037-SLLR-SLLR-2005-V-2-KULATUNGA-vs-RANAWEERA.pdf
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Kulatunga vs Ranaweera
197
KULATUNGAVSRANAWEERACOURT OF APPEALEKANAYAKE.J.,
RANJITH SILVA, J.
A. 893/94(F)
C. HORANA 4000/LJUNE 14, 2005
Declaration of a right of way – Partition Decree – Blocking of right/access -waiver and abandonment of right of user ? – Right of way granted by Deed -Could it be lost by non – user ? Issues framed – Pleadings recede to background ?- Perverse Judgment – When could the Appellate Court interfere ? – Raising noIssues in the appellate Court ? – Evidence Ordinance S 114
The plaintiff – Appellant sought a declaration of a right of way over Lot 5, whichwas provided as a right of access to Lots 2, 3 and 4 in a Partition Decree, theRespondent who was the owner of lots 3 and 4 blocked the Said right ofaccess to Lot 2 over lot 5 by erecting a fence across the road (Lot 5). TheDefendant – Respondent filed Answer denying the allegations and pleadedthat, the strip of land covered by Lot 5(a) was not used as a road – way by anyone as there was access to lot 2 from the public road, and the Appellant hadwaived or abandoned his right to use Lot 5 as his right of access. The TrialCourt dismissed the Plaintiffs action.
On appeal –
Held
The Appellant was not claiming any right or title derived or on thestrength of the Partition Decree, therefore in the absence of any spe-cific issue as to whether the Appellant was entitled to a rght of wayover Lot 5 by virtue of or based on the partition decree, the trial Judgecannot be faulted for not holding in favour of the Appellant.
‘Once issues are framed the case which the Court has to hear anddetermine become crystallised in the issues and the .pleadings re-cede to the background.’
Per de Silva J
“Servitude to be lost by abandonment, the abandonment must bedeliberate and intentional, the abandonment of a servitude destroysthe right not only when the abandonment is express but also when itis tacit. Further where something is conceded to the owner of theservient tenement which naturally and of necessity obstruct the use of
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the servitude there is tacit abandonment of the servitude provided theabandonment is deliberate and intentional and certainly not behindthe back of the person entitled to the servitude.”
A right of way granted by a Deed is not lost by mere non user.
The appellant had not raised appropriate relevant and pertinent is-sues, it is not fair at this stage for the Appellate Court to frame anissue and answer that issue on its own as the parties have not ad-dressed their minds specifically to that issue.
Appellate Court can and should interfere even on questions of factalthough those findings cannot be branded as “perverse” unless theissue is one of credibility of witnesses. When the issue is mainly onthe credibility of witness an appellate Court should not interfere un-less the findings are perverse and not in regard to findings on otherissues from the facts which are either proved or admitted.
Appeal from the Judgment of the District Court of Horana.
Cases referred to :
Hanafi vs Nallammah – 1998 1 Sri LR 73
Fernando vs Mendis – 14 NLR at 101
Inagamani vs Vinayagamoorthy – 24 NLR 438
Paramount Investments Ltd., vs Cader – 1986 Sri L. R. Vol. 2 at 309
Fradd vs Brown & Co. Ltd 20 NLR 282
Wickramasuriya vs Dedoleena – 1996 2 Sri LR 95
Appellant absent and unrepresented.
Rohan Sahabandu for respondent
Cur. Adv. vult.
July 12, 2005
W. L. RANJITH SILVA, J.On 12.07.2004 when this matter came up for argument before anotherdivision of this court the plaintiff Appellant (hereinafter referred to as theappellant) was absent and unrepresented. Mr. Sahabandu had appearedand concluded his oral submissions on behalf of the Defendant-Respondentand a date was granted for written submissions. The journal entry of thatdate is to the effect that as the Appellant failed to appear in court despiterepeated notice on the appellant, the court decided to dispose of the appealafter a consideration of the petition of appeal. On 30.09.2004 this mattercame up before another division of this Court and that Court referred thismatter to this division of the Court of Appeal. On a perusal: of the docket
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it appears that notice on the appellant and his Registered Attorney at Lawwere dispatched on several occasions on the orders of this court and thatnone of the notices so issued returned undelivered. Therefore this courtcan safely presume under Sec. 114 of the Evidence Ordinance that therelevant notices were not only dispatched but also were duly served on theappellant and his Registered Attorney.
