FERNANDO AND OTHERS

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 tenement. The right of way must be definite and identifiable on the ground. This is necessary to establish the acquisition of a right of way by prescription and also for the execution of the decree.

3. The plaintiffs did not prove that the alleged right of way fell within the defendants' land, which is supposed to be the servient tenement. The plans marked by the plaintiffs show that it fell outside the defendants' land.

 

4. The plaintiffs did not prove adverse use for over 10 years of a roadway over a definite strip of land in the servient tenement belonging to the defendants. The report of the plaintiffs' surveyor does not support the plaintiffs' claim of prescriptive use. On the contrary, the surveyor's report goes to prove that the plaintiffs have abandoned their right of way. Once abandoned, a party cannot be allowed to reclaim it by way of necessity.

5. The plaintiffs have not proved a right of way of necessity. The defendants have proved that there is an alternative road which could be used as a footpath.

Cases referred to :

1. Velupillai v. Subasinghe 58 NLR 385 at 386
2. David v. Gunawathie [2000] 2 Sri LR 352 at 366
3. Hanaffi v. Nallamma [1998] 1 Sri LR 73
4. Karunaratne v. Gabriel Appuhamy 15 NLR 257 at 259
5. Kandaiah v. Seenitamby 17 NLR 29
6. C.R. Mallakkam 16,800 (SC Minutes of 26.01.1909)
7. Fernando v. Fernando 31 NLR 126 at 127
8. Morgappa v. Casie Chetty 17 NLR 31
9. Hendrick v. Saranelis (1940) 17 CLW 87
10. Marasinghe v. Samarasinghe 73 NLR 433
11. Thambapillai v, Nagamanipillai 52 NLR 225
12. Saparamadu v. Melder [2004] 3 Sri LR 148
13. Fernando v. de Silva 30 NLR 56
14. Amarasuriya v. Perera 45 NLR 348 at 350
15. Chandrasiri v. Wickramasinghe 70 NLR 15
16. Paramount Investment Ltd v. Cader [1986] 2 Sri LR 309
17. Dayawathie v. Dias and others [2013] BLR 20

APPEAL from the Judgment of the High Court of Civil Appeal of Gampaha.

S.N. Vijithsingh for the Plaintiff-Appellant-Appellants.

Gamini Hettiarachchi for the 1st and 2nd Defendant-Respondent-Respondents.

cur. adv. vult.

December 18, 2020

AMARASEKARA, J.

The Plaintiff-Appellant-Petitioners (hereinafter referred to as "Plaintiffs" or "Appellants") instituted this action in the District Court of Negombo inter-alia seeking for a declaration of a right of way with regard to an alleged 10 feet wide roadway based on prescriptive user and/or as a way of necessity, and the removal of the obstruction caused to it, and to have free and complete possession to use and enjoy the said 10 feet wide strip of roadway marked as P.Q in a sketch adduced along with the plaint, with a permanent injunction to stop further obstructions. Allegedly, this roadway was situated on the western boundary of the land of the Defendant-Respondent-Resp

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