Present: Shaw A.C.J. and De Sampayo J.   1920.

APPUHAMY v. WALKER et al.

86-87-D. C. Kurunegala, 7,139.

Misjoinder of defendants-Cause of action-Action by plaintiff for a declaration that no road exists over his land-Assertion by defendants that a cart road existed over plaintiff's land.

Plaintiff sued the two defendants, who were neighbouring estate owners, alleging that they had unlawfully attempted to open a cart road through the centre of his land, and claimed a declaration that no road exists over the land. The defendants filed separate answers denying that they had unlawfully attempted to open the road, and both asserting a right in themselves and in the public to use the road. The first defendant also pleaded that he had been improperly joined with the second defendant in the action.

Held, that there was no misjoinder.

" The two defendants were both asserting before the action, in their pleadings and throughout the course of the trial, a right of way as members of the public to a cart road down the centre of the plaintiff's land. The plaintiff was therefore entitled as against both of them to the same declaration, namely, that there was no public right of cart road along the track contended for."

Lowe v. Fernando1[(1913) 16 N. L. R. 398.] explained.

THE facts are set out in the judgment.

A. St. V. Jayawardene, for appellant in 86 and respondent in 87.

F. de Zoysa, for appellant in 87 and second defendant-respondent in 86.

Keuneman, for first defendant-respondent in 86.

September 27,1920. SHAW A.C.J.-

The plaintiff brought this action against the two defendants, who were neighbouring estate owners, alleging that they had unlawfully attempted to open a cart road through the centre of his land Ambagahagewela, and claimed a declaration that no road exists over the

land. the defendants put in separate answers, both denying that they had unlawfully attempted to open the road, and both asserting a right in themselves and in the public to use the road.

The first defendant also pleaded that he had been improperly joined with the second defendant in the action. The District Judge has dismissed the action as against the first defendant with costs, on the ground that the cause of action against the two defendants are not the same. He has held upon the evidence that there was no permanent road in the position claimed by the defendants until quite recently, and that until two or three years ago carts found their way across plaintiff's field when it was not under paddy cultivation, and along the high land on the east when it was. He has, however, held that the second defendant, like the rest of the public, has a right of way for himself and his carts over the land, but not to any permanent way in the position claimed by the defendants. He has accordingly made a declaration that the second defendant is not entitled to a road as claimed, but has declared him entitled to a cart road along the eastern boundary of the land, to be constructed by him at his own expense, and has ordered the costs between the plaintiff and second defendant to be divided. Nothing is said in the decree about the costs as between these parties, and I understand the judgment to mean that each of these parties, as between themselves, shall bear their own costs. The plaintiff appeals against the order dismissing his action against the first plaintiff with costs, and against the order dividing the costs as between him and the second defendant. The second defendant also appeals against the order declaring him not entitled to a road along the line claimed by him.

In view of the findings of the Judge on the evidence there may be some doubt whether there should have been a decree for a permanent road even along the eastern boundary of the land, but the plaintiff has not appealed from that part of the order. The Judge was probably influenced to make this order by the expression of th