010-SLLR-SLLR-2009-V-1-WANIGASOORIYA-vs-DANAWATHIE-AND-OTHERS.pdf
Wanigasooriya vs. Danawathie and othersCA
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WANIGASOORIYA
vsDANAWATHIE AND OTHERS
COURT OF APPEALABDUL SALAM. JCA 658/04 (F)
DC KULIYAPITIYA 12417/99NOVEMBER 12, 2007
Permissive access given – Plaintiff unable to protect cultivation -Alternate access available – Prescriptive title? – Roadway used for over50 years – Rights adverted to the plaintiff? – Right of servitude – Proof-Way of necessity.
The plaintiff-appellant filed action alleging that her father had permittedthe defendants predecessor to have access to his land, over and along theland of the plaintiff, and sought a declaration to close down the road, andfurther alleged that the defendant has alternate way.
The defendant-respondent contended that, the roadway in question hadbeen used by him over a period of 50 years and moved for a dismissal of theaction. The trial Court held with the defendant-respondent.
Held:
The judgment does not support even by a stretch of imaginationthat the defendants used the right of way for a long period of timeexceeding 50 years adverse to the rights of the plaintiff, but merelystates that they had used their path.
The judgment does not identify the use being adverse to the rights ofthe plaintiff on a title ten years immediately preceding the institutionof the action.
The consequence of this finding would be that according to the trialJudge the defendant had not acquired any prescriptive rights to theroadway.
It is quite clear that the trial Judge has erred in not appreciatingthat there was lack of evidence regarding the acquisition of a rightof way of necessity.
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APPEAL from the judgment of the District Court of Kuliyapitiya.
Cases referred to:-
Brampy Appuhamy vs. Gunasekara 50 NLR 253 at 255
De Soysa vs. Fonseka – 58 NLR 501
Collin Amarasinghe with Roland Munasinghe for plaintiff-appellantN. R. M. Daluwatte PC with Gaithri de Silva for defendant respondent
May 11, 2009ABDUL SAL AM, J.
This is an appeal from the judgment of the learnedadditional district Judge of Kuliyapitiya, dismissing theaction of the plaintiff-appellant (hereinafter referred to as the“plaintiff”).
The background to the appeal briefly is that the plaintifffiled action against the defendant-respondents (hereinafterreferred to as the “defendants”) alleging that the father of theplaintiff permitted the defendant’s predecessor in title to haveaccess to his land, over and along the land of the plaintiff.The plaintiffs position is that the said permissive accessgiven to the defendants and their predecessors has resultedin a division of her land and therefore she is unable to protector improve her cultivation. The plaintiff further averred in herplaint that alternative access is available to the defendants toavoid such a division of the land and defendants by not usingthe alternative way have caused damages to her in a sum ofrupees 3500/- per month.
The defendants whilst admitting the ownership of theplaintiff to the land in question claimed that the roadway hadbeen used by them over a period of 50 years and moved for adismissal of the plaintiffs action.
At the commencement of the trial paragraphs 1, 2 and 3were admitted by the defendants, Paragraph 1 of the plaint
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deals with the situation of the land and as to the places wherethe defendants resided. Paragraph 2 of the plaint deals withthe ownership of the plaintiff to the subject matter alongwhich the defendants were using the roadway. Paragraph3 of the plaint deals with the manner in which the plaintiffbecame the owner of the subject matter over which thedefendants are using the alleged permissive roadway.
The material facts and the law on which the parties wereat variance included as to whether defendants were permissiveusers of the road in question and whether the plaintiff isentitled to close down the road, since the defendants havean alternative roadway to gain access to their land. As hasbeen referred to above, the title of the plaintiff to the land inquestion was never an issue before the learned district Judge.However in his judgment the learned district Judge whilstarriving at the finding that the defendants had failed to provea right of servitude on prescription and by way of necessityavoided holding the plaintiff as being the owner of the subjectmatter. The learned counsel of the plaintiff has submittedthat the learned judge was patently in error when he failed tofind on the plaintiffs ownership and thereafter proceeded toenter a decree for the dismissal of the plaintiffs action.
For purpose of lucidity and comprehension of the actualdispute and to ascertain the exact approach adopted by thelearned judge towards the resolution of the dispute, it isappropriate to produce a translation of the issues and themanner in which they were answered in the judgment. Whentranslated into English they appear to me as follows…
Did the husband of the 1st defendant who is also the
father of the 2nd defendant serve the father of the plaintiff
as a watcher? Yes
During that period with the leave and licence of the
father of the plaintiff and subsequently with the leave and
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licence of the plaintiff, (after the plaintiff became theowner of the subject matter) did the defendants use theroadway referred to in the plaint and depicted in planNo 129 A/71? Not established.
Thereafter during the time the defendants were usingthe said roadway has the plaintiff suffered damages asreferred to in paragraph 9 of the plaint? Not established
As the defendants enjoy an alternate right of way to theirland, has the plaintiff got the right to close down the roadused by the defendant with the leave and licence of theplaintiff? No
Have the 1st, 2nd and the 3rd defendants and before themtheir predecessors used the right of way depicted as X1Bin plan X for a long period of time exceeding 50 years?The defendants have enjoyed it for a long period of time.
