002-NLR-NLR-V-53-SENTHIRAJA-Appellant-and-MARIMUTTU-Respondent.pdf
Senathiraja v. Marimuttu
5
Present: Nagallngam J.SENATHIBAJA, Appellant, and MAEIMUTTU, BespondentS. C. 47—C. R. Mallakam, 14,009
Servitude—Bight of way—Lost grant—Circumstances when it may be inferred—Burden of proof—Location of right of way—Right of owner of dominant tene-ment to elect route.
In an action for declaration of title to a servitude of right of way the plaintiffswere unable to establish affirmatively an actual grant bat produced a seriesof deeds, one of which was ninety years old, bearing reference to the allegedright of way.
Held, that in the circumstances it was proper to draw an inference of a lostgrant.
Held further, (i) that the plaintiffs, having established their legal right tothe servitude, were under no obligation to establish further any prescriptivetitle. It was for the defendants to establish either an abandonment by theplaintiffs of their right or the loss of it by non-user.
(ii) that when a servitude of right of way has been granted and no particularportion of the servient tenement has been indicated over which the servitudemay be exercised, the owner of the dominant tenement has the right of election'as to the portion on which he will exercise his right of servitude.
^ PPEAXi from a judgment of the Court of Bequests, Mallakam.
Lot A and lot B, which belonged to the plaintiffs and the defendantsrespectively, were at one time contiguous portions of the same land. Ina claim made by plaintiffs for a right of way over lot B plaintiffs werenot able .to establish affirmatively an actual grant by the owner of thedefendant's land or by a common owner of both the allotments. Plaintiffs,however, produced a deed at least ninety years old which referred to
NAOAt/tNGAM J.—Senalhiraja o. Mofitnul/u
the allegedrightofway. The servitude wsb referredtoin some
later deedsalso.Itwas possible in the circumstancestodraw nn
inference of a lost grant and to hold that it was either the owner oflot B or the common owner of both lots A and B who had made thegrant.
S. .7. V. CUelvauayakain. K.C., with S. Tliamjarajaft, for the plaintiffsappellants.
C. Vannianinghftm, with R. Sharoananda, for the defendants respondents.
Cur. adv. null.
December 2, 1949:Naoamnqam J.—
This is an appeal from a judgment of the learned Commissioner ofBequests of Mnllaltam dismissing plaintiffs’ action for a declarationthat they are entitled to a right of way over defendants’ land in orderto get to a well standing further North of the defendants' land. Theplan PI filed of record shows in detail the various allotments belongingto the parties and the right of way olaimed. The plaintiffs’ landcomprising of lots 1, 2 and 3 in the plan lies to the South of the defendants’land and is separated from it by a live fence. To the North of defendants’land is the land of one Annamrnah and to the North of that is anotherland belonging to one Thamotheram and others on which the wellreferred to above is situate.
1 The title of the plaintiffs is based upon a series of deeds commencingwith a deed P8 dated as early as 1859. This deed expressly conveysto; the transferee thereunder who is a predecessor in title of the plaintiffsinfer alia share of th,e well lying to the North together with the usualwatercourse to lead water,, to the land and way. This description iscontinued in all the later deeds: of the plaintiffs down to the last deedP8 of 1988. It is not in dispute that the well referred to in the deed isthe well depicted in Plan Pi and referred to as the well standing onThamotheram’s land. The defendants' land also bears the same nameas that of the plaintiffs, namely, Akknthanai, and there are words inthe defendants' chain of deeds which lead to the inference that thedefendants’ land and the plaintiffs’ land formed parts of a bigger landof that name. In the deed P9 of 1876 which is the earliest deed relatingto the defendants’ title, the defendants' land is described as " AkkathanaiNorthern portion in extent ten laohams.” The description “ Northernportion ’’ is significant and fully warrants the inference that plaintiffs’and defendants' land formed parts of a bigger allotment, for theplaintiffs’ land lies immediately to the South of the defendants' land.The defendants themselves are entitled to a share in the said well undtheir land is entitled to servitudes of way and Watercourse over thelands interveuing between their land and the well. It would thereforeappear that when the entirety of the land comprising the allotmentsbelonging to the plaintiffs and defendants was divided, the plaintiffs’portion being the Southern portion was' granted a right of servitudeover the remaining Northern portion as well as the lands lying furtherNorth in order to enable the, owners of that portion to exeroiae their
NAGAUNGAM J.—Senathiraja c. .Warimutlu
7
rights to the share in the well. That this right of servitude in favourof the plaintiffs’ land was recognised" by the defendants’ predecessors. in title is clearly established from the deeds 3? 10 of 1891 and Pll of1897, by which Ujitheenam, the transferee under P9 of 1876, executedmortgages in respect of the defendants’ land. In both those mortgages,apart from reciting the * fact that the land mortgaged had a share of' the well standing towards the North and was also entitled to the usualwatercourse and way, expressly states that the mortgage was exclusiveof the usual watercourse and way to lead water to the Southern lot throughthis land. The Southern lot referred to, there can be little doubt, isplaintiffs’ land. .It is therefore clear that the plaintiffs’ deeds expresslyconvey to them the right of servitude of way and watercourse over thedefendants’ land to enable them to get to the lands to the North of thedefendants’ land and beyond to the well.
