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KARUNARATNE v. INHABITANTS OF MAMPE
NLR38V403
1936 Present :
Moseley J. and Fernando A.J.
KARUNARATNE v. INHABITANTS OF MAMPE
239-D. C. Colombo, 50,562.
Public bathing place-User from
time immemorial-Permissive user to neighbours-No public right.
Where the owner of a land allowed neighbours to come to his land and bathe in a
well or pond, such a user cannot give rise to a public right.
A public right claimed from time immemorial must be exercised of right. It
cannot originate by permission or usurpation of an act of pure neighborliness.
A partition decree respecting the land would not affect public rights unless the
Crown was a party to the action.
APPEAL
from a judgment of the District Judge of
Colombo.
H. V. Perera (with him G. E. Chitty), for plaintiff, appellant.
N. E. Weerasooriya (with him J. R. Jayawardene), for defendants,
respondents. ;
Cur. adv. vult.
November 26, 1936. FERNANDO
A.J.-
The plaintiff brought this action to have it declared that the inhabitants of
the subdivision of Mampe-Kesbewa were not entitled to use the well situated on
her land as a public bathing place, for restoration of possession, and for
damages. The defendants in their answer pleaded that from time immemorial, and
by prescriptive use the inhabitants of the subdivision had been in the enjoyment
of the well or pool in question as a bathing place, and that the public had
acquired a right thereto. The learned District Judge held on the evidence that
the pond or pool in question had been used as a bathing place far beyond living
memory, but it was contended for the appellant that this finding is not
supported by the evidence. The plaintiff herself in cross-examination stated
that she had been living on the land for about 20 years, and that during that
period the villagers had come to the land to bathe there, and that she could not
say how long the bathing place had been in existence before her marriage, which
was about 25 years ago. The witness Kulatunga stated that he was 69 years old,
and that his native village was Demaladua, a little more than a mile from this
land, and that even during his boyhood the Pokuna was used as a bathing place by
all the inhabitants of the neighbouring village. He added that people came to
this place to bathe because there is no suitable bathing place in the locality,
and that there was a road over this land to go to the Pokuna. He then added that
he heard that this Pokuna was handed over in 1907 by the original owner to be
repaired and maintained. In cross-examination he admitted that the original
owner was a wealthy landed proprietor, that the people who came to bathe were
the neighbours of this land, and that the plaintiff's father-in-law had offered
the bathing place for the use of the general public. It is clear however that he
does not know personally about this so-called dedication. He added that the old
path is not now used, and there is another path and could not say whether that
path went near the plaintiff's house. He had heard that some repairs had
been done in 1916, but did not see the work being done. He himself had written the letter P 4 addressed to the plaintiff's proctor, and the position taken up in that letter is that the well has been used and maintained by the Village Committee for the public since 1907 when it was handed over to the Village Committee by the then owner. In view of this document, and of the nature of his evidence, it seems clear that this witness knew little or nothing of the use of this well or pond before he came in office as Chairman of the Village Committee in 1930. The next witness Abeykoon does not appear to be a very satisfactory witness. At the beginning of his evidence he stated that he had known the Pokuna for about a hundred years, although he gave his own age as 67. " This pond," he says, " is used by the residents of the locality, and they have so used it from the time I remember". In cross-examination however,