Are the defendants entitled to the said right by way ofnecessity? According to the facts proved the defendants are notentitled to a right of way of necessity.
Are the defendants entitled to the reliefs prayed for intheir answer in the event of 5,6 being answered in favourof them? Certain reliefs can be obtained.
If the defendants are in need of a right of way of necessityare they entitled to obtain the same as referred to in theiranswer? No
The learned counsel of the plaintiff has adverted to thefailure on the part of the defendants to make a specific claimof a right of way over the plaintiff’s land by prescription andthe failure to state even an issue relating to such a claim.Paragraph 5 of the answer merely confines to the defendantsand their predecessors having enjoyed a right of way for a
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period of 50 years. At this stage it may be useful to refer to thejudgment in the case of Brampy Appuhamy Vs Gunasekdra[l)at 255 where Basnayaka J (as he then was) held in relationto the limitation of actions under the statute (PrescriptionOrdinance) – section 5, 6, 7, 8, 9, 10, and 11 unless it isspecially pleaded by way of defence. The crux of the decisionin the said case, when applied to the facts of the presentmatter would reveal that the learned district Judge has infact erred with regard to the proper application of the law.
The impugned judgment of the learned district Judgein answer to issue 5 does not support even by a stretch ofimagination that the defendants used the right of waydepicted as X1B in plan X for a long period of time exceeding50 years, adverse to the right of the plaintiff but merelystates that they had used the path. In other words thefinding of the learned district Judge inter alia was that the1st, 2nd and the 3rd defendants and their predecessors haveused the right of way depicted as X1B in plan X for a longperiod of time exceeding 50 years, but does not identify theuse as being adverse to the right of the plaintiff on a titleindependent and whether they enjoyed the same without anyinterruptions for a period of 10 years immediately precedingthe institution of the action. The consequence of this findingwould be that according to the learned judge the defendantshad not acquired any prescription rights to use the roadway.
The learned counsel of the plaintiff has suggested thatthe failure to find in favour of the defendants on adversepossession was on account of the admission of the twodefendants who testified in court and the answer to issueNo 1 to the effect that the husband of the 1st defendant whois also father of the 2nd defendant had served the father of theplaintiff as a watcher. The unambiguous nature of the findingof the learned district Judge was that defendants have failed
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to establish a right of servitude by long and prescriptive userattached to the land.
It is pertinent at this stage to reiterate the legalprinciple set out by his Lordship Basnayaka CJ in DeSoysa Vs Fonseka[2) as to the nature of the evidence requiredto prove the acquisition of a right of way by prescription. HisLordship stated that clear and unmistakable evidence of thecommencement of an adverse user for a prescriptive periodis necessary to entitle the licensee to claim a servitude inrespect of the premises.
The learned district judge has also found that thedefendants are not entitled to a right of way of necessityeither. In the circumstances, it is quite clear that the learneddistrict Judge has erred basically in answering some of theissues, when there was clear admission as to the ownershipof the plaintiff and lack of evidence regarding the acquisitionof a right of way of necessity or a right of way of prescriptionby the defendants. The error thus committed by the learneddistrict Judge has ended up in a serious miscarriage ofjustice. As the plaintiff who is legitimately entitled to adeclaration that she is the owner of the property in questionwithout any burden of servitudes has been unduly denied ofa declaration to that effect and this in my opinion is perverseand needs to be corrected.
For the foregoing reasons it is my considered view thatthe learned district Judge should have answered the issuesin the following manner:
Did the husband of the ,1st defendant who is also thefather of the 2nd defendant serve the father of the plaintiffas a watcher? Yes
2.During that period with the leave and licence of thefather of the plaintiff and subsequent to the plaintiff having
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become the owner with the leave and licence of theplaintiff, did the defendants use the roadway referred toin the plaint and depicted in plan 129A/71? Yes
Thereafter during the time the defendants were usingthe said roadway, has the plaintiff suffered damages asreferred to in paragraph 9 of the plaint? Not established
As the defendants enjoy an alternate right of way to theirland, has the plaintiff got the right to close down the roadused by the defendant with the leave and licence of theplaintiff? Yes
Have the 1st, 2nd and the 3rd defendants and before themtheir predecessors used the right of way depicted as X1Bin plan X for a long period of time exceeding 50 Years?The defendants have enjoyed it for a long period of time.
Are the defendants entitled to the said right by way ofnecessity? According to the facts proved the defendantsare not entitled to a right of way of necessity.
Are the defendants entitled to the reliefs prayed for intheir answer in the event of 5, 6 being answered in favourof them? Not entitled to any reliefs.
If the defendants are in need of a right of way of necessityare they entitled to obtain the same as referred to in theiranswer? No
Subject to the above variations made in relation to theanswers given to the issues by the learned district Judge,it is my view that this case should be decided in favour ofthe plaintiff as prayed for in the plaint but without damages.The learned district Judge is directed to enter decree afreshaccordingly.
Appeal allowed