Sri Lanka Law Reports
120001 2 Sri L.R.
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
(Jayasurlya, J.l
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
Sri Lanka Law Reports
120001 2 Sri L.R.
& 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
(Jayasuriya. J.)
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
Sri Lanka Law Reports
(200012 Sri L.R.
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.
Appeal allowed.