051-NLR-NLR-V-36-TIKIRI-APPU-v.-DINGIRALA.pdf
DALTON J.—Tikiri Appu v. Dingirala.
267
1934Present: Dalton J.
TIKIRI APPU v. DINGIRALA.
5—C. R. Mat ale, 2,561.
Servitude—Right to use a threshing-floor—Rural praedial servitude recognizedin law—Possession ut dominus.
The right to use a threshing-floor is a servitude recognized in law.
^ PPEAL from a judgment of the Commissioner of Requests. Matale.
E. Navaratnam, for plaintiff, appellant. „
«Cur. adv. vult.
May 14, 1934. Dalton J.—
In this action the plaintiff, as owner of a field named Pallewele Wagale-kumbura, claimed to be entitled by prescription to the use of a threshing-floor called Godakumburekamata, situated upon a land belonging at the
268
DALTON J.—Tikiri Appu v. Dingirala.
time of the action to the defendant. He pleaded that the owner ofPallewele Wagalekumbura had been entitled to the use of this threshing-floor from time immemorial. The plaint further set out that on May 19,1933, defendant wrongfully dug pits and planted trees on the threshing-floor, which interfered with the plaintiff's use of it and prevented himfrom threshing his crop there, which resulted in his suffering loss anddamage to the amount of Rs. 81.25. '
The defendant denied the truth of the allegations set out in the plaint,but admitted that he had prevented plaintiff from using the threshing-floor on May 19.
The issues framed were as follows: —
Was the plaintiff entitled to the use of the kamata on Goda-kumbure ?
Is that right claimed a right enforceable at law?
What damages, if any, is plaintiff entitled to from defendant ?
The second issue raises a question of law, whether such a servitude asplaintiff claims is known to the law and enforceable at all. The Commis-sioner has answered the issue against the plaintiff, but has given noreason for this conclusion. I have unfortunately not had the benefit ofhearing counsel for defendant (respondent) in support of this conclusion,but reliance for the correctness of the judgment seems to have beenbased on the decision in Fernando v. Fernando
It is urged for plaintiff (appellant) that the right to the use of thisthreshing-floor is a rural praedial servitude, the dominant tenementbeing a yaya or range of fields, of which plaintiff’s field, named above,is one, the servient tenement being Godakumbure. There is no evidenceto show if any other land intervenes between the yaya in question andGodakumbure. No question has been raised in the lower Court as to thatpossibility creating any difficulty, hence it may be that defendant’s landGodakumbure and the yaya are contiguous.
In support of this argument for appellant I have been referred toVoet {bk. VIII., tit. 3, ss. 11 and 12) and to Maasdorp’s Institutes vol. II..p. 229. The latter points out that the rural praedial servitudes to whichhe specifically refers are not exhaustive of their number, for every limita-tion upon the rights of ownership which is placed as a burden upon anyservient property for the benefit of a dominant property is a servitude.This is in accordance with what Voet says in bk. VIII., tit. 3, s. 12.In section 11, however, amongst the servitudes actually enumerated hementions the right “ of pressing grapes or threshing com or pulse onanother’s land ”. Having regard to the fact that paddy is the principalplant cultivated in Ceylon, the term “ com ” as used here is quite wideenough to include such a cereal plant as paddy. I have no difficulty inarriving at the conclusion that the second issue must be answered in theaffirmative–
The first issue raises the question whether the plaintiff has establishedthat he is entitled to this servitude. The finding of the Commissioner onthe evidence is against him. He states he cannot place any reliance on
*14 N. u. ft. 166.
269
Jayaweera v. Abdul Cader.
the evidence of either plaintiff or the Vidane who was called as a witness.In addition to that, however, taking plaintiff’s own evidence, there isconsiderable doubt in my mind as to whether plaintiff's alleged use of thekamata in question was ever claimed by him as of right. I gather fromhis evidence that his use of it depended upon the Vel-Muladeniy arspermission, and not upon any right he, plaintiff, had as owner of any land.He states that he had been using the threshing-floor in question as longas he can remember. He then goes on to say it is a “ communal ” kamata,and then he states that he could not ask for the right to use it, but it isfor the Vel-Muladeniya to do so.
The Vel-Muladeniya seems to agree with this to some extent. He doessay that plaintiff had used the kamata in question from his youth, butapparently not as of right. He speaks of “ Crown threshing-floors ” andprivate threshing-floors, the one in dispute here being, he states, a Crownthreshing-floor. He does not explain this further, although he statesdefendant has been prosecuted under some Irrigation Ordinance for notpermitting plaintiff to use the kamata. He then adds that the kamatain question belongs to the cultivators of the yaya, and that there is also •one other kamata for this yaya. He continues, “ I can as Vel-Muladeniyamake people allow others to use their private threshing-floors. Plaintiffdid not come and ask me to allow him to thresh his paddy on anotherkamata. If he had, I would have allowed it
In view of this vague and unsatisfactory evidence from plaintiff and hisprincipal witness, it is sufficient for the purpose of this case to say thatplaintiff has failed to establish his right to the use of the kamata utdominus.
In that event the dismissal of his action was correct and the appealmust therefore be dismissed with costs.
Appeal dismissed.