WANIGASOORIY A vs DANAWATHIE AND OTHERS

WANIGASOORIY A
vs
DANAWATHIE AND OTHERS

COURT OF APPEAL
ABDUL SALAM. J
CA 658/04 (F)
DC KULIYAPITIYA 12417/99
NOVEMBER 12, 2007

Permissive access given - Plaintiff unable to protect cultivation - Alternate access available - Prescriptive title? - Roadway used for over 50 years - Rights adverted to the plaintif1? - Right of servitude - Proof - Way of necessity.

The plaintiff-appellant filed action alleging that her father had permitted the defendants predecessor to have access to his land, over and along the land of the plaintiff, and sought a declaration to close down the road, and further alleged that the defendant has alternate way. The defendant-respondent contended that, the roadway in question had been used by him over a period of 50 years and moved for a dismissal of the action. The trial Court held with the defendant-respondent.

Held:

(1) The judgment does not support even by a stretch of imagination that the defendants used the right of way for a long period of time exceeding 50 years adverse to the rights of the plaintiff, but merely states that they had used their path.

The judgment does not identify the use being adverse to the rights of the plaintiff on a title ten years immediately preceding the institution of the action.

The consequence of this finding would be that according to the trial Judge the defendant. had not acquired any prescriptive rights to the roadway.

(2) It is quite clear that the trial Judge has erred in not appreciating that there was lack of evidence regarding the acquisition of a right of way of necessity.

APPEAL from the judgment of the District Court of Kuliyapitiya.

Cases referred to:-

1. Brampy Appuhamy vs. Gunasekara 50 NLR253 at 255

2. De Soysa vs. Fonseka - 58 NLR501

Collin Amarasinghe with Roland Munasinghe for plaintiff-appellant

N. R. M. Daluwatte PC with Gaithri de Silva for defendant respondent

May 11,2009

ABDUL SALAM, J.

This is an appeal from the judgment of the learned additional district Judge of Kuliyapitiya, dismissing the action of the plaintiff-appellant (hereinafter referred to as the "plaintiff').

The background to the appeal briefly is that the plaintiff . filed action against the defendant-respondents (hereinafter referred to as the "defendants") alleging that the father of the plaintiff permitted the defendant's predecessor in title to have access to his land, over and along the land of the plaintiff. The plaintiffs position is that the said permissive access given to the defendants and their predecessors has resulted in a division of her land and therefore she is unable to protect or improve her cultivation. The plaintiff further averred in her plaint that alternative access is available to the defendants to avoid such a division of the land and defendants by not using the alternative way have caused damages to her in a sum of rupees 3500/- per month.

The defendants whilst admitting the ownership of the plaintiff to the land in question claimed that the roadway had been used by them over a period of 50 years and moved for a dismissal of the plaintiffs action.

At the commencement of the trial paragraphs 1, 2 and 3 were admitted by the defendants, Paragraph 1 of the plaint

deals with the situation of the land and as to the places where the defendants resided. Paragraph 2 of the plaint deals with the ownership of the plaintiff to the subject matter along which the defendants were using the roadway. Paragraph 3 of the plaint deals with the manner in which the plaintiff became the owner of the subject matter over which the defendants are using the alleged permissive roadway.

The material facts and the law on which the parties were at variance included as to whether defendants Were permissive users of the road in question and whether the plaintiff is entitled to close down the road, since the defendants have an alternative roadway to gain access to their lan

Click Here to Read the rest of this document