MUNIDASA SILVA v. LASANTHA FERNANDO

036-SLLR-SLLR-2003-V-3-MUNIDASA-SILVA-v.-LASANTHA-FERNANDO.pdf


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MUNIDASA SILVAvLASANTHA FERNANDOCOURT OF APPEALDISSANAYAKE, J.
SOMAWANSA ,J.
A. 691/91 (F)
C. KALUTARA 3264/LFEBRUARY 17, 2002MAY 5, 2003
Prescription – Right of way – Servitude – Created by partition decree – Nonuser of the servitude – Is the servitude lost? Modes of extinction – Burden ofProof – Right attached to land –
The plaintiff – respondent instituted action for a declaration of title to lot “O” inplan P1, and a right of way to proceed to lot “O”. The defendant-appellant con-tended that the alleged right of way had not been in existence for over 10years, and that he and his predecessor in title have possessed the areaalleged as a right of way for over 10 years – claiming prescriptive rights.
The trial court held with the plaintiff.
On Appeal.
Held:
The fact that right of way existed and that the same has been demar-cated on a plan would necessarily mean that the right of way did existand the fact of non user alone will not be sufficient to lose a right of way.The right of way was left in common by a partition decree.
Where the servitude was created by the decree in a partition actiondemarcated in the final partition plan, and though there is no specificmention of the servitude in the Deed of Transfer by which title to lot “O"devolved on the plaintiff – respondent, yet the right of servitude passedto the transferee for it is a right attached to the land.
Under our law a person does not lose the right to any ownership ofimmovable property e.g. a land, servitude by mere non possession(non user).
Once devolution of title in respect of Lot “O” is admitted it follows that,the plaintiff – respondent became entitled to the servitude – right of way
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attached to lot “O" granted in a Partition Action. In the premises thereis no burden on the plaintiff – respondent to prove that he and his pre-decessors in title did in fact use the roadway, the burden is on thedefendant – appellant to prove that he had acquired prescriptive rightsto the strip of land containing the right of way.
APPEAL from the Judgment of the District Court of KalutaraCases referred to:
K. Rajentheram v K. Sivarajah – 66 NLR 324
Nagamani v Vinayagamoorthy – 24 NLR 438 at 439
Paramount Investments Ltd., v Cader- 1986 2 SRI LR 309
Chellappah Ariyaratnam and Another v Chelliah Subramaniam and fourothers – 79 NLR 121
R.K.S. Sureshchandra for defendant-appellantRohan Sahabandu for plaintiff-respondent.
Cur.adv.vull
October 3, 2003SOMAWANSA, J.
The plaintiff-respondent instituted the instant action in the 01District Court of Kalutara seeking a declaration of title to lot ‘O’ inplan No. 4005 dated 12.09.1902 prepared by B.M. Flamer Caldera,Licensed Surveyor marked P1 and morefully described in theschedule to the plaint, a right of way as depicted in the said planto proceed to the said lot ‘O’ from Alutgama-Welipanna Road, andto have the obstructions on the said roadway removed.
The plaintiff-respondent’s position was that he was the ownerof lot ‘O’ in the said plan marked P1, that there was a roadway fromlot ‘O’ to the Alutgama-Welipanna Road as depicted in the said 10plan, that the defendant-appellant is the owner of lot ‘J’ in the saidplan marked P1 which abut the roadway claimed by the plaintiff -respondent, that the defendant-appellant obstructed the said rightof way. The plaintiff-respondent sought an enjoining order prevent-ing the defendant-appellant from obstructing his right of way andwas granted the same.
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The position taken by the defendant-appellant was that theplaintiff-respondent and his predecessor in title had access fromAlutgama – Welipanne Road to lot ‘O’ through lot ‘H’ in the said planmarked P1, that the alleged roadway claimed by the plaintiff-respondent had not been in existence for over 10 years, that heand his predecessors in title have been possessing the areaalleged as a right of way for over 10 years and claimed prescriptive■ rights to the said strip of land. In the premises he prayed for a dis-missal of the plaintiff-respondent’s action and he be declared ashaving acquired prescriptive rights over the alleged roadway.
