FERNANDO AND OTHERS

VS.

FONSEKA AND OTHERS

SUPREME COURT
MALALGODA, J.
FERNANDO, J.
AMARASEKARA, J.
SC/APPEAL/129/2014
SC/HC/CALA/25/2014
WP/HCCA/GAM/143/2008/F
DC NEGOMBO 4807/L
JUNE 27, 2019

Servitude of right of way-Way of necessity-Actio confessoria-Prescription as a mode of acquisition-Dominant and servient tenement-Precise identification of the right of way-Abandonment of the right-Alternative road

The plaintiffs filed this action against the defendants in the District Court seeking a declaration of a right of way over a 10 feet wide road on the western boundary of the defendants' land on the basis of prescriptive use and/or as a way of necessity. The defendant sought dismissal of the action. The District Court held in favour of the defendant and on appeal the High Court affirmed it. The plaintiff came before the Supreme Court.

Held :

1. The plaintiffs' action is actio confessoria since they assert a right of way by prescription as well as necessity.

2. The existence of a dominant and servient tenement is crucial in establishing a servitude of a right way. The plaintiff shall file the action against the owner of the servient tene