view of his answer to issues two and eight. At page264 of his judgment, the learned Judge holds as follows:
Again at page 265 in his judgment the learned trial Judgeerroneously holds thus:
The learned trial Judge has misdirected himself on thecompeting claims and pleas put forward by the respectiveparties before him and arrived at these two wrong findings and
Likewise at page 259 of the Judgment the learned Judgestates as follows:
David u. Gnanawathie
failed and omitted to examine and evaluate the evidence led bythe defendant in support of the existence of an alternativeroute. In fact the plaintiff under cross examination when shewas confronted with the photocopy of the plain FVP bearingNo. 779 (which was marked in evidence as P1) admitted thatthere is a strip of vacant land along Shashikala Gems to get toher father’s land which was lotted in the plan as lot 33/9. Shealso accepted the firm fact that one boundary to her land (lotNo. 23) is her father’s land; Vide pages 128 and 129 of therecord. In the circumstances the learned trial Judge was dutybound, in view of the fact that issues two and eight were raised,to give his anxious consideration to this plea and the evidenceled in support of an alternative route available to the plaintiff.
A way of necessity could only be generally claimed whenthere is no other alternative route available to a plaintiff. Forthe history of the origin of the right of way of necessity – see thedecision in Wilhelm vs. Norton1'5’ at 152 Voet 8.3.4 ViaNecessitatis is a right of way granted in favour of property overan adjoining one, constituting the only means of ingress to andegress from the former property. Thus if there is an alternativereasonable and sufficient route, the claim fails. On this issuethe criterion is necessity and not convenience but it is notnecessary to establish absolute necessity. Vide tiling vs.Woodhouse"61 at 168. A person is entitled to a reasonable andsufficient means of access to a public road from his property.Hence he is not entitled to claim the best and nearest outlet onthe ground of necessity, if he has another but a less convenientroute. Ellmannvs. Werth"7> at 173; Gray vs. Gray"81 Van Schalkvs. Du Pies sis"91 Wilhem vs. Norton (Supra) at 169.
If a person claiming a way of necessity “has an alternativeroute to the one claimed, although such route may be lessconvenient and involve a longer and a more arduous journey,so long as the existing road gives him reasonable access to apublic road, he must be content and cannot insist upon a moredirect road over his neighbour’s property" – Lentz vs. Mullin'201.Also see Matthews vs. Road Board for the District ojRichmond
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& Others1211. Justice Weerasuriya in Mohoti Appu vs.Wijewardena1221 at 47 quoted extensively from the decision inLentz’s case and held that a person can claim a way ofnecessity for the purpose of going from one land owned by himto another but remarked that the right of way will not begranted if there is an alternative route to the one claimed,although such a route may be less convenient and involve alonger and a more hazardous journey.
The learned trial Judge has completely failed to givehis consideration and attention to the aforesaid principlesrelating to a way of necessity and to the plea of alternative routeand he has completely failed to consider and evaluate thevaluable material and evidence placed before him byboth parties. Besides having misdirected himself he haserroneously held that the issue of the availability of analternative route does not arise for consideration upon the trialheld before him.
The learned trial Judge’s answer to issue fifteen is in theaffirmative. If so, the plaintiff is not entitled to have andmaintain the presently constituted action but inconsistentlythe learned trial Judge has granted the plaintiff the reliefsprayed for by the plaintiff in prayer one and three of her plaint.Likewise, the learned trial Judge has answered issue nineteenin the negative and in favour of the defendant. But inconsistentlyand erroneously he has entered judgment for the plaintiff asprayed for in terms of prayer one and three of the plaint.
Issue seven has been raised at the trial agitating thequestion whether the plaintiff is entitled to have and maintainthe present action in its constituted state' h§ the plaintiff hasfailed to describe with certainty and precision the servienttenement over which the servitude of right of way is soughtto be claimed by prescription. The point was pressed at thetrial that there was a failure to comply with the provisions ofSection 41 of the Civil Procedure Code in that though theplaintiff made a claim in this action for some interest (a rightin rem) in a specific portion of land that she had failed to
David v. Gnarunwathie
describe in the plaint, so far as possible, the portion of the landby reference to physical metes and bounds or by reference toa sufficient sketch, map or plan to be appended to her plaint.I have already adverted to the imperfect manner in which theservient tenement has been described in the schedule to theplaintiffs plaint.
Learned counsel for the plaintiff-respondent sought toovercome this culpable failure to describe the servient tenementby reference to physical metes and bounds or by reference toa sketch, map or plan, by relying on the judgment pronouncedby Chief Justice Basnayake in Adbulla vs. Junaid,23). Thedecision in Abdulla vs. Junaid is clearly distinguishable fromthe present action. In Abdullavs. Junaid (supra) the only claimof the plaintiff was for a declaration of a way of necessity. Inthe present action there is a prayer for a declaration of a rightof way by prescription and alternatively for a declaration of away of necessity. Where the claim is one to a way of necessityonly, the plaintiff does not assert that he has exercised theservitude over a defined path but claims from the Courtthrough its order a reasonable and sufficient way of necessityto be decreed by the Court. Where the plaintiff as in this actionclaims that he has exercised by prescriptive user a right of wayover a defined route, the obligation of the plaintiff to complywith the provisions of Section 41 of the Civil Procedure Codeis paramount"and imperative.
In Abdulla vs. Junaid (supra) the plaiittiff filed with theplaint in that action a sketch where the claim to proceed alonga defined path had been indicated, (vide the judgment of ChiefJustice Basnayake at 84 and the judgment of Justice Pulleat 85). Besides in that particular action before the trialcommenced, a commission was issued to a Surveyor and theplan and report of the Commissioner was filed of recordwithout objection and before the trial commenced the Courthad ample material to frame the issues, although the plaintiffin that action had not amended his plaint to describe in theschedule the metes and bounds of the servient tenement and
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to refer to the plan certified by the Commissioner. Those weresignificant features which distinguished that action from thepresent action at a point of time long before issues were framedin that action.
In the course of this trial the photocopy sketch of FVP 779was sought to be produced. Then objection was taken by thedefendant and this document PI was marked subject to proof.But that condition was not satisfied to the veiy end of the case.Strict compliance with the provisions of section 41 of the CivilProcedure Code is necessary for the Judge to enter a clear anddefinite judgment declaring the servitude of a right of way andsuch definiteness is crucially important when the question ofexecution of the judgment and decree entered arii fes forconsideration. The fiscal would be impeded in the execution ofthe decree and judgment if the servient; tenement is notdescribed with precision and definiteness as spelt out insection 41 of the Civil Procedure Code. In the circumstancesissue number seven should have been answered in thenegative and not in the affirmative.
In the circumstances the learned trial Judge was correctin rejecting the claim in reconvention filed by the defendant asthe defendant could not claim any damages as the servienttenement was not owned by him and he had no legal right toeffect any erections on it. However, the learned trial Judgefor the reasons enumerated by me in this judgment hasmisdirected him^lf grievously and has erroneously enteredjudgment for the plaintiff. In the result, we allow the appealof the defendant-appellant with costs fixed at Rs. 5,000/-payable by the plaintiff-respondent and we set aside thejudgment entered by the learned trial Judge in favour of theplaintiff-respondent and proceed to dismiss the plaintiffsaction. The appeal is allowed with costs.
KULATILAKA, J. – I agree.