At the commencement of the trial, it was admitted by the par-ties that the plaintiff-respondent is the owner of lot ‘O’ and defen-dant-appellant is the owner of lots ‘J’ and ‘P’ depicted in plan No.4005. The parties went to trial on 7 issues. The plaintiff-respon-dent’s issues were based on the question whether lots 1, 2 and 3depicted in plan No. 1877 prepared by B.C.D. Fernando, LicensedSurveyor constitute the road reservation claimed by the plaintiff-respondent while the defendant-appellant’s issues were based onthe question whether he has prescribed to the area shown as aroadway on the said plan.
At the conclusion of the trial the learned District Judge by hisjudgment dated 15.10.91 held with the plaintiff-respondent. It isfrom the said judgment that the defendant-appellant has lodgedthis appeal.
At the hearing of this appeal, it was submitted by the counselfor the defendant-appellant that the evidence placed before Courtclearly showed that the roadway shown in plan No. 4004 markedP1 prepared in 1902 was no longer in existence at the time theplaintiff-respondent claimed the said roadway in 1984. He contend-ed that the fact that a right of way existed and the same has beendemarcated on a plan does not necessarily mean that it can beclaimed if it has been lost by non-user that in the present case theright of way over the portion of the land claimed as the roadway hadbeen lost by non-user for well over a period of 10 years. Thelearned District Judge has failed to consider this aspect of non-userand has thereby erred in law. However I am unable to agree withthis submission. The fact that a right of way existed and that thesame has been demarcated on a plan would necessarily mean that
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the right of way did exist and the fact of non user alone will not besufficient to lose a right of way. In the instant action it is admittedthat the right of way claimed by the plaintiff-respondent has beendemarcated and left in common as reservation for roads in finalpartition plan No. 4005. Hence, it is also admitted by parties thatthe reservation for roads as demarcated in that plan is a commonright of way for the plaintiff-respondent and the defendant-appellantas well as the other parties who were allotted shares by the finaldecree in partition action 2030. In the case of K. Rajentheram v K.SivarajahW the head note reads as follows:
“Where the co-owners of a land execute a deed of partitionallotting to themselves separate portions reserving, in com-mon ownership, an allotment which one of them is given theright to use as a path to proceed from the separate portion tothe public road, the others are not entitled to obstruct the freeuse of the right of way by erecting a gate at the entrance to thepathway. In such a case, the interest of the person who hasthe right to use the reserved allotment as a pathway is one ofco-ownership and not a servitude. He is entitled to use.it inaccordance with the object for which it is intended to beused.”
In the case of Nagamani v Vinayagamoorthyi2> Perde Sampayo, J. •
“There is no doubt about the right created by the deed, and itcan only be lost by some means known to the law, such as anadverse right created in favour of a servient tenant against thedominant tenant, by means, for instance, the prescriptive pos-session".
It appears to me the same principle would apply to the instantaction where the servitude was created by the decree in a partitionaction demarcated in the final partition plan marked P1 and thoughthere is no specific mention of the servitude in the deed of transferby which title to lot ‘O’ devolved on the plaintiff-respondent markedP1 yet the right of servitude passed to the transferee for it is a rightattached to the land. Proposition to this line of reasoning is to befound in the case of Paramount Investment Ltd. v Cader(3) the headnote in the case reads as follows:
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“A servitude of right of way can be lost by abandonmentexpress or tacit. A servitude is lost by express abandonmentwhen the dominant owner clearly and intentionally abandonsit. Tacit abandonment takes place where the servient owner ispermitted to do something which necessarily obstructs theexercise of the servitude and makes the servitude inoperative.Where, as in the instant case, express abandonment basedon non-user owing to a wall built by the dominant owner’s pre-
decessor-in-title is what is relied on, the position is that underour law a servitude of right of way created by notarial grantcannot be lost by mere non-user.”
