Gunasekera V. Rodrigo Et Al.,

Present: Fisher C.J. and Garvin J.

GUNASEKERE v. RODRIGO et al.

249-D. C. Colombo, 24,167.

    Prescription-Right of way over two lots-Extinction of portion by partition decree-Determination of right of way-Sale in execution-in favour of Crown-The doctrine of relating back-Civil Procedure Code, s. 289.

Plaintiff claimed a right of way by prescription over two lots of land, C and B, belonging to the defendants. After adverse use for over thirty years a partition decree was entered in 1909 in respect of lot C without a reservation of the right of way. In 1518 lot B was sold in execution and purchased by the Crown. The Fiscal's conveyance was not issued in favour of the Crown till 1920.

Held, that the entire right of way was determined by the partition decree entered in respect of lot C, but that the plaintiff had, since the decree, re-acquired a right of way over C by prescription.

Held further, that the prescriptive title maturing in favour of the plaintiff since 1909 in respect of lot B was not extinguished by the conveyance in favour of the Crown.

Per GARVIN J.-The fiction that upon the confirmation of the sale and the execution of the Fiscal's conveyance the title is deemed to vest from the date of sale has for its object the protection of the purchaser at a sale in execution against the consequences of alienation of the property by the judgment-debtor in the interval. It does not affect the rights of persons claiming adversely to the judgment-debtor nor interfere with the operation of the law of prescription.

APPEAL from 'a judgment of the District Judge of Colombo. A The facts are summarized in the headnote and are fully stated in the judgment of Garvin J.

H. V. Perera (with Rajapakse), for plaintiff, appellant.

Keuneman (with Kocy and Canakaratne), for first defendant, respondent.

February 22, 1929. FISHER C.J.-

I have had the advantage of reading the judgment of my brother Garvin, with which I agree.

I think it very probable that had the learned Judge taken the date of the decree in the partition action, namely, July 12,1909, as the crucial date for consideration instead of the date of the certificate, March 24, 1910, he would have come to a decision in favour of the

plaintiff. In view of the fact that the right of way claimed is based 1929 on a grant and that it was in fact used for a period of something over forty years, and, to use the words of the learned Judge, " that this path that is claimed was used up till 1919 at the latest," I think there should have been very definite and specific evidence to show that the user was put an end to prior to July 12,1919. In my opinion there was no such evidence, and I, therefore, agree that judgment should be entered as proposed by my brother Garvin.

GARVIN J.-

This was a claim for a declaration that the plaintiff was entitled to a right of way from his premises marked " A " in the plan " X " filed of record along the line shown on that plan over the lots marked C and B to the Alutmawata road,

 The lot A, B, and C shown on the plan were originally held and possessed by the common predecessor in title of those who now claim these three lots.

This person conveyed the lot A to a predecessor of the present plaintiff reserving to the transferee a right of way over the rest of his premises to the Alutmawata road.

The learned District Judge has found, and there is ample material to support his finding, that subject to slight deviations which were doubtless made for the accommodation of the owners of lots B and C the owners for the time being of lot A have claimed and enjoyed a right of passage to the Alutmawata road for very many years.

It would seem that in the year 1909 there was a partition decree entered in respect of the southern portion of the lot C. Decree for sale was entered on July 12, 1909. There was no reservation of a right of way. It is, therefore, contended that the rig

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