It is true that the plaintiffs have not been able to establish affirmative-ly an actual grant by the owner of the defendants’ land or by a commonowner of both the allotments comprising the plaintiffs’ and defendants’lands. But in view of the fact that reference to the servitude is madein a deed at least ninety years old, it is proper to draw an inferenceof a lost grant and to hold that it was either the owner of the defendants’land or more probably the common owner of the entirety of the landcomprising the plaintiffs’ and defendants’ lands who had made thegrant.
The learned Commissioner finds that certainly for over thirty yearsprior to 1940, there was no one residing on the plaintiffs’ land and that"therefore there was no need for the exercise of the rights of servitudeor to the enjoyment of the rights in the well. But on the other handthere is evidence which shows that in 1940 a house wafe' put up on theplaintiffs’ land~and that the water that was necessary for the construc-tion of the building was taken from the aforesaid well and over thedefendants’ land and that after the house was occupied the residentsused the well for their domestic purposes by making use of the defendants'land till October, 1945, when they were obstructed. The defendantsadmit the user of the land for these purposes but state that as theoccupants were relatives of theirs they had granted them permissionto do so. Seeing that the plaintiffs, and therefore their licensees, had alegal right to the servitude claimed, it is difficult to believe that anypermission was asked for or granted. The truth of the matter, as isclear from the evidence, appears to be that the plaintiffs and defendantsfell out over a claim asserted by the defendants to a garden well thatstood in the land called Thambiappulam but which claim was resistedby the plaintiffs, and the plaintiffs say that it was in consequence ofthat dispute and in retaliation it was that the defendants obstructedthe right of way that had been used since 1940 by the residents of theplaintiffs’- land.
While the learned Commissioner finds that the plaintiffs are entitledby virtue of their deeds to a right of servitude, he holds that the plain-tiffs have not established a prescriptive right thereto. But this is anerroneous approach to the determination of the rights of parties. The
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NAGALINGAM J.—Senathiraja e. Marimuttu
plaintiffs having established their legal right are under no obligationto establish further any prescriptive title- It was for the defendantsto have established neither an abandonment by the plaintiffs of theirright or loss of it by non-user. But the defendants did not put forwardany such pleas in their answer, for they had denied the existence ofany servitude over their land and were content to present their defenceon that footing; even when evidence was given not only of the plaintiffs’deeds but even of their own, indicating the existence of the servitudeclaimed, they did not deem it their duty to frame additional issuestending to establish that the plaintiffs, though they may have beenentitled to the right claimed by virtue of their deeds, they had lost theright either by abandonment or by non-user. As the case stands atpresent, it must be held that the plaintiffs have established their rightto the servitude claimed by them. The- question is whether the. caseshould be remitted to enable the defendants to put forward either ofthese pleas as urged by Mr. Sharvananda. There is already on recordsome testimony of a conflicting nature in regard to these questions andI do not think it advantageous or satisfactory that oral evidence shouldnow be permitted to be led by. the one side or the other in an attemptto establish new positions which had never been taken during the courseof the whole of the proceedings in this ease.
There remains for consideration the further question as regards thelocation of the right of way claimed by the plaintiffs. It would benoticed that the deeds to which' reference has already been made areof no assistance in regard to this matter. The plaintiffs claim the rightof way along the Eastern boundary of the defendants’ land over lot 4in plan PI. The principle of law applicable to a case where there isno grant of the servitude along a specified • part of the servient tene-ment is stated by Nathan* thus :
“ When a servitude conferring rights of way, water rights or anyother rural servitude has been unconditionally, granted over the landor bequeathed by will- and no particular portion of the estate hasbeen indicated over which the servitude may be exercised, the ownerof the dominant tenement has the right of election as to the portion
on which he will exercise his right of servitudeThis right of
election is grounded on the presumption that where no particular- portion of the estate is specified the whole farm is subject to theservitude.”
To- the same effect is voet 2. See also the judgment of Laseelles C.J.in Karunaratnc v. Gabriel Appuhamy s.
It seems to me, therefore, that even assuming that the plaintiff isnot in a position to show that the right of way had been granted overthe Eastern portion, he is entitled by virtue of the right conferred onhim by law to elect and to claim the right of way over the Eastern portionof defendants’ land along lot 4.
Though I have, used the term “ way ” in the course of this judgment,the word is not to be understood as having been used in the technical
* Vol. I, 1904 ed.p. 468, sec. 710.
* (1912) IS N. L. S. 257.
*8.3.8
Sinnapody c. Mannikan
9
sense of via but merely as a general term to indicate a path or way.The plaintiffs would be entitled to no more than a footpath to enablethem to go to and from the well and to lead water from the well to theirland; the footpath and the water channel must, however, rim together.The plaintiffs are themselves to a large extent to blame for the dismissalof their action for they apparently seem to have contended in the lowerCourt that while the watercourse may lie in one' direction the right ofway may lie in another. This is wholly untenable. Any watercoursethey claim to construct must lie along the footpath.
therefore direct that decree be entered declaring the defendants’land ■ to be subject to a servitude of footpath four feet wide and water-course along the Eastern boundary of Lot 4 in favour of the plaintiffs’land called Akkathanai comprising lots 1, 2 and 3 to enable the plaintiffs,their servants, agents and licensees to make use of the well depictedin the plan PI. The plaintiffs will also be quieted in the user of thesaid servitude.
In regard to damages, there is no proof of any special damage sustainedby them. I therefore award them nominal damages at Rs. 5 a yearfrom 10th October, 1945, till restoration of user.
On the question of costs, in view of the presentation by the plaintiffsof their case in the lower Court I think the proper order to make is thateach party should bear its own costs both of appeal and in the lowerCourt.
Decree set aside.