On 18.02.2005 this matter was fixed for argument for the 14.06.2005when it came up for argument Mr. Sahabandu, counsel for the Respondentinformed court that he was prepared to abide by the written submissionalready filed on behalf of the respondent and that the matter could beresolved on the written submissions. But on a request made by this courtMr. Sahabandu made a brief outline of the case for the benefit ot this courtsince this case shuttled from one court to another in the past.
The factsThe Appellant instituted action bearing No. 400/L in the District Court ofHorana seeking – inter alia for a declaration of a right of way over lot 5morefully described in the second schedule to the plaint, for an order forthe removal of all obstructions thereon and for damages.
The plaintiff’s position was that one Richard Kulatunga became theowner of the land morefully described in schedule 1 to the plaint (lot 2 inplan No. 178) by virtue of the partition decree in P/5116 and that the saidKulatunga transferred the land to one Victor Alvis Kulatunga and the twoKulatunges aforesaid transferred the same to one Gunaratne Alvis Kulatungeby deed No. 13664 of 24.05.78 and that Alvis Kulatunga transferred 13perches of the said land to the appellant by deed No. 14529 of 13.09.1982.
It is common ground that by the final decree in P/5116 lot 5 was providedas a right of access to lot 2 aforesaid and to lots 3 and 4 of the said planNo. 178. The Appellant in his plaint alleged that the Respondent who wasthe owner of Lots 3 & 4 blocked the right of access to lot 2 over lot 5 byerecting a fence across the said road (lot 5) on or about 28.02.1986.
The Respondent filed answer denying the allegations levelled againsthim in the plaint and pleaded that from about 1953 the strip of land coveredby lot 5(a) was not used as a road way by any one as there was access tolot 2 from the public road. (Thannanwilla road). The Respondent furtheraverred that neither the appellant nor his predecessors in title ever usedthe road after the public road called “Thannanawilla” road aforesaid cameinto existence and that the Appellant waived or abandoned his right to uselot 5 as his right of access, and pleaded that he had prescribed to lot 5.
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When the matter was taken up for trial in the District Court four issueswere framed on behalf of the Appellant. They are as follows :
Did the plaintiff use lot 5(A) and lot 5(B) as access road to reachlot 2(A) ?
Did the defendant on or about 9 obstruct the road shown as lots5(A) & 5(B) ?
Did the defendant on or about 22.01.1989 obstruct the road shownas lots 5(A) & 5(B) ?
Is the plaintiff entitled to obtain an order against the defendant toremove all the obstruction in lots 5(A) & 5(B) ?
Is the Plaintiff entitled to claim damages from the defendant ?
After trial the Learned District Judge by its judgement dated 21.04.1994dismissed the Appellant’s action and the appellant being aggrieved by thesaid judgement preferred this appeal to this Court.
At a glance one could see that the appellant by his issues framed wasnot seeking to establish a servitude of right of way acquired by prescriptionor on a deed. He was not even seeking to establish the right of way shownas lot 5 in plan 178 granted by the partition decree in P/5116. Whateverthe admissions or the pleadings are a case is ultimately decided on theissues framed by the parties or by the court itself irrespective of thepleadings. It was held in Hanafi l/s. Nallamma by G. P. S. De Silva, C. J.that once issues are framed the case which the court has to hear anddetermine becomes crystallised in the issues and the pleadings recede tothe background. In the case in hand the first issue is whether the Appellantused lot 5(A) ; and lot 5(b) as a road access to reach lot 2(A). It is clearthat the Appellant was certainly not claiming any right or title derived or,on the strength, of the partition decree in case No. 5116/P. Therefore in theabsence of any specific issue as to whether the appellant was entitled toa right of way over lot 5(a) or lot 5(b) or both by virtue of, or based on thepartition decree in case No. 5116/P the Learned District Judge cannot befaulted for not holding in favour of the appellant on that issue as there wasnot sufficient evidence on that issue to prove that the Appellant used theparticular road for any length of time. On the other hand issue No. 1 doesnot speak of a date as to when the appellant commenced using the saidroad, or for how long he used that road. Since the Appellant was notrelying on title or a right she derived based on the partitioned decree referredto above the appellant could not in any event have succeeded in thisaction. On the other hand the Appellant failed to frame an issue on
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prescription either. Even if he did he failed to prove that he had prescribedto lots 5(A) and 5(B) as he was silent as to the date she started using theroad or when the disputes arose as to the said right of way.
