DHANUSEKARA VS. JAYASEKERA AND OTHERS

DHANUSEKARA
VS.
JAYASEKERA AND OTHERS

SUPREME COURT
EVA WANASUNDERA, PC J.
PRIYANTHA JAYAWARDANE, PC J.
ANIL GOONERATNE, J.
SC/APL 50/2015
SCHCCALA NO. 473/2014
WP/HCCA/AV 686/2008
DC PUGODA 300/L
SEPTEMBER 25, 2015

Servitude of a right of way - Applicability of Section 41 - Civil Procedure Code - Definite and precise description of the servient tenement should be described in the plaint? Possession to be explained and exemplified - Is it necessary to bring all the adjacent owners of the road as parties? Rule of indivisibility of servitude ? Prescription Ordinance.

The Plaintiff Respondent Respondent sought and obtained a servitude of a right of way over the Defendant's land. The appeal was dismissed by the Provincial Civil Appellate High Court. The Supreme Court granted leave on;

(a) Was it correct for the Learned District Judge and for the Honourable Judges of the High Court of Civil Appeals to hold that the Plaintiff Respondent is entitled to a right of way when the servient tenement is not described in the plaint ?

(b) Did the Learned District Judge and the Honourable Judges of the High Court of Civil Appeals err in law in allowing a right of way along the strip of land depicted in 4 where it appears that several intervenient lands exists and owners of those lands were not made parties ?

(c) Do the impugned Judgment of the District Court marked A-12 and the High Court of Civil Appeals marked 'F' offend the rule of indivisibility of servitudes?

(d) Did the Honourable Judges of the High Court of Civil Appeals err in determining the appeal without hearing the counsel for the 1st

Defendant Appellant without following the provisions of Section 769(1) of the Civil Procedure Code.

Held:

(1) The extent in plan relied upon by the Plaintiff and in the Plaint - differ Plan gives no indication of a servient tenement but the plaint stales that the Defendants are owners of the servient tenement Plan docs not refer to the disputed portion of the road. In a land case the plaint should necessarily refer to the metes and bounds of the land in dispute by reference to a map or survey plan in compliance with Section 41 of the Civil Procedure Code.

(2) The dominant tenement, servient tenement or tenements and the right of way claimed should be pleaded with necessary metes and bounds. The dominant tenement need to be described and identified correctly Servient tenement over which the road runs have not been described in the Plaint. Requirement of Section 41 has not been fulfilled.

(3) The servitude of a right of way is one and indivisible, it must exist at each and every point of the road way Plaintiff has not proved the servient tenement at the point where the gate is shown, as such the servitude will disappear at every point of the roadway.

(4) When a witness giving evidence of prescriptive possession stales "I Possessed" or "We possessed", the Court should insist on those words being explained and exemplified.

Per Anil Gooneratne, J.

"It may not be necessary to bring all the adjacent owners to the roadway into the case even if the Law contemplate of each of the contiguous lands is a servient tenement and the law lays down that the owner or owners of is such tenement is under a duty to permit the free exercise by the owner of owners of the dominant tenement of his right of way."

Appeal from the Judgment of Provincial Civil Appellate High Court Avissawella.

Cases referred to:

1. David Vs Gnanawathie 2000 2 SLR 353.
2. Juliana Hamine Vs. Don Thomas 59 NLR 546
3. Alwis Vs Perera
4. De Silva Vs. Nonahamy 34 NLR 113 at Pg. 115.

Padmasiri Nanayakkara with Thilakshi Alahakoon and Ms. Anudi Nanayakkara for the 1st Defendant Appellant.

Damitha Karunarathne for the Plaintiff Respondent Respondent.

Cur.adv.vult.

February 18, 2016.

ANIL GOONERATNE. J.

This was an action filed in the District Court of Pugoda for a declaration that the Pla

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