Fernando Et Al., V. Arnolis

1931

Present: Lyall Grant and Drieberg JJ.

FERNANDO et al. v. ARNOLIS.

346- D. C. Kalutara, 14,495.

Servitude-Right of way-All co-owners of servient tenement necessary parties- Owner of intervening land-Civil Procedure Code, ss. 18 and 33.

In an action for a declaration of a light of way all the co-owners of the servient tenement are necessary parties.

When the owner of an intervening land denies the existence of the right of way over his land, he should be made a party to the action.

APPEAL from a judgment of the District Judge of Kalutara.

N. E. Weerasooria, for the defendants, appellant.

M. T. de S. Amarasekera, for the plaintiffs, respondent.

April 30, 1931. DRIEBERG J.-

This is an action by the respondents to obtain a declaration of a right of way 10 feet wide for carts over the appellants' land Delgahawatta to the high road. The respondents claim this as the owners of Ambalanduwalanda, to which they are entitled on a partition decree in D. C. Kalutara, No. 4,409, and a deed No. 2,849 of June 13, 1917. Between their land and Delgahawatta is Ambalanduwakurundewatta owned by Hendrick. The appellants denied the right to a cart way but admitted that the respondents were entitled to a footpath over their land.

In their answer, the appellants took the objection that there were several other co-owners of Delagahawatta and that the action could not be maintained unless they were made parties ; an issue was framed on this point ; the trial Judge did not treat it as a preliminary issue and rule on it as he should have done, but tried the case on all the issues framed and gave judgment for the respondents.-He held that it was not necessary for the respondents to join the other co-owners of Delgahawatta.

It is admitted that there are other owners of Delgahawatta. The first respondent said that the first appellant and his brothers possess the whole of Delgahawatta. The respondents called one other co-owner who said he owned 1/32 of the land and he admitted the right of way claimed. The first respondent said that the first appellant was the only one who denied his right.

The first appellant stated, and this has not been challenged, that the members of his family own a half share of Delgahawatta., he himself being entitled to 1/8,

and that the other half share is owned by 10 or 15 people. The appellants' objection should have been upheld and the respondents should have been ordered to make the other co-owners parties before proceeding to trial. A judgment declaring a land subject to such a servitude as this is a judgment against the land and it is therefore necessary that all the owners of it should be parties to the action. If this judgment stands, it is possible that in a subsequent action brought against other co-owners the respondents may fail to obtain a declaration of a right of way ; this will be an impossible condition and it could not be said of the first judgment that it binds the land, which it must do if it declares the existence of the servitude. Referring to the action to obtain a declaration of a servitude, the actio confessoria, Maasdorp says.

The action will in any case lie against the latter (i.e., the owner of the servient tenement) and if there are several joint-owners, all will have to be joined. In fact, the declaratory action should properly be brought in the form of a real action against the possessor of, and all persons claiming any real right to, the alleged servient tenement, to have the servitude declared in favour of the dominant tenement and to have the possessors and occupiers of the servient tenement interdicted from interrupting the enjoyment of the servitude. (Institutes of Cape Law, 2nd ed., vol. II., p. 229.)

Nathan says that-

Generally this action lies against the owner of the servient tenement ; and, if there are two or more owners against each of them for the whole servitude (in solidum). (Common Law of Sout

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