THE LAWI shall now deal with some of the cases cited by the Respondent inorder to show that a right of way is lost by non user or abandonment. Thestatement of law made by the counsel for the respondent is good in regardto normal servitudes but not for servitudes granted by deeds. In FernandoVs. Mendid2) at 101 the well which was the subject matter in that actionwas filled up with the consent of both parties, and the court held that therewas an express abandonment. Inagamani Vs. Vinayagamurthy3) it waslaid down that for servitde to be lost by abandonment the abandonmentmust be deliberate and intentional. According to Voet the abandonment ofa servitude destroys that right not only when the abandonment is expressbut also when it is tacit. On the other hand there is also the propositionthat servitudes are lost by permitting or-allowing the servient tenementowner anything to be done which is repugnant to or inconsistent with theservitude of right of way to be built upon, or a wall to be constructed. across the road or a drain to be cut across the road. In other words wheresomething is conceded to the owner of the servient tenement which naturallyand of necessity obstruct the use of the servitude, there is tacitabandonment for the servitude provided the abandonment is deliberateand intentional and certainly not behind the back of the person entitled tothe servitude. In any case all the authorities cited by the counsel will notbe relevant to a situation where the servitude is created by way of a Deedof Conveyance as in the present case in view of the decision in ParamountInvestments Ltd. Vs. Cader{'] at 309. Althought this case was not citedbefore me, the judgement in this case lays down the principle very clearly.It was held in that case that a right of way granted by a deed is not lost bymere non-user. In this case too, the servitude was first recognised by thepartition decree and was later conveyed to the Appellant by a Deed ofTransfer. There is no evidence in this case to prove that the appellant orhis predecessors in title ever conceded their rights in respect of the saidservitude intentionally or deliberately.
Therefore I respectfully disagree with the submissions made by theRespondent that there had been a tacit or express abandonment by theappellant or her predecessor in title of the servitude of a right of way in
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respect of lots 5(A) and 5(b) (lot 5 in plan 178). But unfortunately for theAppellant there was no appropriate, relevant or pertinent. Issue framed onhis behalf. The only issue that has some relevance to this topic is issueNo. 5 based on prescription, raised by the Respondent and that too wasanswered in the negative.
It was also the contention of the counsel for the Respondent that in anyevent this court should not intervene in this matter as the judgement of thelearned District Judge, is not perverse. He has cited among other authoritiesFradd Vs. Brown & Co. Ltd.(5) What was held in that case was that whenthe issue is mainly on the credibility of witnesses an Appellate Courtshould not interfere unless the findings of the judge are perverse and not inregard to findings on other issues from the facts which are either proved oradmitted ? And in the last place what witnesses are to be believed ? It isonly in the last question any special sanctity attaches to the decision of acourt of first instance. On the first two questions no special sanctityattaches. By any special sanctity is meant the disinclination on the partof an appellate body to correct a judgment as being erroneous. (Vide,Wickramssooriya Vs. Dedoleena<6)-
Therefore it is seen that an Appellate Court can and should interfereeven on question of facts although those findings cannot be branded as“perverse.” unless the issue is one of credibility of witnesses. Even thoughI disagree with the learned counsel appearing for the respondent on certainviews expressed by him, which I have enumerated above l agree with himthat the Appellant failed to raise the appropriate issue at (he trial. I alsofind that it would not be fair at this stage for this court to frame an issueand answer that issue on its own as l find that the parties have not addressedtheir minds specifically to that issue.
For the aforesaid reasons I find that there is no merit in this appeal andthe same is hereby dismissed with costs fixed at Rs. 5,000 to be paid bythe Appellant to the respondent. The Registrar is directed to send therecord to the appropriate court for necessary action.
EKANAYAKE, J. -1 agree.
Appeal Dismissed.