1945 Present: Wijeyewardene J.

SUMANGALA, Appellant, and APPUHAMY, Respondent.

290-C. R. Gampola, 6,317.

Servitude-Right to footpath-Cogent evidence of right necessary.

A servitude such as that of right to a footpath must be established by cogent evidence, as it affects the right of the owner of a land to the free and unfettered use of his land. The fact that the person who claims the servitude has other means of access to the road is a matter that must be considered in weighing the evidence of user.

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

L. A. Rajapakse, K.C. (with him S. R. Wijayatilake and T. B. Dissanayake), for the plaintiff, appellant.

S. W. Jayasuriya for the defendant, respondent.

Cur. adv. vult.

March 7, 1945. WIJEWARDENE J.-

The plaintiff brings this action as the controlling Viharadhipathi of the Pothgul Vihara, Elpitiya, to have it declared that a land of the Vihara, lot 2 in plan D 2, is free from the servitude of a footpath claimed by the defendant as the owner of lots 5 and 6.

The Vihara stands on the land called Viharawatte, lot 1 in place D 2, and the Vihara owns lots 2, 3 and 4.

Lot 1 is separated from lot 2 by the Gansabahawa road. The lots 2, 3 and 4 are contiguous lots. In going from lot 1 to 3 the plaintiff crosses the Gansabahawa road at the point A, shown in plan D 2, and goes along the footpath, shown in detail in plan P1-the footpath being  Y F Z. The tea plantation in lot 2 appears to be fenced with barbed wire except along the common boundary between the lots 2 and 3.

The defendant states that he went along the footpath, G F in plan P 1 and then proceeded along the footpath F Y used by the priest, and thus got on to the Gansabhawa road. He saysy he used this path for the last 32 years as he had no other access to the Gansabhawa road.

It is no doubt true, as pointed out by the learned Commissioner, that the defendant claims this right of way by prescription, but the fact that the defendant has direct access to the Gansabhawa road as admitted by the retired Korala-one of the defence witnesses-is a matter which cannot be ignored in weighing the evidence of user.

The defendant's case is that he has been using the footpath in question for nearly 32 years but he is unable to explain satisfactorily why the plaintiff should have suddenly objected to his using the footpath about 1942. He makes a somewhat vague statement that there were " some differences " between him and the plaintiff about 1942 and that he then ceased to help the Siamese Sect to which the plaintiff belongs. He says that the plaintiff obstructed the use of the footpath only after he withdrew his support from the Siamese Sect. The defendant's evidence with regard to the nature of the " differences " between him and the plaintiff that resulted in plaintiff obstructing the footpath is very unsatisfactory and unconvincing. The plaintiff appears to me to give a more reasonable account of the origin of the differences between him and the defendant. He says that the defendant who was a dayakaya of the temple wanted to use the footpath in 1940 and he told the defendant that he could not allow footpaths over Vihara lands. The defendant then got displeased with the plaintiff and ceased to support the plaintiff's temple.

The plaintiff fenced lot 2 nearly twenty years ago as there was a test plantation on it. As he had to go from lot 1 to lot 3 over lot 2 he lowered the barbed wire at the point A near the Gansabhawa road so as to give him access to lot 2 without at the same time leaving a gap through which trespassing cattle could enter lot 2. If the defendant was allowed by the plaintiff until two years ago to use that footpath there would have been a similar arrangement of the strands of wire at the point G. But the position now is that the wire had been cut at G. Defendant says that he did not make the gap at G. He says that the gap at