De Silva V. Nonohamy Et Al.,

1932 Present: Macdonell C.J., Garvin S.P.J., Dalton J. and
Jayewardene A.J.

DE SILVA v. NONOHAMY et al.

356-D, C. Galle, 27,260.

Right of way-Claimed over several lands-Obstruction by owner of one land- Joinder of owners of intervening lands-Roman-Dutch law-Civil Procedure Code, s. 18.

Per MACDONELL C.J., GARVIN S.P.J., and JAYEWARDENE A.J. (DALTON J. dissenting):-

Where a person who claims to be entitled to a right of way which traverses a number of contiguous lands is obstructed and disturbed in the enjoyment of his rights by the owner of one of these lands, an action brought by him against the wrong-doer for a declaration of his right and damages, is not badly constituted because the owners of all the intervening servient tenements are not joined as parties.

Where, it appears that the owner of an intervening land denies the right of way the Court may, in exercise of the powers vested in it by section 18 of the Civil Procedure Code, add the said owner as a party to the action.

THIS was an action in which the plaintiffs claimed a right of way for carts from their land to the Gansabhawa road. They stated that the defendant obstructed the cart-way when it passed over his land. Between the plaintiffs land and that of the defendant's the cart-way passed over several lands. Three questions were submitted for the opinion of the Court by Drieberg and Akbar JJ.: -

(1) It is necessary that a plaintiff should in all cases join as parties to the action the owners of all the intervening lands.

(2) Or is the action properly constituted without their being made parties, it being left to the Court of its own motion or on the application of the plaintiff or the defendant to make the owners of the intervening lands parties to secure the objects stated in sections 18 and 33 of the Civil Procedure Code.

(3) Or is a plaintiff entitled to proceed against the defendant alone even when it appears in the course of the proceedings that the owner of the intervening land denies the right of way. Gratiaen (with him Ameresekere), for defendant, appellant.-Where a servitude is claimed over a servient tenement not adjacent to the dominant tenement it must be shown that the intervening tenements are subject to the same servitude (Voet VIII., 4, 19). Once a servitude has been acquired, there really results one servitude over several servient tenements. That servitude is one and indivisible (Gunasekera v. Rodrigo 1[30 N. L. R. 468.] Fernando v. Fernando 2[31 N. L. R. 107.] ). Where the servitude is extinguished with regard to one of the intervening tenements the whole servitude is extinguished. The right of the dominant owner is an indivisible right to pass

over the lands of all the intervening owners and not piecemeal over the lands of each one. Correspondingly there is an indivisible obligation on the part of the owners to allow his rights. An indivisisible obligation can be discharged only by all the co-obligees. Pothier Vol. I., 172, illustrates this by the case of a servitude. In this case plaintiff must show that he has a right to go up to defendant's land and, when he has crossed it, to the road. He cannot establish his right to part of a servitude. Suppose the plaintiff gets a declaration of his servitude against the defendant and subsequently the servitude is declared non-existent as against another of the intervening owners?

Rajapakse (with him Abeysekera and Rajakaruna), for plaintiff, respondent.-The question for decision is not one of substantive law but of procedure. Section 5 of the Civil Procedure Code defines a cause of action. Section 14 refers to persons who must be made defendants. Plaintiff has no cause of action against the intervening owners. He can claim no relief against them. The question must be decided solely with reference to section 14. Why should plaintiff be unnecessarily cast in cost against intervening owners who do not resist his clai

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