131-NLR-NLR-V-24-NAGAMANI-v.-VINAYAGAMOORTHY-et-al.pdf
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Preaent: De Sampayo J.
NAGAMANI v. VINAYAGAMOORTHY et al.
21—C. R. Batticaloa, 2,905.
Servitude—Not using the path indicated—Abandonment.
'Far a servitude to be lost by abandonment, the abandonmentmust be deliberate and intentional.
The facts appear from the judgment.
SchoJcman (with him Bartholomeuaz), for plaintiff,' appellant,—The servitude was created by the original owner of the entire land,Eliyatamby, when in 1907 he gifted lot B to second defendant.Though there is no specific mention of the servitude in thetransfer by second defendant to plaintiff in 1912* yet the rightof servitude passed to the transferee, for it is a right attaching tothe land Suppiah v. Porihambalam.*■ The disappearance of the“ lane ” referred to in the deed creating the servitude does notextinguish the right. The servitude created is clearly a right ofway over the land to the south of lot B, and though the particulartrack indicated may not have been used and has disappeared, it isadmitted that plaintiff did cross defendants’ land to the south by ashorter route. This he could have done only by virtue of hisright of way, and hence no question pi prescription can arise.
Navaratnam, for defendants,respondents.—Althoughthe
earliest deed relating to the land in question purports to createa right of way over the adjoining block, yet the absence of anyreference to the said sight in the subsequent deeds, and the factthat there is no evidence at all that the particular track was everused, lead one to the conclusion that. no right of way ever cameinto existence. The admission that the appellant had access tothe main road along a shorter route through another land supportsthe contention that the alleged right of way was lost by abandon-ment. Counsel cited 14 N. L. R. 101.
March 16, 1928. De Sampayo J.—
This is a dispute with regard to a right of way which the plaintiffclaimc over the defendants* land which adjoins his own. It. appearsthat one Eliyatamby was the owner at one time of the entire blockof land shown in the survey plan narked B and filed of record, and
> {1911) 14 N. L. B. 229.
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it would seem that Eliyatamby alienated at various times variousportions of this land to other persons. In 1807 he gifted theportion marked B to the second defendant. In that deed hecreates a right of way in connection with lot B over the adjoiningportion of the land, as the deed puts it, ‘ ‘with the right of passingand repassing through the lane allowed on the southern side of thisand eastern side of the southern share and on the southern side.”That language looks very unintelligible, but it is quite plain whenread in connection with the plan. The deed means that the rightof way was given to- the second defendant along the southernboundary of B, then along the eastern boundary of the adjoiningland, then again the southern boundary of that adjoining land.The route is fairly indicated I think "on the plan by dotted lines.In 1912 the second defendant sold lot B to the plaintiff, but thereis no specific assignment of the right of way contained in that deedof gift. The second defendant is the wife of the first defendant,and it would seem that in the year 1918 they became owners ofthe lots C and D, over'which the right of way was created by Eliya-tamby. The plaintiff having been obstructed by .the defendantsblocking the route mentioned at a certain point has brought thisaction for a declaration of his right to the use of the right of way.I think the parties have rather misled themselves as to the meaningof the right of wav. The case appears to have been made to turnupon the question whether there was a lane across the defendants'lots C and D. No doubt the original deed in favour of the seconddefendant did speak of a right of passing and repassing along tileline indicated, but when righ.tly interpreted that means that theright of way along the route indicated was allowed to seconddefendant. It appears now there is no beaten track which mightbe said to constitute a lane, and the Commissioner, on that ground,has held that the plaintiff cannot exercise a right of way, as thereis no lane, and has dismissed the plaintiff's action. There is nodoubt about the right created by the deed, and it can only be lostby some means known to the law, such as an adverse right createdin favour of a servient tenant against the dominant .tenant, bymeans, for instance, of prescriptive possession. There is reallyno such possibility in the present case, and I think it cannot beheld that the plaintiff lost the right of way by adverse prescriptivepossession on the part of the defendants. Mr. Navaratnam,however, on behalf of the defendants, has cited to me the case ofFernando v. Mendis,1 which held that under .the Koman-Dutch lawa servitude may be lost by abandonment, whether by expressabandonment or implied abandonment. It is not necessary forme to dissent from that view, or to discuss the law as to abandonment.It is very clear that the abandonment must be deliberate andintentional. Illustrations of that, kind of- abandonment are
1 0911) 14 N. L. R. 101.
IMS.
Db SamfavoJ.
Nagtmumiv. Vinaua-gamooruty
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1988. mentioned in the very judgment oited, bat I think' .this oase cannotDiSaxpayo ^ brought under that principle.. There is evidence, not only oiJ. the plaintiff, but of the witnesses, that the plaintiff after his purchasefrom the second defendant did pass over the lots C and D nowa rSaya. belonging to the defendants. The plaintiff says he did so in the9amoort"lV exercise of the rights created by the deed. The defendants couldnot quite meet this evidence, but alleged that the plaintiff passedover their land just as they passed over his land. Probably thedefendants meant that plaintiff did not pass exactly over theroute indicated in the deed, but in the most convenient way overtheir own land. Any way, this admission negatives the idea ofabandonment. If the route indicated by Eliyatamby has notbeen observed, and there is necessity to define and fix it, it isopen to the Court in this very case, by a proper survey and ascer-tainment of the proper way, to define and fix it. Probably it isa convenient way of preventing future disputes, but I think theCommissioner was wrong in dismissing the plaintiff's case on themere ground that there is no lane across the defendants’ land atthe present time.
The judgment appealed from is therefore set aside, and theplaintiff is declared entitled to a right of way across the defendants'land marked C and D in the plan along the way indicated in Eliya-tamby’s deed.
If there is any uncertainty about that way, the Commissionerwill take steps to define it by reference to a survey in the presenceof all the parties.
The plaintiff is entitled to the costs of the Court of Bequests andof this appeal.
Set aside.