In that case too the servitude of right of way was created bynotarial agreement and in the instant action it was by a scheme offinal partition confirmed by Court as shown in partition plan No.4005 in case No. 2030/P. In the case of Paramount InvestmentsLtd..v Cadet2) (supra) Seneviratne, J., considered most of theauthorities on Roman Dutch Law and the decisions dealing withthis point. Justice Seneviratne in his judgment at page 321 madethe observations:
“I will consider whether the concept of non-user is applicablein our law. According to the Roman-Dutch Law Jurists“Praedial servitudes are classed as immovable property”.Nathan Common Law of South Africa – (Vol.l 2nd Ed. Page343, Para 432). “A real servitude is a fragment of the owner-ship of an immovable ”. Introduction to Roman-Dutch
Law – R.W. Lee (5th Ed. Chap. 6 Page 164). Our Statute Law- Prescription Ordinance (C.L.E. Vol. Ill Chap. 68) section 2defines – “immovable property” as follows:
“….shall be taken to include all shares and interests in such
property, and all rights, easements and servitudes thereuntobelonging or appertaining”.
In the authoritative text Introduction to Roman Dutch Law -R.W. Lee (5th Ed. Chap 3 Page 130) – Lee deals with theacquisition and extinction on ownership in corporeal things. Atpage 144, Lee has summed up how ownership is lost in cor-poreal things as follows:
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“The modes of extinction of ownership are:-
Dereliction or abandonment of possession.
Accession (when it effects a transfer of ownership).
Tradition.
Prescription.
Expropriation by competent authority e.g. when land istaken for some public purpose.
Forfeiture for crime.”
Thus, it will be seen that non-user is not set out as a mode ofextinction of ownership of any corporeal thing – immovableproperty. It was submitted by the learned Queen’s Counsel forthe plaintiff-appellant-petitioner that any loss of a right to apraedial servitude must be in accordance with the law bywhich one loses one’s rights to immovable property. Under ourLaw title to immovable property cannot be lost by non-user(non possession). It is clear that one way of acquiring title toproperty is by prescription in terms of Section 3 of thePrescription Ordinance.".
It was held in that case that under our Law a person does notlose the right to any ownership of immovable property eg. a land, aservitude by mere non possession (non-user).
In the light of the above authorities, cited by me, it appears thatthe plaintiff-respondent who became the owner of lot ‘O' would beentitled to lot ‘6’ as well as the right to use the roadway which wasin common for his predecessor’s in title as per the final scheme ofpartition confirmed by Court in case No. 2030/P. In such circum-stances in considering whether there has been an abandonmentor non-user of the servitude – right of way by plaintiff -respondentand his predecessors in title different consideration has to apply, asdistinct from servitude created by prescription or by verbal agree-ment. Once devolution of title in respect of lot ‘O’ is admitted it fol-lows that the plaintiff-respondent became entitled to the servitude -right of way attached to lot ‘O’ granted in partition action in case No.2030/P. In the premises there is no burden on the plaintiff-respon-
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dent to prove that he and his predecessors in title did in fact usethe roadway.
