Present : Bertram C. J. and Schneider J.

 PERERA v. SAMARAKOON.

417-D. C. Colombo, 1,912.

Servitude-Owner of the dominant tenement acquiring an interest in the servient tenement-Is servitude extinguished ?-Admission on a point of law in the District Court-Is party making the admission bound by the admission in the Appeal Court ?

One of the owners of the dominant tenement does not lose his servitude over the servient tenement by acquiring an interest in the latter.

" An erroneous admission of counsel on a point of law has no effect, and does not preclude the party from claiming his legal rights in the Appellate Court."

THE facts are set out in the judgment of the District Judge (H. A. Loos, Esq.) :-

The plaintiff sues the defendant for a declaration that he is entitled to a right of way for carte and other vehicles over the defendant's lands Balawalakanatta and Haminewatta from the Gansabhawa road on the south to his (plaintiffs) fields on the north of the defendant's lands, along the track marked XXX shown in the sketch P filed with the plaint.

He states that under and by virtue of the deed Not, 2,703 dated December 9, 1919, he became entitled to an undivided two-sevenths part of the land called Haminewatta and to an undivided two-sevenths of half share of the land called Balawalakanatta, and that in lieu of the said shares of those two lands, he, by arrangement, Has been in possession of a divided portion of the land called Haminewatta, in extent about 3 roods, and depicted as lot C in the sketch P referred to above.

He states that the defendant is also a part owner of those two lands, and is in possession of a defined portion towards the south of his land, in extent about 1,1/2} acre, and depicted as lot D in the sketch.

The plaintiff alleges that he and his predecessors in title had for upwards of thirty years been using the right of way already referred to through the defendant's portion, and have acquired a title by prescription thereto, but that on or about March 26, 1920, the defendant obstructed that right of way by putting up across it two barbed wire fences at the points marked Y and Z in the sketch P to his loss and damage of Rs. 50 per annum.

The defendant admits that the plaintiff is entitled to certain undivided shares in the two lands in question, but denies that by arrangement he is in possession of a divided portion of Haminewatta in lieu of those shares.

He admits that he is entitled to an undivided interest in those two lands, but denies that he is in possession of a defined portion as alleged by plaintiff.

He denies that the plaintiff and his predecessors in title have been  using the track XXX for thirty years, and that they have acquired a right of way by prescription. He states further, that to the east of the track claimed by the plaintiff there is a footpath leading to the fields on the north, and furthermore, that there is a cart road along the western boundary of the said lands.

He denies that he obstructed the right of way referred to, and as a matter of law, he pleads that the plaintiff cannot "maintain this action, inasmuch as he is a co-owner of the lands over which he claims the servitude.

The parties went to trial upon the following issues:-

(1) Is the plaintiff entitled to a right of cart way by prescription along the track shown in plan No. 1,743 made by J. Rodrigo ?

(2) What damages, if any;' is plaintiff entitled to ?

(3) Is the plaintiff entitled by prescription to lot A in plan No. 1,743, or is he entitled to the undivided shares set out in paragraph 2 of the plaint ?

(4) If the plaintiff is entitled to the undivided shares set out in the second paragraph of the plaint, can he claim a servitude over the land held in common ?

It was agreed that the damages, if any, should be assessed at Rs. 5 per annum.

It was also admitted by plaintiff a counsel that no servitude is possible over the land if the plainti