A.L. Shiran Gooneratne J.

The Plaintiff-Respondent-Appellant (hereinafter sometimes referred to as “the Plaintiff”), by Plaint dated 22/01/1999, filed action in the District Court of Negombo, Case No. 5586/L, seeking inter alia:

a) a declaration of title to the land morefully described in the first schedule to the Plaint.

b) that the said land is held and possessed by the Plaintiff without any encumbrance of a servitude of right of way attached.

c) damages in a sum of Rs. 50,000/- together with continuing damages at the rate of Rs. 5,000/- per month.

The Plaintiff’s claim in brief is that she is the direct and only successor in title to the land in the first schedule to the Plaint which was held and possessed by her on reaching the age of 18 years in October 1990. The Defendant-Appellant-Respondent’s (hereinafter sometimes referred to as the “defendants”) were using a footpath across the said land, having obtained leave and license from the Plaintiff. Later in 1998 the Defendants had unlawfully demolished a toilet constructed by the Plaintiff, widened the foot path to an 8-foot-wide roadway and had forcibly tried to take a vehicle on the disputed road claiming the existence of a 10 feet wide roadway. The Plaintiffs ownership to the land was also disputed.

The Defendants in their answer dated 24/08/2001, inter alia, sought; A declaration that the Defendants are entitled to a servitude of right of way and/ or a right of necessity of a 10 feet wide roadway over the Plaintiff’s land to access the Defendants land morefully described in the second schedule to the Plaint.

In their answer, the Defendants pleaded, inter alia, that they have been using the 10 feet wide roadway over the Plaintiff’s land for more than 10 years and therefore, they have prescribed to the said roadway and also contended the use of the said road by way of necessity.

After the conclusion of the trial, the learned District Judge, by Judgment dated 28/11/2008, granted relief to the Plaintiff as prayed for in the said Plaint. In the said Judgment the learned District Judge dismissed the claim seeking a right of way over the subject matter and also on the entitlement claimed by way of necessity. The learned District Judge granted the said relief on the basis that the case was filed in 1998, the Plaintiff has attained the age of maturity in the year 1990 and therefore, there is no continuous and uninterrupted possession of a minimum of 10 years required from that date, to claim a servitude of right of way by the Defendants.

Aggrieved by the said Judgment, the Defendants appealed to the Gampaha High Court of Civil Appeal seeking, inter alia, to set aside the said Judgment dated 28/11/2008. The learned Judges of the High Court of Civil Appeal by their Judgment dated 07/05/2015 held, inter alia, that the Plaintiff has failed to prove that she is the sole owner of the land in question. The Appeal Court while acknowledging that the Defendant’s entitlement to access their land through the Plaintiff’s land was not granted by their predecessors in title, held that due to necessity, the footpath which was in existence since 1976 had gradually widened to a 10 feet wide road which the Defendants have lawfully possessed and prescribed. The Plaintiffs Appeal to this Court arises out of the said Judgment.

This Court by its Order dated 30/03/2017, granted Leave to Appeal on the questions of law stated in paragraph 17 (a), (b) and (d) and a consequential question of law which was raised on the ground of necessity, on that date. However, when this case was taken up for argument on 27/10/2021, the said consequential issue raised by the Defendants was abandoned and the question of law pleaded in paragraph 17 (d) was amended to read as stated below. Parties consented to the said questions of law, which are reiterated in their written submissions tendered after the hearing -

1. that their Lordships erred in law and in fact in coming to the conclusion that the Defendant-Appellant-Respondents have