014-SLLR-SLLR-2009-V-1-GODAMUNE-vs-MAGLIN-NONA.pdf
CA
Godamune vs. Magilin Nona
109
GODAMUNE
vs
MAGILIN NONA
COURT OF APPEALSALAM. JCA 396/2006 (F)
DC COLOMBO 17237/LMAY 26, 2008
Right of way of necessity – Purchase of a landlocked subdivided portionof a larger land – Is he entitled in law to seek a way of necessity over theadjacent land? – Can a splitting of a land impose a servitude upon theneighbours?
The plaintiff-respondent claimed a servitude consisting of a right of waybased on prescription, and also access by way of necessity over a landowned by the defendant.
The trial Judge rejected the claim based on prescription but came tothe conclusion that the plaintiff is entitled to use the strip of land as away of necessity.
The defendant-appellant contended that, a person who had purchaseda landlocked sub divided portion of a larger land which had a roadfrontage to a public road is not entitled in law to seek a way ofnecessity over the adjacent land, without making a claim for such away against his vendor or the owners of the other subdivided lots of thelarger land.
Held:
An owner of a land, who by his own act deprives himself of accessto a road is not entitled to claim a right of way of necessity over theland of another.
When a piece of land is split into two or more parts, the backportion must retain its outlet over the front portion ever thoughnothing was said about it, because the splitting of the land cannotimpose servitude upon the neighbours.
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AN APPEAL from a judgment of the District Court of Colombo.
Cases referred to:-
Wilhelm vs. Norton – 1935 FDL 143 at 169
Peacock vs. Hodges – 6 Buch at 69 (Buchanam, James. & EJReports)
Suppa Navasivayam vs. JanapathipHlai 33 NLR 44
Nagalingam vs. Kathirasa Pillai – 58 NLR 371
Costa vs. Rowell – 1992 – 1 – Sri LR 5 at 9
Gamini Marapona PC with Navin Marapona for defendant-appellantsNihal Jayamanne PC with Dilhan de Silva for plaintiff-respondent
■April 28, 2009ABDUL SALAM, J.
The plaintiff-respondent (plaintiff) sued the defendant-appellant (defendant) for a declaration that she is the ownerof the allotment of land marked as 4 C depicted in planNo 3021 made by M. Sathyapalan, Licensed Surveyor. Therewas no contest as regards the ownership of the allotment ofland marked as 4C and the learned district Judge quite rightlydeclared the plaintiff as being the owner of the saidallotment.
The main dispute that arose in the case was whether theplaintiff is entitled to use lot 5 depicted in the said No 3021 asa right of way to have access to the said lot No 4. Admittedlythe defendant is the owner of lot 5.
At the trial, as has been correctly observed by the learneddistrict Judge, the plaintiff has failed to establish her claimfor a servitude constituting a right of way over lot 5 andtherefore rejected the plaintiff’s claim based on prescription.
However, the learned district Judge came to the conclusionthat the plaintiff is entitled to use the strip of land depicted
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Godamune vs. Magilin Nona
(Abdul Salam, J.)
Ill
as lot 5, belonging to the defendant as a way of necessity tohave access to her allotment of land marked as lot. 4. Thepresent appeal has been preferred against the judgment ofthe learned district Judge dated 7th July 2000, declaring theplaintiff to be entitled to use lot 5, as the means of access toher allotments of land as a right of way of necessity.
The learned president’s counsel of the plaintiff hassubmitted that a way of necessity (via necessitates ornoodweg)is a right of way granted in favour of a property over anadjoining one, constituting the only means of ingress to andegress from the former property to some place with which itmust of necessity have a communicating link. In this respectthe learned President’s Counsel has cited Grotius 2.35.8 and11, where it is stated that such a right of way, may be apermanent way to enable access to public road. He has alsoreferred me to the judgment in Wilhem vs.Nortonll) at 169,where it is stated that the land that do not adjoin a high wayor neighbours road are entitled to the necessary access to ahigh way.
The learned President’s Counsel has further submittedthat the grant of a right of way of necessity originated inRoman law and that it can be claimed from the neighbouringowner, as of right when the circumstances warrant it (Voet8.3.4) and in terms of the judgment in Peacock Vs Hodge^2)at 69, such claim for a way of necessity should be restrictedto the actual necessity of the case. In other words thecontention made on behalf of the plaintiff is that she has beenrendered Landlocked and the use of the defendants land issheer necessity to enter upon and depart from the land inquestion.
On the other hand, on behalf of the defendant the learnedpresident’s counsel has persistently argued that a person whohad purchased a landlocked sub divided portion of a larger
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land is not entitled in law to seek a way of necessity over theadjacent land, to wit; over lot 5 belonging to the defendant.
The facts as revealed in the evidence and relevant tothe background of the dispute need to be elaborated. Lot 4Cbelonging to the plaintiff was part of a larger land knownas lot 4 which in turn was a part of several amalgamationof lands known as Kebellagahawatta, Migahawatta,Siyambalagahawatta, Galtotawatta, Jambolagahawattaand Galtotewatta Kebella Gahawatta in extent 6 Acres
Rood and 5 perches. It was owned in common by severalpeople including Seelawathie Perera, the immediatepredecessor in title of the plaintiff. By indenture bearing No895 dated 3rd July 1980, Atapattu Corenelis Perera, HewagamaSeelawathie Perera co-owners amicably partitioned the saidland among them by mutually allotting to each party dividedand defined allotments of land in lieu of their undividedrights, as per plan of partition bearing No 37638 dated 22ndMay 1980 made by N. S. Sirisena, Licensed Surveyor.
