Sri Lanka Law Reports
 3 Sri L.R
MELDERCOURT OF APPEAL
DR. A. De Z. GUNAWARDANE, J.
J.A.N de SILVA, J.
CA 688/93 (F).
DC MT. LAVINIA 308/SPL.
JANUARY 24, 1996 ANDFEBRUARY 8, 1996.
Servitudes – Actio Confessario – Actio Negatoria – Difference – Declarationthat land is free from servitude – Who could institute such an action? – Couldit be by a person who himself enjoys only a servitude?
The plaintiff-respondent instituted action for a declaration that the defendant-appellant is not entitled to use the road reservation – the plaintiff was not theowner of the land over which the roadway exists.
The trial court gave judgment in favour of the plaintiff-respondent.
Actions relating to servitudes are categorized under Roman DutchLaw as Actio Confessario – An action to enforce a servitude and ActioNegatoria – Action to declare a property free from servitude.
Actio Negatoria could only be brought by an owner against any oneclaiming a right to exercise a servitude over his property for thepurpose of ascertaining whether a servitude existed.
The plaintiff prayed for a declaration that the defendant is not entitledto use the, road reservation. This action falls into the category of ActioNegatoria.
Saparamadu v Melder
The plaintiff not being the owner of the land over which the roadwayexists cannot maintain the action.
J.A.N. de SILVA, J.
“It is to be noted that the action has been filed on the basis that the defendant-appellant has no right to use the road: we are of the view that such an actioncan be filed only by a person who has soil rights and not by a person whohimself enjoys only a servitude”.
Appeal from the judgment of the District Court of Mt. Lavinia.
P.A.D. Samarasekara PC with R.Y.D. Jayasekara for defendant-appellant.
Ikram Mohamad with Shyama Fernando for plaintiff-respondent.
March 22, 1996.
J.A.N. de SILVA, J.
This is an appeal from the Judgment of the learned District 01Judge of Mount Lavinia in case No. 308/Spl.
The plaintiff-respondent instituted this action in the DistrictCourt of Mount Lavinia on the 20th of April 1983 for a declarationthat the defendant-appellant is not entitled to use the roadreservation depicted as lot 7 shown in Plan No. 24 (marked P2)morefully described in the schedule to the plaint in any mannerwhatsoever and for a permanent injunction restraining thedefendant-appellant, his servants and agents from using the saidroadway.10
The defendant-appellant sought to claim a prescriptive right touse the said roadway.
The plaintiff claimed title to the said roadway upon a series ofdeeds commencing from 1922.
At the trial the following admissions were recorded:
that Earnest Jubilee Melder became the owner of Lot Ain Plan No. 66A dated 03.10.1922.
that the said Earnest Jubilee Melder died on 03.07.1936leaving a last will, which was admitted to probate in caseNo. 81117/T of the District Court Colombo and that 20probate was issued to Ela Jane Melder.
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In terms of the last will Ela Jane Melder became theowner of that Lot A1 in Plan No. 66A.
According to Plan No. 24 of 02.04.1956 lot ‘A’ of Plan No.66A was divided into seven lots and lot No.7 wasmarked as a road reservation.
Ela Jane mentioned above, by deed of gift No. 3659 of
25.03.1967 gifted lot A3 and A4 in Plan No.24 withrights over the roadway over lot 7 to her son EarnestOscar James Melder.30
Earnest Oscar James Melder died intestate leavingViolet Catherine Melder, the plaintiff in this case and 4children.
Earnest Melder’s estate was administered in case No.
25047/T of the District Court of Colombo and plaintiff-respondent became entitled to an undivided half share oflots No. 3A and 4A in Plan No. 24 along with rights overthe roadway viz. lot 7. It was also admitted that the landbelonging to the defendant abuts the aforesaid roadwaydepicted as lot 7 in Plan No. 24.40
The following five issues were raised at the trial viz:
In terms of the above admissions has the defendant gota right to use the roadway marked in Plan No. 24 markedas P2.?
If so, is the plaintiff entitled to the relief prayed for.?
