012-NLR-NLR-V-11-RAJAKARIAR-v.-THE-PROVINCIAL-ROAD-COMMITTEE-OF-JAFFNA.pdf
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Present; Mr. Justice Middleton.
RAJAKARIAR v. THE PROVINCIAL ROADCOMMITTEE OF JAFFNA.
C. B., Jaffna, 4,939 A.
Public thoroughfare—Encroachment—Long possession—Prescription—Presumption—Evidence Ordinance, s. 114—Ordinance No. 10 of 1861, ss. 86and 94.
Middleton J.—Although it may not be possible for a privateowner to prescribe from the public highway by virtne – of length ofpossession, yet long and uninterrupted possession, ut dominos, ofland subsequently claimed to form part of the public highway,raises a strong presumption that the land in question is the privateproperty of the possessor.
A
PPEAL by the defendant from a judgment of the Commissionerof Requests.
The Hon. Mr. Eanagasabai, for the defendant, appellant.
Sampayo, K.C. (with him Bawa), for the plaintiff, respondent.
Our. adv. volt.
1907.
August 30.
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1907.
August 30.
August 30, 1907. Middleton J.—•
In the first place, it was contended on this appeal that the casewas one beyond the jurisdiction of the Court of Bequests, on theground that the land, the subject-matter of the action, must bedeemed to include the buildings on it, thereby making its value inexcess of Bs. 300. It was conceded by counsel for the appellanton the hearing of the case in the Court below that the land itself inquestion did not exceed in value Bs. 300, and the action is broughtentirely to establish title to the land and not to the buildings. Ifthe plaintiff failed, the decree in point of law would only affect theland, although incidentally portions of the building on it might haveto be removed; but under section 88 of Ordinance No. 10 of 1861it is title to the land only which is to be put in issue. I think,therefore, that this objection must fail.
As regards the course adopted by the defendants in this matterin compelling the plaintiff to bring this action, at least as regardsthe northern house, it bears to me the appearance of an attempt toadvertise the alleged incapacity of their predecessors in the office.Under sections 86 and 94 of the Ordinance which was passed in 1861the defendant committee have the most ample powers conferredon them to prevent building on a public thoroughfare; but we nowfind them in 1905 putting in force their powers under section 88 tocompel an owner to prove title to an alleged encroaching house,which was admittedly begun to be built in 1887 and completed in1891 in the principal thoroughfare of the town of Jaffna, and whichmust have been built under the daily, if not hourly, observation ofthe authorities whose duty it. was to see that no encroachment wasmade on the public thoroughfare. It is clear therefore that, asregards the northern house, the plaintiff had been in possession of itand its alleged encroachment for something like fourteen yearswithout any objection by the defendant committee. I think, a'strong presumption arises from this fact under section 114 of theEvidence Ordinance that the house belongs to the plaintiff, and wasbuilt with the consent of the existing Eoad Committee, and thereforenot on land forming part of the public thoroughfare.
The plaintiff produces a deed of gift for the house from his fatherdated 1892, but it is objected that he has not produced an ante-cedent title deed. There is no presumption also that the allegedinterspace formed part of the public street, which I take to be thedictum of Withers J. in the case reported in 1 Tambayah 45. I thinkalso the title which the plaintiff has to prove under the Ordinanceis such a clear prima facie title as would put on a party claimingan obligation to prove a better. In my opinion the plaintiff hasestablished such a title as regards the northern house which it isincumbent on the defendants to rebut, and I agree with the learnedDistrict Judge that the evidence that the plaintiff built on public
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ground is by no means convincing, and – that the rebuttal is notestablished. I therefore uphold his finding on that part of thecase.
As regards the steps of the northern house which it is admittedproject into the roadway, there is no evidence when they were putthere, and it may be they are, as regards their encroachment, aquite recent addition to the house. I hold that the title establishedby the plaintiff does not cover them. There is an obligation undersection 93 of the Ordinance to make a bridge or platform over theside drain, but this does not imply that it should encroach into thestreet. As regards these steps, therefore, I think the plaintiffhas failed, and will be liable to remove them on 'the orders of thedefendants.
We then come to the southern house. I think it is clear on theevidence that the learned Judge was right in holding that its verandahwas built on the site of the old Dutch verandah, and though itshaving been replaced in brick instead of wood gives the effectattributed to it by Mr. Leak in his evidence, I think that the plaintiffhas established his title to the land it stands on.
The plan annexed to the deed of 1884, No. 241, in my opinion isstrong evidence that there was an irregularity in the line of thestreet at that time, which I think meets the evidence of Mr. de Nieseas to the converging of the line of street at the plaintiff’s houses.
It does not follow that because an old street converged at certainpoints, while the rest of it exhibits equality of width and straightness,that the converging sides are necessarily encroachments on thepublic thoroughfare.
It may not be possible for a private owner to prescribe from thepublic highway by virtue of length of possession (Queen, v. Ed-uljee *),but I have no doubt that long, uninterrupted possession, ut dominus,of land subsequently claimed to form part of the public highwayraises a strong presumption that the land in question is the privateproperty of the possessor.
I do not see how the evidence as. to permits alluded to by thelearned counsel' for the appellant at pages 12, 13, and 17 affectsthe plaintiff’s case, as under section 86 a person is not permitted tobuild on his own land along any thoroughfare without permission.
In my opinion this appeal should be dismissed with costs, an orderwhich I am not disposed to modify, even though the plaintiff mayhave failed as regards the steps.
Appeal dismissed.
♦1907.
August 30.
Middleton
J.
> (1843-55) Bam. 105.