1958 Present: Weerasooriya, J., and Sansoni, J.

THAMBIAH, Appellant, and SINNATHAMBY, Respondent

S. C. 723-D. C. Jaffna, 10179/L

    Partition action-Land outside the corpus-Claim for a right of way across it-Not permissible-Partition Act, No. 16 of 1951.

In a partition action a declaration cannot be obtained that a land outside the land to be partitioned is subject to a servitude.

APPEAL from a judgment of the District Court, Jaffna.

C. Thiagalinqam, Q. C., with V. Arulambalam and S. Thangarajah, for plaintiff-appellant.

S . J. V. Chelvanayakam, Q. C., with V. Ratnasabapathy, for 3rd defendant-respondent.

Cur. adv. vult.

January 21, 1958. WEERASOORIYA, J.-

The substantial point involved in this appeal is in regard to the right -of way claimed by the plaintiff-appellant along the points XYZ in Plan PI as a means of access from his land on the south, depicted as lots 6 2,nd 7, to the public lane on the north through the by-lane represented by lot 5.

The plaintiff filed this action as a co-owner for the partition of the land depicted as lots 6 and 7 in Plan Pl. The only other co-owner is the 2nd defendant. There is no dispute as regards their respective shares. The plaintiff also claimed a declaration that the land is entitled to a right of way as stated above. The 3rd defendant has been joined as a party because he is the owner of lots 2 and 3 within which XYZ fa.11. Lots 2 and 3 form a separate land to the north of the plaintiff's land.

It is not clear how in a partition action a declaration can be obtained tl1a.t a land outside the land to be partitioned is subject to a servitude, for this in effect is what the plaintiff seeks. Our attention was drawn by Mr. Chelvanayakam who appeared for the 3rd defendant-respondent to the case of Kanthia v. Sinnatamby 1[1 (1913) 2 l. Notes of Cases 19.] where it was held that such a declaration could not be granted. The position se ms to be the same under the Partition Act, No. 16 of 1951, which governs the present action. On this ground alone, therefore, the declaration sought for by the plaintiff should have been refused.

But as the point was not taken at the trial the learned trial Judge considered the matter on its merits and arrived at the conclusion that the plaintiff had failed to establish his right to a pathway along x. y ,z. The basis on which the plaintiff claims the pathway is a grant from K. Vinasy, the 3rd defendant's father, who originally owned lots 6 and 7

and also lots 1-5, 8 and 9 in Plan PI as one land of 46t lachams. By 5 '" of 1907 Vinasy transferred an extent of about 20 lachams on the southern side from this land (and now represented by lots 6 and 7 in PI) to his daughter Vallipillai by way of dowry. In doing so he reserved for the use of the grantee a strip of land four cubits wide out of other portion of his land to the north in extent 2t lachams as a means of access to the- public lane further north. At the time of the execution of P5 there were two lands forming the northern boundary of the land transferred thereon. One of those two lands is represented by lots 4, 8 and 9 in Plan PI and had been already transferred by Vinasy to the 3rd defendant on P4. The other land (exclusive of the strip referred to consisted of lots 2 and 3 in Plan PI and was still owned by Vinasy. That is the land described as "the northern boundary land belonging to- the first named of us " in the clause in P5 in which the right of way is I granted in the following terms: " together with the right of path four . cubits wide running from the public lane on the northern side along the eastern boundary of the northern boundary land belonging to the first named of us, for people, cattle and sheep to pass and re-pass to and from this land ". It is to be noted that in the subsequent dealing with that land by Vinasy on P8 in fav9ur of the 3rd defendant a path four cubits. wide running along its eastern bound