Has the defendant used this roadway undisturbed anduninterrupted without any obstruction continuously formore than 30 years to go on foot and vehicles and todraw electric mains and to lay water mains?
Can the plaintiff have and maintain this action without 50making all other co-owners of Lot A7 parties to thisaction?
If jssues 3 and 4 are answered in the affirmative shouldthe plaintiff’s action be dismissed with costs?
QASaparamadu v Melder151
(J.A.N. de Silva, J.)
In view of the admissions referred to earlier the defendant-appellant began the case. He had based his case on long anduninterrupted user. In support of this he himself gave evidence andled the evidence of his father and another witness. It is to beobserved that the defendant had called the plaintiff too to giveevidence on his behalf.
The learned District Judge has given judgment in favour of theplaintiff as prayed for in the plaint.
The learned counsel for the defendant-appellant submittedthat plaintiff-respondent cannot have and maintain this action.
He pointed out that actions relating to servitudes arecategorised under Roman Dutch Law as “Actio Confessorio” and“Actio Negatoria” or Contraria, the former being an action toenforce a servitude and the latter to declare a property free from aservitude.
“Actio Negatoria” could be brought only by an owner againstanyone claiming a right to exercise a servitude over his propertyfor the purpose of ascertaining whether a servitude existed. Thelearned counsel cited Wille on principles of South African Law,page 224 to substantiate this proposition, which states as follows:
“If a person unlawfully claims a servitude over land orclaims greater rights under a servitude than it actuallycomprises, the owner of the land may bring an actionagainst him, known as the actio negatoria, for adeclaration that his land is free from the servitudeclaimed, or free from the excessive burdens as the casemay be. This action can be instituted by none but theowner of the land in question.”
The learned counsel for the defendant-appellant drew theattention of this court to paragraph (a) of the prayer to the plaint,which read thus, “for a declaration that the defendant is not entitledto use the road reservation shown in Plan No. 24 and morefullydescribed in the second schedule hereto in any mannerwhatsoever.” The counsel submitted that, this action falls, into thecategory of Actio Negatoria. Therefore, the plaintiff not being theowner of the land over which the said roadway exists, the plaintiff-respondent cannot maintain this action. It is clear from the
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admissions recorded and the deeds produced in this case, that theplaintiff-respondent is a co-owner of lot No. 3A and 4A of Plan No.
24 dated 02.04.1956 and she has only a right of way over lot 7 ofthe said plan.
It is to be noted that the action has been filed on the basis thatthe defendant-appellant has no right to use this road. We are of theview that such an action can be filed only by a person who has soilrights and not by a person who himself enjoys only a servitude. Theplaintiff-respondent has not even claimed that she has prescriptive 100title to the land on which the said roadway exists.
The learned counsel for the plaintiff-respondent submitted thatthe plaintiff’s action is an action which comes within the meaning of“Actio Confessorio”. He further submitted that if the exercise orenjoyment of a servitude is obstructed or infringed in any way theholder of a servitude may by means of actio confessorio enforce hisrights.
It is to be observed that when a person who enjoys aservitude is obstructed, he could bring an action against the personwho obstructs to restrain him from interfering with the enjoyment of nothe servitude. The counsel for the plaintiff-respondent too citedfrom Principles of South African Law – by Wille 5h edition thefollowing passage at page 222:
“If the exercise or enjoyment of the servitude beobstructed or infringed in any respect, the holder of theservitude may by means of confessoria enforce his legalrights.”
However, in the instant case the plaintiff-respondent hasprayed for a declaration that the defendant-appellant has no rightto use the right of way in question. We are of the view that she 120cannot have and maintain this action in the present form againstthe defendant-appellant as she has no soil rights in respect of thesaid road reservation marked, Lot 7 in Plan No. 24. This aspect ofthe matter has neither been raised nor looked into by the learnedDistrict Judge. We therefore set aside the judgment of the learnedDistrict Judge and dismiss the plaintiff’s action.
In the circumstances, the appeal is allowed with costs fixed atRs. 750/-.
SAPARAMADU v. MELDER