Present: Dalton J.     1929.

FERNANDO v. FERNANDO.

20-C. R. Chilaw, 22,727.

Right of way-Claim over three separate lands-Partition decree in respect of one land without conserving the right-Extinction of servitude.

Where the plaintiff claimed by prescription a right of way from his land to the high road across three lands, owned severally by the defendants, and where a partition decree had been entered in respect of one of the servient tenements without the decree conserving the right of way,-

Held, that the right of way was extinguished.

A way of necessity is limited to the absolute necessities of the case.

THE plaintiff claimed a right of way by prescription from his land, Bogahawatte, over three lands to the Colombo-Chilaw high road. In the alternative he claimed a cart way of necessity. The land immediately to the west of Bogahawatte was owned by first to tenth defendants; then intervened the land belonging to the twelfth defendant, and the land between it and the high road belonged to the heirs of one Domenico Fernando. The first to tenth defendants and the eleventh and twelfth defendants by their answer denied that the plaintiff exercised any right of way. It was further contended by the defendants that by virtue of the partition decree entered in D. C, Chilaw, No. 6,598 on February 25 in respect of one of the servient lands, in which no right of way was reserved, the right of way claimed by the plaintiff was extinguished. The Commissioner of requests held that the plaintiff had established a right of way by prescription and gave judgment accordingly.

H. V. Perera (with Rajapakse and Weerasooria), for first to tenth defendants, appellants.

Zoysa, K.C. (with Croos da Brera and Amerasekera), for plaintiff, respondent.

August 21, 1929. DALTON J.-

The plaintiff in this action claimed a right of way, as the owner of a land called Bogahawatte, over three lands (called below X, T, and Z) to the west of Bogahawatte to the Colombo-Chilaw high road as depicted in plan PX of January 11, 1927. The action was commenced on September 14, 1926. He claimed that he and his servants had used this cart way for a period of over ten years

adversely to all others and had obtained a prescriptive title thereto. DALTON J. In the alternative, as he says he has no other means of ingress and egress, he claimed the cart way as a way of necessity. According to the plaint the land immediately to the west of Bogahawatte is owned by the first to tenth defendants (I will call "their land X).; then comes the land (land Y) of the eleventh defendant, and between the latter and the high road is a land (land Z) belonging to the heirs of one Domenico Fernando, who, Counsel states, are first to fourth defendants. It was disclosed by 11th defendant in his answer that the land Y belonged to his wife Maria Perera, and she was made 12th defendant. This land it is stated has since action was brought been purchased by plaintiff's brother, and he is made an added defendant. The 1st to 10th defendants and the 11th and 12th defendants by their answers denied that plaintiff had any right of way and asked that his action be dismissed. The added defendant, who had purchased the 12th defendant's interests on October 4, 1927, stated he had no objection to plaintiff being declared entitled to the right of way claimed. When the case came on for hearing the 6th defendant alone appeared to contest the claim. All the 1st to 10th defendants had the same Proctor, and the 6th defendant presumably acted as representing them, since they are all appellants in this appeal.

The right of way claimed is the road marked A, B, C, D on the plan PX filed, A being the point on the high road and D the point on plaintiff's boundary. The first issue in the case was as to whether plaintiff and his predecessors in title had acquired a prescriptive right to this road, and the answer of the Commissioner is in the aff