1947 Present; Howard CJ. and Windham J.

MARIKAR, Appellant, and SITHTHIE MALEEHA, Respondent.

S. C. 35-D. C. Kalutara, 25,535.

Possession action-Right of footway-Claim for damages-Claim in reconvention that land be declared free of servitude-Whether claim maintainable.

Where in a possessory action the plaintiff claims not only restoration to possession but also damages, it is open to the defendant to set up his title by way of defence.

APPEAL from a judgment of the District Judge, Kalutara.

H. V. Perera, K.C. (with him H. W. Jayewardene), for the defendant, appellant.

No appearance for the plaintiff-respondent.

September 2, 1947, HOWARD C.J.-

We are of opinion that this appeal must be allowed. The plaintiff came into Court claiming that he be restored to his possession of a certain right of footway over the defendant's land for drawing water from the well on the defendant's land having access to the road called De Silva Street, He also claimed a sum of Rs. 100 being damages sustained by him and further damages at the rate of Rs. 2 per day from June 19, 1945. The defendant in his defence maintained that the plaintiff had no r