Sri Lanka Law Reports
 2 Sri L.R
SOMAWATHIE AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. NO. 520/93(F)
C. COLOMBO 15093/LJUNE 12. 2003
JULY 17. 2003
Right of way of necessity – Raising of unpleaded issue on prescription half waythrough case – Is it permitted?- Law relating to right of way by prescriptiveuser – Prescription Ordinance sections 5, 6, 7, 8, 9, 10 and 11.
The plaintiff-appellant instituted action praying that he was entitled to a right ofway of necessity. The defendant-respondent prayed for a dismissal of theaction. The plaintiff-appellant moved to frame an additional issue which wasbased on prescription half way through the trial.
This was objected to by the defendant-respondent and court rejected the saidissue.
At the conclusion of the trial the District Judge dismissed the action.
Though issues are not restricted to the pleadings, it is equally settledlaw that no party can be allowed to make at the trial a case materiallydifferent from that which he has placed on record.
A right of way by prescription has to be established by proof of the exis-tence of the following ingredients, inter alia, –
uninterrupted and independent user for at least 10 years to theexclusion of all others;
These are matters of fact, and unless such matters are pleaded by the plain-tiff, there would be no way how the opposing party could counter the claim ofthe plaintiff-appellant based on acquiring a right of way by prescriptive user.
APPEAL from the judgment of the District Court of Colombo.
Ranasinghe v. Somawathie and others
Cases referred to:
Bank of Ceylon v Chellappapillai – 64 NLR 25
Hildon v Munaweera – (1997) 3 Sri LR 220
G.P. Nandias Silva v T.R. Unamboowe – 76 CLW 25
Brampy Appuhamy v Gunasekera – 50 NLR 253
Liyanage and others v Seneviratne – (1986) 1 CALR 308
Nadarajah v David – (1999) 1 Sri LR 240Nihal Somasiri for plaintiff appellant.
Hemasiri Withanachchi for substituted defendant-respondents.
October 23,2003DISSANAYAKE, J.
The plaintiff-appellant instituted this action praying inter alia, that 01he was entitled to a right of way of necessity over the area colouredin blue, in plan No. 3052 dated 20.2.1965 (P4) drawn by licensed sur-veyor S.Rajendra, which area allegedly is situated between lots No.210 and 208/2 belonging to the original defendant.
The original defendant in his answer filed, whilst denying theaverments in the plaint prayed for dismissal of the action.
The case proceeded to trial on 19 issues and at the conclusionof the trial, the learned District Judge dismissed the action.
It is from the aforesaid judgment that this appeal has been pre- .10ferred.
Learned counsel who appeared for the plaintiff-appellant con-tended that the learned District Judge was in error when he dis-missed the action. The aforesaid contention of learned counselappearing for the plaintiff-appellant appears to be based on thegrounds that the learned District Judge has failed
to embark on a proper analysis and evaluation of evidence, inrelation to right of way of necessity.
to allow the application of the plaintiff-appellant during the
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course of the trial to raise an issue on prescriptive user on the 20ground of acquisition of a right of way on the basis that it wasnot pleaded, and thereby he had failed to appreciate the prin-ciple that raising of issues is not confined to the pleadings.
The plaintiff-appellant’s case was that he was resident at No.208/1, and he had a business adjoining his house, which boreassessment No. 214. He claimed a right of way by necessity overland bearing assessment No.210 which was in possession of theoriginal 1st and the 2nd defendant-respondents. During the courseof evidence, the plaintiff-appellant conceded that the premisesoccupied by him consisted of two assessments numbers bearing 30numbers 208/1 and 214 which adjoins each other with a commondoor. He stated that while he lived at No. 208/1, his business wascarried on in premises No. 214. On the plaintiff-appellant conced-ing that he had ample access from his premises to Mutuwal Roadas they are situated abutting Mutwal Road, it is apparent that hisclaim of right of way of necessity fails.
After his disclosure in his evidence that he had ample access toMutwal Road from his property and as such his claim of a right ofway by necessity cannot be maintained, he had moved to frame thefollowing additional issue which was based on prescription half way 40through the trial.
Issue No. 20:
Has the plaintiff acquired a right of way over the area marked inblue in plan X to have access to his property by prescriptive user?