As far as the present dispute is concerned, HewagamageSeelawathie Perera was allotted lot plan No 3763 in extent
Roods and 35.5 perches with considerable road frontageand lot 5 being an elongated strip of land presumably serve asa means of access in extent 21.61 perches and lot 2 in extent
Roods and 6.33 perches to Hewagama Albert Perera.Admittedly Hewagama Albert Perera by deed No 24490dated 3rd September 1984 attested by D.W. Ratnayaka N.Phas transferred all his rights from and out of the said lots2 and 5 to the defendant in this case.
Hewagamage Seelawathie Perera having seized andpossessed of the said lot No 4 in plan No 3763 had subdividedthe same into four allotments of land identified as 4A,4B,4Cand 4D thus rendering lot 4A to continue to remain as theonly subdivided block with total road frontage on the west and
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Godamune vs. Magilin Nona
(Abdul Salam, J.)
113
without any right of way or road frontage or other means ofaccess to 4B, 4C and 4D, sold and conveyed lot 4D to theplaintiff by deed No 304 dated 24th August 1986 attested byY. G. S. Perera, N.P.
Even though by deed No 304, Seelawathie Perera hadpurportedly transferred the right to use lot 5 in favour ofthe plaintiff, admittedly she has no rights whatsoever toassign or transfer or otherwise alienate the right to use lot 5as she had purportedly done. In the circumstances, the onlyquestion the learned district Judge considered was whether,the plaintiff is entitled to a right of way of necessity over andalong lot 5 to have ingress and egress from her lot No 4 D tothe nearest public way.
As has been quite correctly contended by the learnedPresident’s Counsel for the defendant the legal issue thatarises in this appeal is whether a person who has bought alandlocked subdivided portion of a larger land, which hadroad frontage to public road, could seek a way of necessityover his neighbour’s land, without making a claim for such away against his vendor or the owners of the other subdividedlots of the larger land.
The undisputed evidence led at the trial in this case,unequivocally points to the facts that Seelawathie Perera whooriginally owned the entirely of lot 4 with full road frontageon the west of the said lot had by her own act in subdividingthe same into four subdivided allotments has deprivedherself of the right of access to lot 4B to 4D and thus madeit to be surrounded entirely a landlocked block. The learneddistrict Judge has either ignored or failed to take this matterinto consideration or apply the principle of law relevant tothe dispute, as has been clearly laid down in the reportedjudgments, although they have been submitted in the writtensubmissions tendered by the defendant.
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The simple question the trial judge ought to haveconsided was whether Seelawathie Perera who subdividedlot 4 into four allotments of land without providing anymeans of access to lots 4B to 4D could have sought a right ofway of necessity over the land of her neighbour, had she notdisposed of her interest in 4D. According to the fundamentalprinciple of law, she is undoubtedly not entitled to make sucha claim against her neighbour and as such her successorin title could not have acquired a greater right than whather predecessor enjoyed. As a matter of fact the plaintiff hasacquired the rights what Seelawathie Perera had in respectof lot 4D and therefore the obstacle that stood in the wayof the plaintiff in relation to the claim of the right of way ofnecessity over the defendants land would be the same as whatSeelawathie Perera would have been confronted with.
In this respect it is suitable to consider the judgment inSuppu Navasivayam vs KanapathipillaP] where His LordshipMaartensz expressed the view that an owner of a land, whoby his own act deprives himself of access to a road, is notentitled to claim a right of way of necessity over the land ofanother.
Let me also refer to the relevant passage of the judgmentin the case of Nagalingam vs Kathirasa PillaP] at 371 where itwas observed by Gratiaen J as follows:
“The plaintiffs claim clearly cannot be sustained as lot4 originally formed part of a larger land which wasadmittedly served by the Northern lane. Upon thesubdivision of the larger land, each person who receivedan allotment which would otherwise be landlocked-automat-ically became entitled under the Roman Dutch law to a rightof way over the allotment or allotments adjoining the publiclane. (Massdorp-Edition 7th II pp 182-183).
According to Wilhelm Vs Norton (Supra) when a piece ofland is split into two or more portions, the back portion mustretain its outlet over the front portion, even though nothing
CA
Godamune vs. Magitin Nona
(Abdul Salam, J.)
115
was said about it, because the splitting of the land cannotimpose servitude upon the neighbours.
In the light of the principles of law discussed above,suffice it would be to conclude with the authoritativepronouncement made by His Lordship Wijetunga, J in thecase of Costa Vs RoweUS) at 9 to the following effect:
“By reason of the said subdivision, the servitude couldnot be imposed upon the defendant who was only aneighbour. Even if the access to the UC Road would beless convenient from the point of view of the plaintiff, shewould not be entitled to claim a right of way on the ground ofnecessity over the neighbour’s land when she has a legalright of access to the public highway over the interveningsubdivisions of the larger land”.
For the foregoing reasons, it is quite apparent that thelearned district Judge could never have granted the plaintiffa right of way of necessity over and along lot 5 belonging tothe defendant and he had absolutely no discretion or otheroption than to dismiss the plaintiffs action, when he was notsatisfied that the plaintiff had failed to establish the claimfor the right on prescription. As such, it goes without sayingthat the conclusion reached by the learned district Judge hasin fact ended up in a miscarriage of justice and occasioned atravesty of law. Since no purpose would be served by orderinga fresh trial, I feel obliged to set aside the impugned judgmentof the learned district Judge and substitute the same withthe dismissed of the plaintiffs action.
It is my view that the plaintiff ought to have vindicatedher right against the owner of the intervening subdivisions oflot 4 including her immediate predecessor, if she wanted toemerge as victorious.
Accordingly, I allow the appeal with costs payable by theplaintiff to the defendant fixed at Rs 5250/-
Appeal allowed