At this point, it would be pertinent to refer to the submissionsmade by counsel for the defendant-appellant as to the burden ofproof. It is his submission that when a right of way is denied to aperson claiming same on the basis of non-user the burden is onthe claimant to the right of way over the servient land to establishthat it had been used prior to his acquiring rights over the dominantland. He goes on to say that in the instant case the plaintiff-respon-dent had become the owner of the dominant land – lot 'O’ only in 1701984 and has complained that he had been obstructed from usingthe right of way through the servient land from November 1984 andapart from the evidence of the plaintiff-respondent no other evi-dence was placed by him to establish that the right still existed atthe time he purchased lot “O’. Therefore he submits that the plain-tiff-respondent has failed to discharge the burden on him to estab-lish the right of way. I would say this argument cannot hold waterfor the simple reason that at the time the plaintiff-respondentbecame the owner of lot ‘O’ in 1984 right of a servitude was in exis-tence as per the final partition scheme in case No. 2030/P. The isoplaintiff-respondent became entitled to the same by virtue of devo-lution of title. In the case of Chellappah Ariyaratnam and Another vChelliah Subramaniam and Four Others (4> the facts were:
“ The plaintiffs-appellants instituted an action for a declarationthat they were entitled to certain servitudes. The defendants -respondents contended that since 1942 when the plaintiffs’ pre-decessor in title who was also the owner of the adjacent landhad bought this land he abandoned his rights in the land in suitas these rights were also available in the adjacent land. Thelearned District Judge while holding that the appellants were 190entitled to the said servitudes on the title they pleaded, dis-missed the action on the basis that the plaintiffs-appellants andtheir predecessor in title had since 1942 tacitly abandoned theexercise of these rights or had lost them by non-user.”
In that case it was the position of the defendant that althoughdeed P1 had made provision for the rights claimed by the plaintiffssuch rights had not been demarcated on the ground nor were thoserights exercised by the parties or their successors in title.
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It was held:
“That the learned District Judge had erred when he came tothe conclusion that these rights were lost by the plaintiffs -appellants and their immediate predecessor in title by reasonof waiver. This was not a case of express waiver nor did theconduct of the respondents during the relevant time show thatthey themselves had inferred a waiver or surrender of thoserights on the part of the appellants.”
In that case Wanasundera, J., expressed'the view that in thisinstance those parties were co-owners of the pathway and therights of the parties should have been considered on that basis,that is as to whether there had been adverse and prescriptive pos-session of the pathway by the respondents and referred to the deci-sion in K.A. Rajentheran v SivarajahV) (supra). In the light of theabove reasoning, I am unable to agree with the submission madeby counsel for the defendant-appellant that the burden of proof ofuser of the servitude is with the plaintiff-respondent. I would holdthat as the plaintiff-respondent has established that he was entitledto the servitude, the right of way which devolved on him with thedevolution of title to lot ‘O' the burden is on the defendant-appellantto prove that he had acquired prescriptive rights to the strip of landcontaining the right of way.
Another matter raised by the counsel for the defendant-appel-lant is that in order to establish a servitude, it is also necessary toshow that a clear defined path has been used by the person claim-ing the servitude. That a Sureveyor's contention that it was possi-ble to go on foot through shrubs and trees on a land does notestablish that there was a roadway. That in the instant case therewas clear evidence that at the entrance to the roadway claimedthere was an embankment about 2 1/2 feet high through which awheel barrow or a cycle could not be taken and further there wasevidence of a coconut tree 75 years old some shrubs and a fewsteps leading to a well on the road claimed, that these clearly indi-cate that there was no clearly defined path as claimed by the plain-tiff-respondent. As for the pathway, it is clearly shown in the parti-tion plan No. 4005. In order to ascertain the correctness of the sub-mission it becomes necessary to examine the evidence led in thiscase.
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For the plaintiff-respondent he himself and B.C.D. Fernando,Licensed Surveyor gave evidence leading in evidence P1 to P4.While for the defendant-appellant he and Senarath, LicensedSurveyor gave evidence leading in evidence V1 to V14. It tran- 240spired in the evidence of the plaintiff-respondent that he purchasedlot “O” in plan marked P1 to construct a house and had been usingthis road access when in November 1984 the defendant-appellantobstructed his access by planting trees and dumping stones, thatas the Town Council acquired a small portion to widen the drainthat ran along the roadway, access was now reduced to about 6feet, that the coconut tree did not obstruct the use of the roadwayand was on the boundary near the well, that he was working in ahardware shop and used to take his goods in a wheel barrow alongthis road to his house and that after the obstruction he was unable 250to do so. It was suggested to him that he used lot ‘H’ which adjoinslot ‘J’ to get to the public road this was denied by the plaintiff-respondent and went on to say that only access he had wasthrough the roadway shown in plan marked P1.
