Sri Lanka.Law Reports
 1 SriL. R.
v.EDWIN AND OTHERS
COURT OF APPEAL
ATUKORALE, J. (PRESIDENT) AND G. P. S. DE SILVA. J.C.A. (S.C.) No. 974/75 (F)-D.C. GALLE 8174/ L.FEBRUARY 9 AND 10,1984.
Right of way- Prescriptive user- Does the mere enjoyment of the right amount to anadverse user ?
The plaintiff filed action claiming a right of way from his land over two lands belonging tothe defendants, by virtue of prescriptive user and also as a way of necessity. Thedefendants denied the existence of the alleged right of way and averred that theplaintiff's land was bounded on the South by the V. C. road from which he could obtainaccess to his land.
The Magistrate dismissed the plaintiffs action on the ground that he had failed toestablish that he had prescribed to the right claimed and that even if he had used theright of way. claimed by him he had done so with the leave and licence of the 1 $tdefendant and further that he had access to the V. C. road.
In the circumstances of this case once the plaintiff established physical user of the rightof way for the prescriptive period, he was entitled to succeed on the issue ofprescriptive user. The mere enjoyment of the right is proof of adverse user. On theevidence the plaintiff has proved adverse user of the right of way claimed by him forover the prescriptive period, and is therefore entitled to the'right of way claimed and tobe restored to the possession thereof.
Case referred to
(1) Headv. ToitS.A.L.R. t932 C.P.D. 287.
APPEAL from the District Court. Galle.
P. A. D. Samapsekerta with Nihal Jayawardena and G. L. Geethananda for theplaintiff-appellant.
N. Devendra for the 1 st and 2nd defendants-respondents.
Cur. adv. vult.
Mercin v. Edwin (Atukorale, J.)
March 22. 1984.
ATUKORaLe. j. (President)
The plaintiff is the elder brother of the 1st defendant. The 2nddefendant is the son of the 1st defendant. The plaintiff and the 3rddefendant are the owners in equal shares of the land calledEgodawatte alias Godaudawatta depicted as lot C in Final Plan marked1D1. The plaintiff filed this action against the 1 st and 2nd defendantsclaiming a right of way from his land over two lands belonging to the1st and 2nd defendants (hereinafter referred to as the defendants)called Mahahenawatta and Kurunduhena to the Polpagoda-HiyareV.C. road forming the northern boundary of the defendants’ lands.This right of way claimed by the plaintiff is depicted as lots 1. 2 and 3in surveyor Guruge's Plan marked P1 prepared for'the purpose of thisaction. According to P1 the right of way. as one proceeds southwardsfrom the V.C. road, runs firstly through Mahahenawatta and thenthrough Kurunduhena (both belonging to the defendants) and thenenters the plaintiff's land. It is then shown to proceed through theplaintiff’s land towards the south-west. The evidence seems to be thatafter leaving the plaintiff's land the path goes over an 'edanda' andrejoins the same V.C. road on the south-west about 1 /4th of a mileaway from the plaintiff's land. The distance from the V.C. road on thenorth to the plaintiff's land along lots 1, 2 and 3 is about 1 /8th of a 'mile. According to the plaintiff this right of way was about 6 feet inwidth. Me claimed it both by virtue of prescriptive user and also as away of necessity.
The defendants denied the existence of the alleged right of way overtheir lands. They also averred that the plaintiff's land was bounded onthe south by the V.C. road from whjch he could obtain access to hisland. They further maintained that the plaintiff had always used thepath leading from the V.C. road on the south-west to gain access tohis land and that he never used the .right of way depicted as lots 1.2.and 3 in Plan P1
After hearing the evidence the learned Magistrate dismissed theplaintiff's action. He held that the plaintiff had failed to establish thathe had prescribed to the right of way claimed by him. He also held thatthe plaintiff had access to the V.C. road along the path to' the
Sri Lanka Law Reports
(1984] 1 SriLR.
south-west of his land, that he had used that path and that even if theplaintiff had used the right of way claimed by him he had done so withthe leave and licence of his younger brother, the 1st defendant. Thelearned Magistrate further held that although the plaintiffs land wasbounded on the south by the V.C.. road yet owing to the steepembankment on that side no access was possible therefrom to enterhis land. This latter finding of the learned Magistrate was notchallenged before us and must be accepted as correct. In the resultthe learned Magistrate held against the plaintiff both on the questionof prescriptive user as well as a way of necessity. The present appealis from this judgment.
