Fernando Et Al. V. Fernando Et Al.

Feb.23,1911   Present: Hutchinson C.J. and Middleton J.

FERNANDO et al, v. FERNANDO et al.

357-D. C. Colombo, 29,866.

Possessory action by members of the Dhoby community residing at Polwatta for the time being-Servitude-Right to dry clothes on another's land.

Plaintiffs, who are members of the Dhoby community, residing. for the time being at Polwatta, averred that they have been for more than a year and a day before ouster using the land in dispute for drying clothes thereon, and prayed for a possessory decree.

Held, that the plaintiffs were not entitled to a decree, as the possession was not of ut dominus.

Hutchinson C.J.-I do not think that the right claimed is a possible one. If it is, the ownership of this land changes from time to time as the dhobies of Polwatta move about-a dhoby becomes one of the co-owners by coming to live there and ceases to be one by going away.

There is no such servitude as that of drying clothes on the land of another.

THE facts are fully set out by Hutchinson C.J. in his judgment as follows: -

" This is a possessory action. The plaintiffs say in their plaint that they are members of the Dhoby community residing at Polwatta, and that for more than a year and a day before the grievance complained of they had been undisturbedly and uninterruptedly using the land marked A and C on the plan Y, No. 775, filed with the plaint, for the purpose of drying clothes thereon, and had also been in possession of it; that on June 12, 1909, the defendants forcibly and wrongfully entered on A, and, similarly, on June 22, 1909, entered on C, and have since those dates been in forcible and unlawful possession of A and C, and preventing the plaintiffs from entering on them and drying clothes thereon; and they claimed possession and damages.

" The defendants answered: (1) That the plaint is bad for , misjoinder of plaintiffs and of causes of action; (2) that the rights claimed are in consistent in character; (3) that no such right or servitude as that of drying clothes on land not belonging to oneself is known to the law; (4) that A and C and the land adjacent on the north formed one land, and were owned and possessed by the defendants in common, and were on February 3, 1908, partitioned between them, and that by deed of October 6,1908, A and C were allotted to the second defendant, who is now the owner of them, and has also acquired title to them by prescription."

The issues settled were: (1) Had the plaintiffs at the dates of the alleged ouster possession of A and C ? (2) Had they at those dates a quiet and undisturbed possession of the right of drying clothes on A and C ? (3) Were they ousted on the dates alleged ? (4) Is there misjoinder of plaintiffs and causes of action ? (5) Can they claim such a servitude as that of drying clothes on the land of another ?

The learned District Judge (Allan Drieberg, Esq.) entered judgment for the plaintiffs. The defendants appealed.

Bawa, for the appellants.-The action must fail for misjoinder of parties. How can the plaintiffs sue without joining all the alleged co-owners ? A right to dry clothes is not a servitude known to the Roman-Dutch law. The plaintiffs never had possession ut dominus; the mere user of the land to dry clothes is not possession ut dominus.

A. St. V. Jayewardene (with him Batuwantudawe), for the plaintiffs, respondents.-Section 17 of the Civil Procedure Code enacts that misjoinder is not to defeat an action. (Chief Justice.-Is the right which you claim known to the Roman-Dutch law ?) The question as to the nature of the right need not be ascertained. This is a possessory action, and the only question is whether the plaintiffs were in possession ut dominus. (Middleton J.-Is the right to dry clothes a right of dominium ?) The plaintiffs used the land for all purposes for which they required it; they went to the land, planted poles, and dried clothes. (Middleton J.-You could not sell your

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