FERNANDO v. WICKREMASINGHE

007-SLLR-SLLR-1998-V-3-FERNANDO-v.-WICKREMASINGHE.pdf


CA
Fernando v. Wickremasinghe
37
FERNANDO
v.WICKREMASINGHE
COURT OF APPEALDE SILVA, J„
WEERASURIYA, J.,
A. NO. 55/96
C. MT. LAVINIA/493/95 LAUGUST 31 ST, 1998
Right of access – Injunction – Prima facie case – balance of convenience – CivilProcedure Code – S. 18 addition of party – Non-joinder – Praedial Servitudes.
The plaintiff-respondent acquired ownership of lot 789 with the right of way overlots 769 and 779. The defendant-petitioner obtained by way of gift from the originalowner the rights to use the roadway over lot 779.
On an application of the plaintiff-respondent, the District Court restrained thedefendant-petitioner from using the same right of way over lots 769 and 779.
Held:
The defendant-petitioner relied on a purported gift of a right of way ofservitude of user of a roadway granted by the original owner M. It appearsthat M. having amalgamated his land with that of J. subdivided it into 16lots inclusive of two road reservations and transferred the right of accessover such lots to J. in common with the owners of other lots other anddisposed all his right, title and interest to several persons. M. has covenantedand agreed that right of way over lots 769 and 779 should be used bythe owners of lots 780-785 only in common with owners of lots 764-778.J too disposed all his rights together with the right of way over lots 769,779, 780 to several persons.
Thus there existed a serious matter to be tried in relation to the legalrights of the plaintiff-respondent and that he had a reasonable prospectof success even in the light of defences, the defendant had pleaded.
The sequential test of considering where the balance of convenience liesis fulfilled by weighing the injury which the defendant will suffer if theinjunction is granted and where he would ultimately turn out to be thevictor, against the injury which the plaintiff will suffer if the injunction wererefused and where he would ultimately turn out to be the victor.
A person who had no soil rights in respect of a road reservation couldnot maintain an action for a declaration that defendant was not entitled
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[1998] 3 Sri L ft.
to a servitude of right of way over such road reservation. Praedial servitudescan only pass with the Land.
Application in Revision from the order of the District Court of Mt. Lavinia.Cases referred to:
M. D. B. Saparamadu v. Violet Catherine Melder CA 688/42F CAM 22.3.96.
K. K. Gunadasa v. J. Subasinghe CA 92/95 CAM 27.3.95.
Felix Bandaranaiyake v. The State Film Corporation 1981 (2) SLR 287.
Amarasekera v. Mitsui & Company Ltd., 1993 (1) SLR 22.
Mahenthiran for defendant-petitioner
Nihal Jayamanna PC with Noorani Amerasinghe for plaintiff-respondent
Cur. adv. vult.
October 30, 1998WEERASURIYA, J.
By this application defendant-petitioner is seeking to set aside theorder of the District Judge dated 22.02.1996, restraining him from usinga right of way over lots 769 and 779 morefully described in the 6thand 7th schedules to the plaint, marked P1.
The plaintiff-respondent by plaint dated 03.09.1995 instituted actionagainst the defendant-petitioner seeking inter alia the following reliefs.
A declaration that deed No. 11685 dated 28.05.1993 attested byA. B. W. Jayasekara NP is void ab initio and conveys no title anda direction to the Registrar of Lands, Colombo, to cancel theregistration of the said deed.
A declaration that the defendant-petitioner, his servants, agents andall those holding under him have no right of access to the tworeservations for road described in the 6th and 7th schedules tothe plaint.
A permanent injunction restraining the defendant, his servants,agents and all those holding under him from entering the afore-mentioned two reservations for road described in the 6th and 7thschedules of the plaint.
CA
Fernando v. Wickremasinghe (Weerasuriya, J.)
39
An interim injunction restraining the defendant, his servants, agents
and all those holding under him from entering the said two res-ervations described in the 6th and 7th schedules of the plaint.
An enjoining order in the like manner.
The facts as set out in the plaint are briefly as follows:
Mohamad Sultan Marikkar and Gregory Edward Anthony PereraJayawardena were owners of adjoining lots 147A4 and 147A5,respectively as shown in plan No. 2105 made by K. M. Samarasinghe,licensed Surveyor. The said Marikkar and Jayawardena by mutualconsent amalgamated the said lots 147A4 and 147A5 and subdividedit into 22 lots shown as lots 764-785 in plan No. 2415 prepared bySameer, licensed Surveyor. Lots 769, 779, and 780 were marked ascommon road reservations as access for the aforesaid lots. ThereafterMarikkar by deed marked 'C' conveyed unto Jayawardena the rightof access in common with the owners of other lots and thereafterhe disposed all his right, title and interest in the said lots togetherwith the right of way over 769 and 779 to several persons. Similarly,Jayawardena had disposed all his right, title and interest in theallotments of land together with the right of way over lots 769, 779and 780 to several persons. The plaintiff-respondent by deed marked‘D1 acquired ownership of the lot 784 with building standing thereontogether with the right of way over lots 769 and 779.
The Commissioner of National Housing by deed of transferNo. 8010 dated 04.01.1983 conveyed the ownership of premisesNo. 3/2, Waidya Place, Dehiwala, to Grace Fernando (mother ofdefendant) who by deed of gift No. 139 dated 03.09.1984 gifted anundivided 1/3 share of the said premises to her daughter NilminiFernando. Thereafter, the aforesaid Grace Fernando by deed Nos.11587 and 11588 dated 10.09.1993 gifted an undivided 1/3 share eachto her two sons namely, Chrysanthus Fernando and Eulogious Fernando(the defendant-petitioner). The defendant-petitioner, Nilmini Fernandoand Chrysanthus Fernando had caused the said premises subdividedinto 3 lots marked 2765, 2766 and 2767 in plan No. 41 made byW. D. D. Gunadasa licensed Surveyor and executed deed of partitionNo. 11762 dated 10.08.1993. By the said deed of partition NilminiFernando, Chrysanthus Fernando and the defendant-petitioner hadbeen declared owners of lots 2767, 2766, respectively.