Learned counsel for the plaintiff has before us strenuouslychallenged the finding of the learned Magistrate on the issue ofprescriptive user. He submitted that the learned Magistrate hadmisdirected himself on several important items of evidence in the caseand thereby drawn certain conclusions adverse to the plaintiff whichare irrational and untenable. These misdirections arose, according to 'learned counsel, as a result of the failure of the learned Magistrate tomake a careful and impartial evaluation of the evidence as a whole. Hecontended that a proper aVialyslS of the evidence establishes that theplaintiff has prescribed to the right of way claimed by him. Learnedcounsel for the plaintiff made no submissions to us on the alternativeclaim for a way of necessity.
A perusal of the judgment and a close scrutiny of the evidence, bothoral and documentary, show that this submission of learned counselfor the plaintiff is entitled to succeed. The judgment is founded oncertain inferences adverse to the plaintiff's case. These inferences donot appear to be borne out by the evidence in'the case. For instancethe learned Megistrate finds on the evidence of surveyor Guruge andhis report to court that the path leading from the plaintiff's land overlot B to the V.C. road on the south-west is one that is available to theplaintiff to gain access to the V.C. road without any hindrance and assuch it was not necessary for Guruge to have surveyed the same.Guruge's evidence, however, was that when he attempted to surveythat path and did so close to the 'edanda' the owners of that landprotested denying the existence of a right of way in that direction. It isno doubt true, as pointed out by learned counsel for the defendants,that Guruge in his report to court makes no reference to this protest.But from this fact one cannot reasonably infer that there was no
Mercin v. Edwin (Atukorale, J.)
objection to the user of that path and that it was freely available to theplaintiff. It is clear that the commission issued to Guruge authorisedhim to survey only the right of way which the plaintiff claimed wasobstructed by the defendants, namely lots 1. 2 and 3 in his Pian P1and no other. There was thus at the stage of his survey no necessityfor Guruge to have referred to the objection of the landowners in hisreport. Accepting the evidence of Guruge as the learned Magistratedid, it becomes clear that the Magistrate erred in reaching, theconclusion that the plaintiff had the free.and unobstructed user of thepath to the south-west of his land. Similarly upon an examination ofthe Final Partition Plan 101 of 1941 upon which the entire landEgodawatte was partitioned and the plaintiff was a Noted lot C, thelearned Magistrate states that there is no indication whatsoever of theexistence of the right of way leading to the plaintiff's house from theV.C. road on the north. He then proceeds to hold that the absence ofany such indication in 1D1 establishes that there was at that time nodefinite right of way from that direction as claimed by the plaintiff .Thelearned Magistrate seems to have placed much reliance on this fact todiscredit the plaintiff's version. In >hy opinion, however, he is wrong indrawing such an inference against the plaintiff. For Plan 1D1 mates itequally clear that the path to the south-west of lot C which thedefendants asserted was the one used by the plaintiff at the time isitself not depicted therein, even though its entire length ran throughthe corpus partitioned ih that case. Moreover, as pointed out bylearned counsel for the defendants, there was no legal requirementunder the old Partition Ordinance to depict any existing paths orroadways in partition plans. In any event by far the greater length ofthe right of way claimed by the plaintiff would have fallen outside thecorpus in Plan 1D1 and as such could not possibly have been depictedtherein. Hence the learned Magistrate was not justified in drawing aninference adverse to the plaintiff from the absence of the right of wayclaimed by him in Plan 1D1. Another factor which has weighed heavilyin the mind of the learned Magistrate in rejecting the plaintiff's claim isthe alleged failure of the plaintiff to make a prompt complaint to anyperson or authority when his right of way was obstructed by thedefendants . The learned Magistrate takes the view that theobstruction was, according to the plaintiff, in 1970 but the plaintifftook no action till the present action was filed in 1973. There is littledoubt that according to the plaintiff the dispute arose in July 1970
Sri Lanka Law Reports
[t 984] 1 SriL.R.