The 2nd defendant-respondent objected to the aforesaid issueon the basis that raising an unpleaded issue of prescription halfway through the case will cause prejudice to the defendant. Thelearned District Judge agreed with the contention of the defendant-respondent and had rejected the additional issue.
It is to be observed that the principle that issues are not restrict- 50ed to the pleadings is well recognized one under our law of civil pro-cedure (Vide Bank of Ceylon v Chellappapillai )<1>.
It is also equally settled law, that no party can be allowed tomake at the trial a case, materially different from that which he hasplaced on record. Per Gunawardane, J. in Hildonv Munaweera <2>.
Ranasinghe v. Somawathie and others
It is interesting to note that the plaintiff-appellant instituted thisaction pleading in his plaint, a right of way of necessity. The origi-nal 1st defendant and the 2nd defendant-respondent had filed theirjoint answer and refuted the claim of the plaintiff-appellant basedon the law relating to the right of way of necessity.
The law relating to right of way by prescriptive user is different.The material that are necessary to be established by the plaintiffand the defences that are available to a defendant are substantial-ly different. Raising of issues on the Prescription Ordinance whichare not pleaded have been frowned upon by our courts. Vide thedecisions of G.P. Nandias Silva v T.P Unamboowe (3> and BrampyAppuhamy v Gunasekera <4).
In Brampy Appuhamy v Gunasekera (Supra) Basnayake, J. (asHis Lordship then was) at page 255 stated:-
“An attempt was made to argue that the defendant’s claim wasbarred by Prescription Ordinance (Cap. 55). That plea is not takenin the plaintiff’s replication. There is no issue on the point nor isthere any evidence touching it. The plaintiff was represented bycounsel throughout the trial. In these circumstances the plaintiff isnot entitled to raise the question at this stage. It is settled law thatwhen, as in the case of sections 5, 6, 7, 8, 9, 10 and 11 of thePrescription Ordinance the effect of the statute is merely to limit thetime in which an action may be brought and not to extinguish theright, the court will not take the statute into account unless it is spe-cially pleaded by way of defence.”
In G.P. Nandias Silva v T.P. Unamboowe (Supra) it was held,inter alia where the plea of estoppel has not been taken in the' pleadings, no issue may be raised therein.
Learned counsel who appeared for the plaintiff-appellant citedLiyanage and others v Seneviratne (5) and Nadarajah v David (®)and contended that the aforesaid decisions apply to the facts of thecase that is presently before me.
It is to be observed that the decisions of the aforesaid twoappeals were in respect of pure questions of law, that arose onpleadings. To be precise those decisions relate to raising of issueson matters that were not dependent on any facts, they deal withpure questions of law arising out of the pleadings.
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 2 Sri L.R
On the contrary the question presently before me is in respect ofa plea of prescription as means of acquiring a right of way. This isdependent on evidence of establishing a right of way by prescriptiveuser. A right of way by prescription has to be established by proof ofthe existence of the following necessary ingredients inter alia that arenecessary to conclude the existence of such a right:-
uninterrupted and independent user for at least 10 years to the 100
exclusion of all others.
(section 3 of the Prescription Ordinance) (cap.81)
The above matters are all questions of fact and they have toestablished by cogent evidence.
Therefore, unless such matters are pleaded by the plaintiff,there would be no way how the opposing party could counter theclaim of the plaintiff-appellant based on acquiring a right of way byprescriptive user.
I am of the view that the acquisition of a right of way by pre-scriptive user is not a pure question of law, and is dependent on nofacts too, hence the decisions of Liyanage and others Seneviratne(Supra) and Nadarajah v Daniel (Supra) do not apply to the facts ofthe action presently before me.
Thus it appears that the learned District Judge has rightly reject-ed issue number 20 suggested by the plaintiff-appellant.
It is to be observed further that the learned District Judge hadrightly rejected the claim of right of way by necessity since theplaintiff-appellant already had access to Mutwal Road.
I see no basis to interfere with the aforesaid judgment of thelearned District Judge. Appeal of the plaintiff-appellant stands dis-120missed with costs fixed at Rs. 5000/-.
SOMAWANSA, J. – I agree.
RANASINGHE v. SOMAWATHIE AND OTHERS