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Sri Lanka Law Reports
(19981 3 Sri LR.
The defendant-petitioner by deed No. 11685 dated 28.05.1993obtained by way of gift from original owner Marikkar, the right to usethe roadway over lot 779 shown in plan No. 2415.
At the hearing of this application, learned counsel for thedefendant-petitioner submitted the following matters:
that the District Judge had misdirected himself by holdingthat the plaintiff-respondent had made out a prima facie case;
that the District Judge had erred by holding that balance ofconvenience lie with the plaintiff-respondent.
The contention of learned counsel for the defendant-petitioner thatno prima facie case had been made out by the plaintiff-respondentwas based on the following grounds:
that plaintiff-respondent was entitled to the servitude of a rightof way over lots 769 and 779 and that he had not acquiredsoil rights;
that original owner Marikkar had not divested his soil rightsover lots 769 and 779 and that he had gifted the right touse the access over lots 769 and 779 to the defendant-petitioner;
that the plaintiff-respondent could not have maintained theaction as he had failed to name the grantor of the deedas a party to the action.
Learned counsel for the defendant-petitioner cited two unreportedcases namely, M. D. B. Saparamadu v. Violet Catherine Melder0' andK. K. Gunadasa v. J. Subasinghef21 wherein the principle was acceptedthat a person who enjoyed only a servitude of a right of way, willbe debarred from seeking a declaration that another person has noclaim for a servitude of a right of way.
Hall and Kellaway in 'The Law of Servitudes’ at page 2 states that:
“Praedial servitudes are constituted in favour of a particular
praedium and can only pass with the land. The dominant owner
CAFernando v. Wickremasinghe (Weerasuriya, J.)41
cannot transfer the land to someone else and keep the servitudefor himself or vice versa, nor can he let the servitude, or lend theuse of it to strangers apart from the land."
It was observed in M. D. B. Saparamadu v. Violet Catherine Melder(supra) that where a person who enjoyed a servitude was obstructed,he could bring an action against the person who obstructed him frominterfering with the enjoyment of the servitude. However, it was laiddown that a person who had no soil rights in respect of a roadreservation could not maintain an action for a declaration that defend-ant was not entitled to a servitude of right of way over such roadreservation.
In the instant case, the defendant-petitioner relied on a purportedgift of a right of servitude of user of a roadway granted by the originalowner Marikkar. It would appear that the said Marikkar havingamalgamated his land with that of Jayawardena, subdivided it into16 lots, inclusive of two road reservations and transferred the rightof access over such lots to Jayawardena and disposed all his right,title and interest to several persons. It is to be observed that Marikkarby deed marked 'C' had covenanted and agreed that right of wayover lots 769 and 779 should be used by the owners of lots 780to 785 only in common with the owners of lots 764 to 778. Thusthere appears to be a serious question, in the sense of a matter tobe tried that was not frivolous or vexatious. The learned District Judgewas expected to consider all the material before him and decidewhether the plaintiff's prospect of success was real and not fancifuland that he has more than an arguable case.
It is to be observed that what the plaintiff-respondent had to placebefore the District Judge was the existence of a prima facie case.It has been held in Felix Bandaranaiyake v. The State Film Corpo-ration, that making out of a prima facie case would mean that aserious question must exist to be tried in relation to a person's legalrights and that probabilities were that he would win. Similarly, inAmarasekera v. Mitsui & Company Ltd.w it was held that where therewas a prima facie case and a reasonable prospect of success andthe plaintiff had actual and legally recognizable rights and the balanceof convenience was in his favour, an interim injunction should begranted.
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Sri Lanka Law Reports
[1998] 3 Sri LR.
Upon an examination of all the material placed before the DistrictJudge, one is justified in forming a prima facie impression that aserious matter existed to be tried in relation to the legal rights of theplaintif-respondent and that he had a reasonable prospect of successeven in the light of defences, the defendant had pleaded.
The sequential test of considering where the balance of conven-ience lies is fulfilled by weighing the injury which the defendant willsuffer if the injunction is granted and where he would ultimately turnout to be the victor, against the injury which the plaintiff will sufferif the injunction were refused and where he should ultimately turn outto be the victor. The main factor that has to be considered is theextent of the uncompensatable disadvantage or irreparable damageto either party. Having considered all the material placed before theDistrict Judge, the conclusion is inescapable that the District Judgehad rightly formed a prima facie impression, that the balance ofconvenience lay with the plaintiff-respondent and equitable considera-tion would favour the grant of an interim injunction. The object ofissuing an interim injunction is to preserve the property in dispute isstatus quo until the the conclusion of the trial.
The contention of learned counsel that the plaintiff-respondentcannot have and maintain the action without naming the grantor asa defendant is dependant on the basis of a non-joinder of a party.It is to be noted that a person who is no more than a witness neednot be named as a party defendant. The plaintiff-respondent hassought a declaration that the deed in question was void ab initio andsince the grantee of the deed was the defendant the question mayarise whether or not there is a legal requirement to name him asa party-defendant. It is to be noted that section 18 of the CivilProcedure Code makes provision for the addition of parties to enablecourt effectually and completely to adjudicate upon all the questionsinvolved in the action.
For the foregoing reasons, I am of the view that there is no basisto interfere with the findings of the District Judge. In the circumstances,. I dismiss this application with costs.
DE SILVA, J. – I agree.
Application dismissed.