MOHAMED HAMZA

Vs.

ROAD DEVELOPMENT AUTHORITY
AND OTHERS

SUPREME COURT
SISIRA J DE ABREW.J
UPALY ABEYRATHNE. J
ANIL GOONARATNE. J
SC/Appeal/13 5/2015
SC/HCCA/LA/16/2015
WP/HCCA/CPL/59A/2014 (F)
DC/Colombo No. DLA/00048/09
23.09.2016

Deposit Note- Journal Entry - Acqusition of Land- Section 33 Land Acqusition Act- Compensation - Deposit in Court-Sec 10(2) of Land Acqusition Act-Res In Corporalis

Director (Lands) Road Development Authority (Plaintiff) filed action in the District Court of Colombo. He had sought a deposit note to deposit Rs. 5,775,000/-to the credit of the case. Application made upon a letter of the Acquiring officer's office. The said amount was deposited in the NSB Pettah Branch.

Plaintiff petitioner Appellant made an application to the District Court seeking an order to release the above sum of money to the Appellant and 2nd to 6th Respondent - Respondent- Respondent in proportion to share allocated in final partition decree in Case No. 18813/P. After inquiry District Court dismissed the case. An Appeal preferred to the High Court was also dismissed. Supreme Court granted leave.

The Appellants and 2nd to 6th Respondent claimed compensation on the basis of final decree in the partition suit whereas lot 7 of the final partition plan had been allocated as an allotment of land marked for acqusition by the state for road widening and alloment allocated in common to petitioner and 2nd to 6th Respondent. Soil rights ownership remains with the parties.

HELD:

01. If a person unlawfully claims a servitude over land or claims greater rights under the servitude than it actually comprises, the owner of land may bring action against him, known as action negatoria, for a declaration that his land is free from the servitude claimed, or free from the excessive burdens as the case may be.

When I consider the facts relevant to the case in hand in the light of the above basis, I am of the view that the ownership of lot 7, at the time relevant to the matter in question of this case, remained on the Appellant and the 2nd to 6th Respondents. Hence the Appellant and the 2nd to 6th Respondents, as owners of lot 7, are entitled to the claim set out in the Petition preferred to this court on 08.01.2015. Hence I answer the said questions of law in favour of the Appellant. Accordingly, the judgemnet of the High Court of Civil Appeal holden in Colombo dated 01.12.2014 and the order of the learned District Judge dated 30.04.2014 is hereby set aside.

APPEAL from the judgment of the Civil Appellate High Court.

Cases referred to :-

1. De Kock Vs. Hanel & Others 1999 (1) SA 994
2. R.W. Lee in his "AN INTRODUCTION TO ROMAN _ DUTCH LAW (5th Edition)
3. Wille's Principles of South African Law (9th Edition) 616
1. Faiz Musthapa PC with Hussain Ahamed for the Petitioner Appellant
2. Ashoka Siriwardena for the Plaintiff Respondent - Respondent

Cur.adv.vult

JUNE 15, 2017
UPALY ABEYRATHNE. J.

The Director (Land) of the Road Development Authority, 3rd Floor, Sethsiripaya, Battaramulla, has instituted the said action bearing No. DLA/00048/9 in the District Court of Colombo. According to the Journal Entry 01, the Director (Land) being the plaintiff has sought to issue a Deposit Note enabling him to deposit a sum of Rs. 5,775,000/- to the credit of the case. Said Journal Entry indicates that the said application has been made upon a letter of the Acquiring Officer, Land, bearing No. RDA/LA/CO/MAT/8917/2 dated 30.07.2009. The said letter of the Acquiring Officer has not been produced with the appeal to this court by the Petitioner-Petitioner Appellant (hereinafter referred to as the Appellant). As seen from Journal Entry No. 3 a sum of Rs.5,775,000/- had been deposited in the National Savings Bank, Pettah Branch. The Appellant has not produced the letter referred to in J.E. 3, with the appeal to this court in order to ascertain whether the amount sought to be deposited had been d