Wijeygoonewardene V. De Silva

1938 Present: Maartensz and Moseley JJ.

WIJEYGOONEWARDENE v. DE SILVA.

40-D. C. Kandy, 48,132.

Public stand for omnibus-No right of way or user to public-Not a road or street-Motor Car Ordinance, No. 20 of 1927.

The public are not entitled to a right of way or user over a public stand provided for omnibuses under the regulations issued under the Motor Car Ordinance.

APPEAL from a judgment of the District Judge of Kandy. The facts are fully stated in the judgment.

N. Nadarajah (with him S. W. Jayasuriya and U. A. Jayasundere), for defendant, appellant.

N. E. Weerasooria (with him E. B. Wikramanayake), for plaintiff, respondent.

Cur. adv. vult.

May 10, 1938. MAARTENSZ J. -

The defendant appeals from a decree of the District Court of Kandy (1) declaring the plaintiffs entitled to the right of approach and access to their premises from the Railway Approach, road and from their premises to the Railway Approach road; (2) ordering the defendant to demolish the house marked No. 2 depicted in the plan X filed of record in the case; (3) ordering the defendant to pay the plaintiffs damages at the rate of Rs. 50 per mensem ?till the abatement of the nuisance by the removal of the house No. 2? and costs.

The following is a short narrative of the events which led to the action : -

The first plaintiff was and still is the owner of premises bearing assessment Nos. 113-121, Peradeniya road, Kandy. By a notice dated December 21, 1934, he informed the Municipal Council of Kandy (hereafter referred to as the Council) that he intended to erect certain buildings on the premises Nos. 113-121. These buildings were not erected.

A second notice dated March 13, 1935, was given by the first plaintiff to the Council of his intention to build a workshop and showroom in premises Nos. 113-121, Peradeniya road. The words ?Peradeniya road? have been struck off and ?Railway Approach road? substituted. He was granted leave to erect the workshop and showroom in premises Nos. 113-121 by the order dated June 5, 1935 (P 4) subject to the conditions stated in the order. One of the conditions was as follows : ?(4) The proposed access from Peradeniya road must be cleared by dismantling the unauthorized roof of cattle gala?.

The Council had inquired on March 29, 1935, ?What means of access do you intend providing from Peradeniya road?? (P 7).

The first plaintiff in reply wrote letter D 6 annexing ?a plan of the access road I intend providing from Peradeniya road".

At this time the land marked ?Bus Park? in plan X was land owned by the Council which the first plaintiff had no right to enter. The letter P 7, the letter D 6 and condition 4, on which sanction was granted to the first plaintiff to put up a showroom, indicate to my mind that the first plaintiff intended that access to the building should be from Peradeniya road and I do not think I can accept Mrs. Wijegoonewardene's evidence that she and the first plaintiff had the idea of erecting the building in anticipation of the piece of land belonging to the Council being declared a stand for hiring cars. This evidence is also inconsistent with her evidence that originally it was intended to construct the building ten feet from the boundary between the first plaintiff's premises and the land belonging to the Council.

The building which was completed in August, 1936, is so close to the boundary that it encroaches slightly on the land belonging to the bus park. See P 12.

Mrs. Wijeygoonewardene stated that the site was altered owing to a landslip and that the Assistant Municipal Engineer had advised her and the first plaintiff as to what should be done after the landslip.

If the first plaintiff had constructed his building ten feet from the boundary he would have had less reason for complaint in this action.

By a notification in the Government Gazette No. 8,160 of October 25, 1935 (P 27), the Municipal land mark

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