144-NLR-NLR-V-43-WEERASINGHE-v.-PERERA-et-al.pdf
Weerasinghe v. Perera.575
1912
Present: Jayctileke J.
WEERASINGHE v. PE REP. A el ah89—C. R. Colombo, 75,140.
Servitude—Right to thresh paddy—Prescriptive user.The right to thresh paddy on another’s land is a servitude, whichcan be acquired by prescriptive user;.What is prescribed by long user is not the ground on which the paddyis threshed but the incorporeal right of servitude.
Tikiri Appu v. Dingirirala (36 N. L. R. 267) followed.
576JAYETILEKE J.—Weerasinghe v. Perera.
APPEAL from a judgment of the Commissioner of Requests, Colombo.
• L. A. Rajapakse, for plaintiff, appellant.No appearance for defendants, respondents.
Cur. adv. vult.
July 7, 1942. Jayetileke J.—
This is an action for a declaration of title to lot X in plan 2. Theplaintiff claimed it as part of his field called Kiripellagaha Cumbura.The defendants claimed it as part of their high land Kiripellagahawatta.The plaintiff alleged that when he purchased the field in the year 1905there was a threshing floor on lot X and that he threshed his paddy thereever since hife purchase. The defendants alleged that a small portion oflot X was used as a threshing floor by the owners of the field adjoiningtheir land with the consent of their father and his predecessors in title.
The learned Commissioner has delivered a well-considered judgment,in which he has held that lot X forms part of the defendants’ land andthat the plaintiff – has acquired by prescription the right to thresh hispaddy on a portion of it. I entirely agree with his findings on the facts.
Counsel for the plaintiff contends that, as the plaintiff had put lot 5?to the only use to which it could have been put, namely, to thresh paddyon it, he is entitled to claim it by prescription. I do not think hiscontention is sound either on the law or on the facts.
The right to thresh paddy on another’s land is a servitude which can beacquired by prescriptive user. See Tikiri Appu v. Dingirirala Whatis prescribed for by long user is not the ground on which paddy isthreshed but the incorporeal right of servitude.
The evidence led by the defendants shows that the plaintiff was notthe only person who threshed paddy on lot X and the Commissioner hasfound that a portion of lot X was possessed by the defendants’ lessees.[ dismiss the appeal.
Appeal dismissed.
• 36 N. L. R. 267.
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