107-NLR-NLR-V-59-MAHESWARY-and-another-Appellants-and-T.-PONNUDURAI-Respondent.pdf
49S
RIaheswary v. Ponnudurai
1957
Present':Sansoni, J.
-MAHESWARY and another, Appellants, and T. POXNUDURAI,
■ •Respondent
• ' 'S. C. 22S—C. R. Point Pedro, 1,211
Ttiyhl of tvay—Pracdial servitude—Transfer of the praediinn—Effect on the s eiriti.de
-.-A- When a right of way becomes attached to a land by prescriptive user and• .-that land is transferred, the servitude itself passes even though it is not specially. mentioned in the deed of transfer..-■ ■
A PPEAL from a judgment of the Court of Requests, Point Peclro.
N. K.Jfhoiisy,-Q.C., with T. K. Curtis, for the defend ants-appellants.-C?RangqnalTian, with P. Nagulesicaram, for the plain tiff-respondent:
Cur. adv. vult.
S.AXSOXI, J.—Jlahesicctrg t Ponnudurai
49'J
December 10, 19o/. S.axsoxt, J.—
The disjnjte in tin’s action concerns a lane. To the east of tin’s lanelies a land belonging to the plaintiff, to the west and north of it are landsbelonging to the two defendants. The plaintiff’s land is separated fromthe public road by a land belonging to one Thamotharam, and theplaintiff’s case is that access to the road lies along this lane.
The plaintiff claims that he and his predecessors in title used that laneto go to and from his land for over 10 years and thereby acquired aprescriptive right to use the lane as appurtenant to that land. In 1952access to the lane from the public road was blocked by the defendants,and this action was brought in consequence.
The defendants denied that the plaintiff had any right to use the lane.They claimed the lane as part of a larger land of which their lots to theWest and Xorth of the lane formed a part- They pleaded that the laneexisted solely for their use as a means of approach from the public roadto their lots.
The learned Commissioner held that the lane has existed as a lane forover CO years. This conclusion is inevitable in view of the deeds producedby the defendants themselves. From 1SS0 onwards the eastern boundaryof one of the defendants’ lands has been consistently described as a lane,and the other land has been described as bounded on the south by a lane.The plaintiff’s deeds describe his land as bounded on tire west by the lane.But there is a further conclusion which may also be reached from thedescription in the deeds, and it is that this lane for the last CO yearsor more lias not been a part of either the plaintiff’s or the defendants’lands, for where the boundary of a land is a lane, that lane cannot formpart of the land. Indeed this is how the father (and predecessor iri title)of the present defendants also regarded this lane. In 1941 an action wasbrought for the partition of the larger land of which the defendants’lands formed part. The father of the defendants, and the first defendantherself who was also a party to that action, asked that the lane in questionshould be excluded from the scope of the act ion as it was a common lane.They would not have made tin’s request if the land over whic-h the laneran was part of the land to be partitioned.-
There is no evidence as to how or when this lane came into existence.-;The plaintiff’s witness Kathirgamar who is 74 years old has stated that .the lane was in use ever since he could remember, and that it was usedby the owners of the lands adjoining it. The learned Commissionerwas entirely justified in holding that the plaintiff .and. his predecessorsin title used this lane as a means of approach'to their land. ’. The.'pee’dfor using it may not have been so urgent when the plaintiff’s land'arid*tholand 13'ing to tho south of it belonged to one carrier, because the publicroad would then have been the southern boundary of the^'entird land.But in 1916 the southern portion adjoining the public road was’separatedoff and sold, and it now belongs to Tharuotharam. From 1916^ therefore,access to the public road from the plaintiff’s land was only possible either
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SAXSOXT, J.—JMahesicary v. Ponnudurai
along tins lane or over the land lying to the east of the plaintiff s land.It was suggested for the defendants that the latter was in fact the modob3' which the plaintiff and his predecessors in title had access to thepublic road, but the learned Commissioner has rejected this suggestion ;
I am not surprised that he did so, seeing that the defendants’ witnessMurugesu, who was apparently called to'support this suggestion, failedto support the defendants on this point.
Mr. Chohsy for the defcndants-appcllants also submitted as a matterof law that the deed upon which the plaintiff purchased liis land has notin terms conveyed to the plaintiff the right to use this lane. He submittedthat as there was no mention of servitudes or appurtenances in theplaintiff’s deed, the servitude in dispute did not pass to the plaintiff.Now the learned Commissioner lias correctly held that the plaintiffand his predecessors in title used this lane to have access to their land andacquired a prescriptive right so to use it. It follows that a right of waybecame attached to the plaintiff’s land by such user. When the landwas transferred to the plaintiff, the right of way over this lane also passedto the plaintiff, and I hold that there was no necessity for particularmention to be made of this servitude. In Svppiah v. Pcnncnnpalam 1JWood Renton J. held that when a right of way became attached ^to aland and that land was transferred, the transferee was entitled to asserthis right, as the owner of the dominant tenement, against the ownerof the servient tenement even though the right of way was not specificallytransferred. I would follow this decision which is supported by manyauthorities to which m3- attention lias been drawn.'
Voct S.l.G. sa3-s " The imposition of real servitudes moreover burdensevery successor, whether universal or particular, to the servient tenement,and contrariwise benefits those who succeed to the dominant tenement-,the tenements, that is to sa3‘, passing along with their burden ”. Thereis also the following statement in The South African- Law of Properly,Family relations and Succession bv Lee and Honorc (19-34) page 24, Thebenefit to and the burden of a servitude are inseparable from the land towhich the3' are attached ; they pass with the land to every succeedingowner. The right to the servitude cannot be separated even temporarily' from the right to the laud ”. In Hall and Kellaway on Servitudes atpage 2 we are told that " praedial servitudes are portions of immovabletilings and as such are themselves immovable ”. It follows that whenthe praedium of which the servitude forms a part is transferred, theservitude itself passes even though it is not special^- mentioned in thedeed of transfer.-
It is not necessary to consider the position of a personal servitudesuch as the right of wa3' which was granted in the case of Wijcycsckcra v.Vaithianafhan '2,for such a servitude does not become an accessor}'of the dominant ‘tenement and therefore docs not pass with a transferof the dominant tenement. In the present case wc are concerned with a „right of way acquired b- prescription for the benefit of the plaintiff’s.
1 (1011) 11 N- L. It. 229.
(J03S) dO X. h. J.'. 3JS.
Dharmadasa v. Gunaicathy_. ■' 501
land : such a servitude is real, and on the authorities to which I ha’-oreferred it seems clear that upon a transfer of the dominant tenement theservitude vests in the transferee.- .-.••
Mr. Choksy also referred me to the case of Sellalhurai v. Chelliiih l,where it was held that a transfer of the dominant tenement “ with theappurtenances” passes a real servitude. It does not follow from this,decision that if the words “ with the appurtenances ’* are omitted fromthe deed of transfer a real servitude which attached to the land does notpass.-‘-
I dismiss this appeal with costs.•*1 ' .
Appeal dismissed.