074-NLR-NLR-V-66-K.-RAJENTHERAM-Appellant-and-K.-SIVARAJAH-Respondent.pdf
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TAMBIAH, J.—Rajentheram v. Sivarajcth
. 1963Present: Tambiah, J.
K.RAJENTHERAM, Appellant, and K. SIVARAJAH, RespondentS. G. 23/62-—G. R. Trincomalee, 3045
Co-owners—Amicable partition—Reservation of an allotment to be in commonownership—Agreement that it should be used by one of the allottees as a path—Subsequent obstruction—Illegality.
Where the co-owners of a land execute a deed of partition allotting tothemselves separate portions but reserving, in common ownership, an allotmentwhich one of them is given the right to use as a path to proceed from hisseparate portion to the public road, the others are’ not entitled to obstruct thefree use of the.right of way by erecting a gate at the entrance to the pathway.In such a case, the interest of the person who has the right to use the reservedallotment as a pathway is one of co-ownership and not a servitude.. He isentitled to use it in accordance with the object for which it is intendedto be used. •’
Appeal from a judgment of the Court of Requests, Trincomalee.
G. Ranganathan, for Plaintiff-Appellant.
N.Nadarasa, with K. Kanthasamy, for Defendant-Respondent.
Gur. adv. vult.
August 19, 1963. Tambiah, J.—
The plaintiff and the defendant, by deed No. 592 of 13.7.48, markedD4, became co-owners of the land depicted as lots 1 to 3 in Plan No. T52A,dated 4th M.y 1951, and marked as Pi.
. By deed No. 1701 of 12.5.51, marked P2; they partitioned a part ofthe land. By this deed, lot 1 in the said plan was allotted to the plaintiffand lot 2 to the defendant. The parties expressly agreed that theplaintiff was to have a right of way along lot 3 in the said plan and also'the right to go and return from the well in lot 2 in the said plan. Afterexecution of deed P2, the defendant became the sole owner of lot 2 andthe plaintiff sole owner of lot 1 and by special agreement, the plaintiff was. given the right to use lot 3 as a path to proceed from lot 1 to the publicroad which is on the south of lot 2. This appears to be the intention ofthe co-owners, who had divided a part of the land among themselves andleft lot 3 in common ownership. The learned Commissioner of Requests,having rightly come to the conclusion that the plaintiff and defendantwere co-owners of lot 3 with an express agreement that lot 3 should beused as right of way by the plaintiff, has contradicted his own findinglater by a process of reasoning which is not tenable. He later finds thatdefendant is the sole owner of lot 3 and urges three reasons for thisfinding.*
TAMBIAH, J.—Rajentheram v. Sivarajah
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He states that the north eastern boundary of the Land of the defendantis described as land belonging to Rajaperumal and therefore he statesthat lot; 3 is the land-of the defendant.
The intention of the parties must be gathered by the interpretation ofthe deed P2. It is clear that in the deed P2 lot 3 has been left incommon ownership. There is no operative part of the deed P2 whiohspecifically mentions, lot 3 as the property of the defendant. Only theownership in lot 2 has been transferred to the defendant. In thesecircumstances the north eastern boundary of the defendant’s land is anerroneous description and the maxim jalsa demon*tratio non nocel applies.
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The second reason he gives is equally untenable. He states that as theright of way is only given to the plaintiff, who is the owner of lot 1, andas no right of way had been given to the defendant, lot 3 is defendant’sproperty. The defendant has road frontage on the south of lot 2 andtherefore does not require right of way over lot 3. It is only the plaintiffwho need have the right of way over lot 3 to proceed from lot 1 to thepublic road on the south. Therefore there was no necessity to mentionin the deed any right of way to the defendant over lot 3.
Thirdly, the learned Commissioner adds the extents of lots 2 and 3together and states that the aggregate extent of lots 2 and 3 is less thanthe extent of lot 1 and, therefore, the parties must have intended thatlot 3 should be allotted to the defendant. The learned Commissionerhas however failed to note that the defendant was getting the roadfrontage along the whole southern portion of lot 2 and therefore wasgetting a more valuable land than lot 1 and therefore more extent mighthave been given to the plaintiff in such a division.