It is to be noted that though the defendant-appellant tried tomake out that the plaintiff-respondent used to get to the main roadthrough lot ‘H’ the defendant-appellant failed to adduce evidence toestablish this fact other than ipse dixit of the defendant-appellant. Itwas also suggested to the plaintiff-respondent that as there was aconcrete slab at the entrance to the road from the main road which 260blocked the entrance the roadway claimed cannot be used. Thiswas also denied by the plaintiff-respondent who stated that one canjust step over the slab and use the roadway and even a wheel bar-row or a bicycle could be taken over it. He was also questioned asto why he did not claim compensation from State for acquisition ofportion of the roadway for road widening to which his answer wasthat at that time he was not the owner. As regards non user by hispredecessor in title the plaintiff-respondent’s position was that theywere abroad. Surveyor Fernando who was called by the plaintiff-respondent specifically stated that the plaintiff-respondent has no 270other means of access to his land other than through the roadwayshown in plan marked P1. Plan No. 4005 marked P1 was producedthrough him where all the allotted lots including the road reserva-tions are shown.
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On a perusal of this plan it is apparent that the road reserva-tions is the only means of access from lot ‘O’ to Aluthgama-Welipanna Road. He went on to say that due to the road widening0.15 Perches has been taken from the north of the road access andalso a further 0.16 Perches has been taken over to construct a con-crete drain and that the balance area now in existence has been 280shown as lot 03. He also went on to say that he found certain treesplanted on the roadway ages varying between 8-10 months and ayear old coconut tree. It is to be noted that obstruction came inNovember 1984 and the survey was done in June 1985 about 8months thereafter. Surveyor also says that .there were evident teljtale marks that the road had been used. Plan No. 1877 dated06.10.1985 prepared by him was marked P2 while his report wasmarked P3.
Surveyor Seneviratne who was called by the defendant-appellant had gone to the corpus 4 years after the alleged obstruc- 290tion and prepared his plan No. 5200 marked V3. His report ismarked V4. According to him there were trees aged 8-10 years onthe roadway claimed. His evidence was that the road as it is can-not be used, however he accepted the position that one can strideor hop over the slab at the entrance to the main road. The positiontaken by the defendant-appellant in his answer was that he is theowner of lots ‘J’ and ‘P’ that he had acquired prescriptive title to theroad reservation to the east of 'J’. However in his evidence he dis-claimed any rights to the said road reservation. At pages 134 and135 of the brief under cross examination he states:300

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These answers as submitted by the counsel for the plaintiff-respondent clearly cuts across the defendant-appellant’s case. It is 310also to be noted that all the deeds marked by the defendant-appel-lant deal with amalgamated lots ‘J’ and ‘P’ describing the easternboundary as Totagewatta alias Water Course which in effect wouldinclude the road reservation. However these deeds will not conveytitle to the strip of land reserved in common as reservation forroads.
It is also submitted by counsel for the defendant-appellantthat the learned District Judge failed to consider the fact that as theresult of the widening of the main road a portion of the roadwayshown in plan No. 4005 marked P1 had been acquired and that 320compensation has been paid only to the defendant-appellant whichis borne out by the gazette notification marked V1. In fact the plain-tiff-respondent was questioned on this point by the counsel for thedefendant-appellant and I find that the plaintiff-respondent hasgiven a reasonable explanation in that he says that at that time hewas not the owner and that his predecessors in title were abroad.
It appears to me that the learned District Judge has evaluatedand analysed the evidence placed before him and has come to acorrect finding on facts. In the circumstances, I see no reason tointerfere with his judgment. Accordingly the appeal of the defendant 330-appellant will stand dismissed with costs fixed at Rs. 5000/.
DISSANAYAKE, J. – I agreeAppeal dismissed.