024-NLR-NLR-V-56-K.-CHELLAN-Appellant-and-PONNAN-et-al-Respondent.pdf
6ANSON1 J.—Ohettan v. Ponnan
1)5
1954
Present: Sansoni J.K. CHELLAN, Appellant, and PONNAN et al., RespondentsS. G. 143—G. R. Point Pedro, 1,001
Co-owner—Owner also of adjoining land—Hie right to go over the common propertyto reach the adjoining land.
Where in the partition of a land owned in common a portion of it is reserved ascommon property for use as a lane, a co-owner is entitled to use the lane in orderto reach an adjoining; land which belongs solely to him if by doing so he does notinterfere with the substantial rights of the other co-owners.
^^.PPEAL from a judgment of the Court of Requests, Point Pedro.
11. 11*. Tamhiah, with V. Ratnasdbapathy, for the plaintiff appellant.
»S'. J. ]'. Chelvanayakam, Q.C., with S. Sharvananda, for the defendantsrespondents.
Gur. adv. vult.
October 6, 1954. Sansoni J.—
The plaintiff-appellant and the four defendants owned a land in commonuntil, by deed PI of 1941, they partitioned the land into four separatelots, the 1st and 2nd defendants who are husband and wife getting onelot at the eastern end. A lane was left along the southern boundaryof the 4 lots “ for our common use …. the whole of this (lane)belongs to us in equal shares ”, to quote the words of the deed. Thislane leads up to a separate land on the east which belonged and stillbelongs solely to the plaintiff. Admittedly the 1st defendant blockedthe lane at two points, one point being where the lane begins to skirthis lot on the south and the other point being at its eastern extremitywhere it touches the western boundary of the land belonging to theplaintiff alone on the east.
8ANSONT J.—Chsllanjt: Yonnan
06
The plaintiff has brought this action as a co-owner ot the land overwhich the lane runs claiming damages against the 1st and 2nd defendantsbecause they obstructed him in the use of the lane ; he also asked forthe removal of the obstruction. He claimed that he was entitled as aco-owner to use the land in order to reach his land on the east. The 1stand 2nd defendants filed a joint answer in which they denied that thelane was intended for use by the plaintiff to have access to his land onthe east, or that he ever used it for that purpose. Their position wasthat the lane was intended only to serve the 4 lots.
I do not think the validity of the plaintiff’s claim can be doubted.He is a co-owner of the lane and as such co-owner he is entitled to use itas a lane for the purpose of getting to his land on the east if by doing so hedoes not interfere with the substantial rights of the other co-owners.This is the reason underlying the decision of de Sarapayo J. in MarsalAppu v. Angohamy 1 where he followed the decision of Schneider J. inSimgho Appu v. Hendrick Appu 2. The plaintiff’s use of the lane toget to his land on the east is an incident of his co-ownership of the laneand it is no less justified than the use of the lane by the owners of the4 lots to reach their respective lots. It is not suggested that the use ofthe lane in the manner claimed by the plaintiff will interfere with the useof the lane by the other co-owners. The deed does not provide that thelane should be used only for the purpose of having access to the 4 lotslying to the north of it.
The learned Commissioner dismissed the plaintiff’s action because thelane was not declared in the deed to. be a public lane or one along whichthe plaintiff should have access to his land on the east. Both reasonsare unsound. The plaintiff is not claiming to use the lane as a memberof the public and he has no need to do so since he is a co-owner. Nordoes the deed restrict the use of the lane by the co-owners in any way.It is a very unsafe method of construing this deed to search for theparticular objects which the parties may have had in mind when theyreserved a portion of land as common property for use as a lane. Thedeed itself contains no restriction as regards the lands which the lanewas to serve and it would be adding to the terms of the deed if one wereto impose such restrictions now. The learned Commissioner has alsoreferred in his judgment to a servitude and a way of necessity but thereis no claim by the plaintiff on these grounds.
'~ 't
I therefore allow this appeal. The plaintiff-appellant is entitled tohave the obstructions on the lane removed- by the four defendants andhe is entitled to usfe the lane to have access-to his land on the east. The1st and 2nd defendants must pay the plaintiff-appellant damages asagreed at the trial until the obstructions are removed; they must alsopay him his costs both in this Court and in the lower Court.
Appeal allowed.
* {1922) 24 N. L. B. 1S7.
1 {1922) 4 C. L. Recorder 197.