■ For these reasons the learned Judge’s finding that the defendant is thesole owner of lot 3 is untenable. Having erroneously misdirected himselfin holding that the defendant is the sole owner of lot 3, the learned judgehas discussed at length a series of cases dealing with servitudes whichhave no application to the facts of this case. (See Jayasekera Hamine v.Agida Hamine 1; Jayatilleke v. Amarasinghe 2; M. Gornelis Sinyho v.V. P. S. Per era?; Harper v. W eerawickrema4.) Some of these casesestablish the principle that an owner of a property subject to a servitudeof right of way could in certain circumstances have a gate or stile at theentrance to a right of way so long as such an act does not reasonablyinterfere with the reasonable user of the servitude of right of way by theowner of the servitude.
The facts of the present case fall within the ambit of the ruling inMuthaliph v. Mansoor B, which has been followed in later cases. {SeePerera v. Podisingho 6 and Agnes Perera v. Edward Perera7.)
1 (1944) 46 N. L. R. 28.4 (1956) 58 N. L. R. 270.
(1957) 61 N. L. R. 193.5 (1937) 39 N. L. R. 316.
* '(1960) 63 N. L. R. 48.6 (1946) 47 N. L. R. 347.
7 (1954) 56 N. L. R. 24J.
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TAMBIAH, J.—Rajentheram v. Sivarajah
'' In MuthalipWs case the co-owners allotted to themselves separateportions of the co-owned land and left a narrow passage, marked in pinkin the plan produced in that case, as a right of way to be used by theco-owners. One of the co-owners built on this passage and anotherco-owner brought an action to restrain him from erecting buildings on thispassage. It was held that this pink portion which was meant as apassage was still in the co-owDeiship of all the co-owners and since theco-owners have agreed that this should be put to a particular us'e, namelyas a passage, another co-owner could not put it to any other use. In thatcase it was also laid down that a co-owner cannot erect a building orstructure without the previous consent of the other co-owner, but thisrule is subject to the important exception created by a long line of casesin Ceylon, which lay down the proposition that a co-owner can only putto use a co-owned property for the specific use to which it was intendedwithout the consent of the other co-owners.
Applying this principle to the instant case, lot 3 is still in the commonownership of the plaintiff and the defendant, and as it had been expresslyagreed the plaintiff should have the right of way along lot 3, it is notpossible for the defendant to put lot 3 to some other use or to obstructthe plaintiff in the exercise of his right of way over lot 3. The defendantcontended that as there was a building in lot 2 he could not erect a fenceto the east of lot 2 and in order to secure his property he should have afence on the east of lot 3 and also a gate at the southern end of lot 3. Iam afraid this is a lame excuse. The defendant had tried to obstruot theplaintiff by planting some trees on lot 3 and in an earlier case hewas ordered by Court to remove them. I am of the view that this is thesecond attempt on his part to obstruct the plaintiff in the use of lot 3.A gate at the southern end of lot 3, with the restrictions placed by thelearned judge, would be a serious fetter on the right of use of lot 3 grantedto the plaintiff. No advantage accrues to the defendant by putting up agate at lot 3. The defendant attempted to show that there was a gateearlier at the southern end of lot 3. The learned Judge has chosen todisbelieve the defendant and I see no reason to differ from this finding.
Each joint owner is entitled to the reasonable use of the property,in accordance with the object for which the property is intended to beused. One of them is not entitled, however, to appropriate any portionof the property to himself (See Sauerman and another v. Schultz1).Therefore the defendant is not justified in putting up a gate at thesouthern end of lot 3 and obstruct the free use of the right of wayspecially granted to the plaintiff by deed P2.
For these reasons I set aside the judgment and decree of the learnedCommissioner and enter judgment in favour of the plaintiff appellant asprayed for. The defendant is ordered to demolish the gate at thesouthern end of lot 3. The defendant will pay the plaintiff costs incurredin the lower Court as well as the costs of appeal.
Appeal allowed.
1 (1950) S. A. L. R. 455—Vol. IV.