125-NLR-NLR-V-58-DE-SOYSA-Appellant-and-FONSEKA-Respondent.pdf
1957Present: Basnayake, C.J., and Pulle, J.DE SOYSA, Appellant-, and FOXSEIvA, Respondent-S'. C. 33—D. C. Colombo, 6,070fL
Servitude—Prescriptive user by licensee—Quantum of evidence necessary.
When a user of immovable property commences with leave and licenco thepresumption is tliat its continuance rests on tho permission originally granted.Clear and unmistakable evidence of tho commencement of an adverse userthereafter for tho prescriptive period is necessary to entitle tho licensee to claima servitude in respect of the premises.
jAlPPEAL from a judgment of the District Court, Colombo.
Ar. Weerttsooria, Q.C., with !Jr. D. Gunasekera, for Plaintiff-Appellant.
N. Nadarasu, with -S'. Sharvananda, for Defendant-Respondent.
Cur. adv. vult.
March 21, 1957. Basnayake, C.J.—
The plaintiff-appellant and the defendant-respondent are the ownersof adjoining premises No. 33 Park Avenue and No. IS Gunasekera Dane.The plaintiff’s father was the owner of both properties till 1919 in whichyear he gifted No. 33 to the plaintiff and No. IS to her brother Dr. L. C.Gunasekera. By virtue of a reservation in the plaintiff’s deed of giftthe father took the rents and profits of No. 33 as he Mas entitled tountil her marriage in 1933.
In that year the plaintiff’s brother Herod Gunasekera began to lookafter her premises and collect her rents. Shortly after the executionof the deed of gift in his favour Dr. L. C. Gunasekera left, for Englandto prosecute his medical studies. During his absence abroad his fathermanaged No. IS and collected its rents. lie returned in 1927 or 192S.On his return from England he began to collect the rent of his househimself.
In 1921 the tenant of No. 33 was a Municipal Engineer who wanteda garage for his car. The plaintiff’s father ’who was then managingboth No. IS and No. 33 built a garage for him in No. 18. The reasonfor building the garage in No. IS and not in No. 33 M ould appear to bethat at that time No. IS had access to the main road M'hile No. 33 hadnot. It Mould also appear tliat the tenants of No. IS at all materialtimes were medical students M'ho did not need a garage.
In 1945 Dr. Gunasekera sold his house to the defendant. Disputesarose thereafter as to tho right of the tenant in No. 33 to use the garagein No. IS and the roadway to it. These disputes led to proceedingsin the Magistrate’s Court and finally to the present action.
The learned trial Jndge has found that—
there has been no adverse possession of the garage and the roadway,
and
even if adverse possession had commenced in 1933 the evidence
does not establish an uninterrupted user of ten years there-after.
I see no reason to interfere with that finding of fact .
Servitudes arc onerous and the law does not favour them and it isincumbent on a person who claims a servitude to establish his claimb3r clear and satisfactory evidence of the strongest kind. There is noevidence that the user which commenced with the leave and licenceof the owner of No. IS was at a 113' time converted to an adverse user.When a user commences with leave and licence the presumption is thatits continuance rests on the permission originally granted. Clear andunmistakable evidence of the commencement of an adverse user there-after for the prescribed period is necessary to entitle the claimant to adecree in his favour. There is no such evidence in the instant case.
It would appear that the plaintiff’s brother Dr. L. C. Gunasekerawas present at the trial of this action, but he was not called by the plain-tiff to testify to the fact that the user of the roadwa}' and garage wasnot with his permission. He was a material witness for the plaintiffas he alone was in a position to testify to that fact. The burden ofproof being on the plaintiff, the presumption is that Dr. Gunasekera’sevidence would, if produced, have been unfavourable to her.
For the above reasons the appeal is dismissed with costs.
Appeal dismissed.
Polt.e, J.—I agree.