Fernando Et Al., V. Dona Maria Et Al.,

1930

Present: Dalton J.

FERNANDO et al. v. DONA MARIA et al.

175-C. R. Kalutara, 11,796.

Servitude-Right of way over several contiguous lands-Owners of all servient tenements- Necessary parties.

Where an action is brought to" vindicate a right of way over several contiguous lands it is necessary to join the owners of all the servient tenements over which the right of way is claimed.

APPEAL from a judgment of the Commissioner of Requests, Kalutara.

Ameresekere, for defendants, appellant.

Hayley, K.C. (with him F. C, Perera), for plaintiffs, respondent.

December 11, 1930. DALTON J.-

The plaintiffs, husband and wife brought this action for a declaration of a right of cart way from the Galle-Colombo high road, across four pieces of land marked lots 1 to 4, to their premises as shown on the plan PI produced in the case. In addition they claimed an injunction and damages.

The defendants are owners of lot 3, the plaintiffs themselves owning lot 2, the owners of lots 1 and 4 are not parties to the action, but some of them have been called as witnesses for the defence and they deny any right of way to plaintiff for carts across their land.

Plaintiffs plead that they and their predecessors in title have had the uninterrupted and undisturbed use and enjoyment of this cart way for a period of over ten years, and they say that on March 22, 1929, the defendants obstructed the cart way by planting coconuts and putting up a fence on the road at the entrance to and exit from their land lot 3.

The defendants admit that the plaintiffs are entitled to a right of way by a footpath, and it is clear from the plan that there are stiles in the fence complained of.

No plea was raised in the answer that the plaintiffs could not maintain the action without joining the owners of lots 1 and 4, although the defendants pleaded that the claim was vague and embarrassing, but this question seems to be raised in the issues which were as follows :-

(1) Are the plaintiffs entitled by prescription to the rights of cart way demarcated in plan P1 of January 20, 1930 ?

(2) What damages, if any, are plaintiffs entitled to ?

(3) Are the plaintiffs entitled to the right of way over the intervening lands marked 1 and 4 ?

(4) If not, would this in any way debar the plaintiffs from maintaining the present action ?

The trial Judge has answered all the issues in favour of the plaintiffs and has amongst other things specifically decreed that plaintiffs are entitled to the right of way over lots marked 1 and 4.

The defendants appeal from the judgment both on the facts and on the law.

With regard to the alleged user as a cart road, there is a considerable amount of evidence led on both sides. After reading it I must admit the evidence for the plaintiffs, so far as it purports to show a continuous and uninterrupted use for a period of ten years, is somewhat meagre. It is not necessary however for me to say that I differ from the trial Judge's conclusion on the first issue, for I have come to the conclusion that, on the case as brought here, the plaintiffs must fail on other grounds.

The plaintiffs are not bringing an action against the defendants merely for an obstruction raised on lot 3. The principal claim set out in their plaints is that they are entitled to a declaration of a right of way across lots, 1 2, 3, and 4 to the main road. The existence of the right of way across lot 3 depends upon the existence of the right across 1 and 4. I leave out lot 2 as it is plaintiff's property. As pointed out in Gunasekere v. Rodrigo [ 30 N. L. R. 468.] in such a case the right is one and indivisible. It is now admitted in the argument before me that in any event the declaration in the decree of a right of way as claimed across lots 1 and 4 could not bind the owners of those properties.

It is not necessary that the servient tenement should adjoin the dominant tenements. An owner may have

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