WIMALAWATHIE AND ANOTHER

WIMALAWATHIE AND ANOTHER

Vs.

DHARMADASA

COURT OF APPEAL
GOONERATNE, J.
DR. FERNANDO, J.
CA/PHC/123/2008
HC RATNAPURA REVISION/146/2007
MC RATNAPURA 18185
SEPTEMBER 16, 2020

Primary Courts' Procedure Act, No. 44 of 1979, sections 66(1)(b), 68, 69 - Dispute relating to a roadway-Way of necessity-Does the claimant need to prove exercise of the right for 10 years?

The respondent filed an information in the Primary Court under section 66(1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979, seeking

a declaration that he is entitled to a four-foot-wide roadway over the appellants' land. He stated the road was the only means of access to his land and that he had acquired prescriptive title by using it for over ten years. He further stated that the appellants had obstructed the road and an imminent breach of the peace was threatened or likely due to the dispute. The appellants filed their affidavits stating inter alia that the respondent was entitled to a separate road reservation under a partition decree and the respondent had never used a roadway over their land. The Primary Court held that the respondent was not entitled to a declaration under section 69 of the Primary Courts' Procedure Act since the respondent had not continuously used the road in dispute for the prescriptive period of 10 years but only for a period of three years prior to the dispute. In revision, the Provincial High Court set aside the order of the Primary Court and declared that the respondent is entitled to use the roadway until an order is made by a competent civil court. The appellants appealed to the Court of Appeal.

Held:

1. The dispute between the respondent and the appellants relates to a right to land other than the right to possession of such land, and therefore section 69 of the Primary Courts' Procedure Act applies.

2. For a declaration to be made under section 69, there must be proof either that (i) the claimant has acquired the disputed right or (ii) the claimant is entitled, for the time being, to exercise that disputed right.

3. The evidence revealed that even though the respondent had been entitled to a separate right of way under the partition decree, that right of way had been completely washed away by an earth slip around three years prior to the dispute and, ever since, the respondent had exercised the right of way over the appellants' land as a way of necessity.

4. This is sufficient to establish that the respondent had enjoyed a right in the nature of a servitude of a way of necessity and thus is entitled for the time being to exercise such right and use the disputed roadway until he is deprived of such right by a court of competent jurisdiction.

5. The Magistrate erred in holding that the respondent was not entitled to a declaration under section 69 due to not having used the disputed roadway for the prescriptive period of 10 years.

Cases referred to:

1. Ramalingam v. Thangarajah [1982] 2 Sri LR 694
2. Kandiah Sellappah v. Sinnakkuddy Masilamany (CA/425/80, CA Minutes of 18.03.1981)
3. Ananda Sarath Paranagama v. Dharmmadhinna Sarath Paranagama and others (CA/PHC/APN/117/2013, CA Minutes of 07.08.2014)
4. R. Malkanthi Silva v. L.G.R.N. Perera (CA/PHC/78/2008, CA Minutes of 23.03.2010)

APPEAL from the Judgment of the High Court of Ratnapura.

Nuwan Bopage with Ravikara Pinnaduwa for the Respondent-Respondent-Appellants.

Migara Doss with Kulani Ranaweera for the Petitioner-Petitioner-Respondent.

cur. adv. vult

November 23, 2020.

DR. FERNANDO, J.

Introduction

This is an appeal from the judgment of the learned High Court Judge of Ratnapura dated 11.11.2008. By that judgment, the learned High Court Judge of Ratnapura revised the order dated 05.11.2007 of the learned Additional Magistrate Ratnapura and declared that the Petitioner-Petitioner-Respondent is entitled to use the roadway in dispute until an order or decree is made by a court of competent jurisdiction.

Affidavits of the Parties

T

Click Here to Read the rest of this document