when the defendants cut drains across the right of way and startedplanting tea. He'stated that he complained to the Police who inquiredinto his complaint and that later he complained to the ConciliationBoard. The 1 st defendant in the course of his evidence admitted that apolice officer (Ratnayake) came to the land in 1970 several times andthat he told him that he could not give the right of way claimed by theplaintiff. He also accepted the fact that a member of the ConciliationBoard came to'inspect the land upon the plaintiff's complaint. Learnedcounsel for the defendants submitted that this evidence of the 1stdefendant was in reference to what transpired after the complaint1D3 was made by his son Ratnapala(the 2nd defendant) against theplaintiff and not upon the alleged complaint of the plaintiff. But I amunable to accept the submission of learned counsel for thedefendants. 1D3 is a complaint dated'14.6.1971 and not in 1970when the police officer admittedly came to the land for inquiry. Furtherit was never suggested to the plaintiff during cross-examination thatthe Police inquiry was in consequence of the complaint 1D3 in 1971and not as a result of the plaintiff's complaint in 1970. I am of theopinion that the learned Magistrate has misdirected himself on thispoint.1
During the course of his judgment the learned Magistrate states thateven if the plaintiff did use a right of way over the defendants' lands hedid so with the leave and licence of the 1 st defendant, his youngerbrother and as such he has not proved prescriptive user. In thisrespect it is necessary to note that it was not the defendants' casethat the plaintiff used the right of way with the permission of the 1stdefendant. Their position was .that no right of way was ever used bythe plaintiff over their lands. The pleadings and issues make thisposition' very clear. As the defendants totally denied any user by theplaintiff, no question of permissive user arose for determination by thelearned Magistrate. The learned Magistrate seems to have entertaineddoubts about the veracity of the defendants' complete denial of anyuser by the plaintiff. But for the fact that the learned Magistratemisdirected himself on the matters set out by me above, there was inmy view ample evidence to substantiate a finding in the plaintiff'sfavour on the issue of prescription, l am also in agreement with thesubmission of learned counsel for the plaintiff that in thecircumstances of this case once the plaintiff established physical userof the right of way for the prescriptive , period he, was entitled tosucceed on the issue of prescriptive user. In Head v. Toit (1) it was
Martin v. Edwin (Atukorate. J)
urged that the plaintiff in a claim for a servitude based on prescriptionmust prove not only user for the prescriptive period but must alsoestablish that the user was adverse for which purpose the plaintiffmust show positively that the user was not with the permission of theowner of the servient tenement. This contention was rejected bySutton, J. who adopted the following statement of the law laid downby Maasdorp in Institutes of'Cape Law (Vol: 1, p. 226):
‘In the case of an affirmative servitudethe mere enjoyment of
the right in question is in itself an adverse act.'
I hold that on the facts in the instant case the plaintiff has provedadverse user of the right of way claimed by him for over theprescriptive period.
The only other matter that remains for my consideration is thefinding of the learned Magistrate that the right of way runs over a partof Crown land and hence the plaintiff has no right to claim this rightwithout making the Crown a party to the action. Suffice it to say thatthe learned Magistrate's finding on this matter is not one that arose forhis decision. The defendants admitted and in fact claimed that theywere the owners of the two lands constituting the servient tenements.The learned Magistrate therefore clearly erred in holding that theCrown was the owner of the second land over which the right of waypassed.
For the above reasons I allow the appeal. The judgment of thelearned Magistrate is set aside. The plaintiff as a co-owner of lot C inPlan 1D1 is declared entitled to a right of way four feet in width overthe two lands of the defendants along the track depicted as lots 1, 2and 3 in surveyor Guruge's Plan P1 by virtue of prescriptive user. He isalso entitled to be restored to possession thereof. The 1st and 2nddefendants are directed to remove the obstruction to the said right ofway. The plaintiff will be entitled to nominal damages fixed at Rs.
per annum from July, 1970 until he is restored to possession.He will be entitled to costs of the lower court and a sum of Rs. 525.00as costs of this appeal. The damages and costs are payable by the 1 stand 2nd defendants.
P. S. DE SILVA, J>l agree.
IN v. EDWIN AND OTHERS