073-NLR-NLR-V-55-G.-DON-ABRAHAM-Appellant-and-C.-C.-D.-SAMARAKODY-Respondent.pdf
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ROSE C.J.—Abraham v. Samarahkody
1953Present : Rose C.J. and Pulle J. .1
G. DON ABRAHAM, Appellant, and C. C. D. SAMARAK-KOBY, Respondent
S. C. 168—D. C. (Inty.) Colombo, 3,997
Servitude—Emphyteusis—Proof.
The servitude of emphyteusis is, as a rule, evidenced by a document. Theabsence, however, of such a document is not an insuperable objection.
/.PPEALi from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with Christie Fernando, for the defendantsappellants.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the- plaintiffrespondent.
Cur. adv. vult.
October 6, 1953. Rose C.J.—'
The plaintiff respondent filed an action for a partition of a field calledInduruwiladeniya. The defendant appellants intervened claiming aArd share of the land. While perhaps their position was not put beforethe learned District Judge in that form, their contention now is that theyare entitled to a ^rd share on the basis that their ancestors and they hadacquired a servitude of emphyteusis.
GRATIAEN J.—Justin Fernando v. Abdul Rahuman
276
So far as the decided cases go it would seem, as was pointed out bylearned counsel for the respondent, that an emphyteusis is, as a rule,evidenced by a document, although the absence of such a documentshould not, in theory at least, be regarded as an insuperable objection.
The practical difficulty however in the way of a party seeking to estab-lish an emphyteusis in the absence of a document is the difficulty ofproving it, ard so far as this particular case is concerned, in which theappellants do not rely upon a document as a starting point, it is in myopinion unnecessary to say more than that on the evidence adducedbefore the learned District Judge it would not be proper for this courtto hold that an emphyteusis had been established.
That being so, the appeal is dismissed with costs.
Ptxlle J.—I agree.
Appeal dismissed.