Thamboo V. Annammah Et Al.,

1934 Present: Macdonell C.J.

THAMBOO v. ANNAMMAH et al.

98-C. R. Jaffna, 965.

    Servitude-Co-owners-Partition of land by deed-Lone reserved for common use-Sale of lot by one co-owner-No title to right of way.

Where a land held in common was partitioned by deed among the co-owners, a strip of land being reserved for their common use as a lane giving access to the several lots ; and where one of the co-owners sold a portion of his lot together with " the right accruing thereto in the lane reserved for common use as a thoroughfare "-

Held, that the conveyance did not give title to any portion of the soil of the lane or to a right of way over it.

A co-owner cannot grant a servitude over the common property without the concurrence of the other co-owners.

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

J V. Nadarajah, for defendants, appellants.

S. Subramaniam, for plaintiff, respondent.

Cur. adv. vult.

November 8, 1934. MACDONELL C.J.-

The points of law in this case are best introduced by a description of the piece of land giving rise to them. This piece of land was bounded on the east by a road, and it extended thence westward and then made a right angle to the south. Its owners partitioned it by deed No. 19,231 of May 17, 1926, by which they severally took lots numbered 1 to 8 but reserved as property in common a strip of land as a lane giving access to the several lots. This strip reserved as a lane ran from the high road on the east towards the west keeping south of lots 1 to 4, after which it made a right angle to the south having lots 5 to 8 opening into it there. At the elbow making a right angle to the south, the partitioned land impinged on another piece of land called A to the west of and quite distinct from it, and owned by a person or persons other than the partitioners under deed No. 19,231, but with one corner abutting on the elbow of the lane which those partitioners had retained in common, Westward again of this lot A was a lot C owned, it and the house on it, by plaintiff as his residing land.

Plaintiff had bought in 1922 an undivided half share of A, the land to the east of his residing land C; he thus became co-owner of a land abutting on the common lane of the partitioners. One of these partitioners, Jacob, entitled under the deed No. 19,231 to a quarter of the land partitioned had received as his share lot 8 of 7 lachams in the southern extremity of the land partitioned and lot 2 of 3 lachams towards the eastern end of that land. To get to Jacob's lot 2 from the high road on the east, you would only have to go a short distance along the common lane, well short of where the lane, making its elbow, abuts on lot A. In 1927, the plaintiff on deed No. 13,509 bought from Jacob the western portion, in extent 1 lacham, of this lot 2; this 1 lacham portion is called lot B. Plaintiffs position now is this. He has lot B opening on to the lane towards its

eastern end and not far from the high road. He has also a half share of A, quite distinct from the partitioned land, which lot A has one of its corners abutting on the lane at its angle, and, adjoining A to the west, plaintiff has his original residing land C.

Plaintiff in this case claims that the deed No. 13,509 selling him lot B (the 1 lacham out of the lot 2 which fell to Jacob on the partition under deed No. 19,231), gave him a portion of the lane reserved in common-a portion of the whole lane-and so a right of using that lane in its entire length for foot passage and carts, whereby he would have access along that lane to lot A where it abuts on the lane and through lot A to his residing land C further west. Looked at the other way, he claims the right to go from his residing land C through his undivided half of A into the lane and along it to the high road on the east. In his plaint he claims, paragraph 4, to be entitled to the use of the lane by virtue o

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