088-NLR-NLR-V-62-S.-NARASINGHAM-Appallant-and-S.-SINNATHAMBY-and-others-Respondents.pdf
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WJEETtASOORIYA, J—Narasingham v. Sinnathamby
Present :Weerasooriya, J., and H. N. G. Fernando, J.
S. NARASINGHAM, Appellan^, and S. SINNATHAMBY and others
Respondents
C. 167—D. C. Jaffna, 11,S6S/L
Tree—Leaves fallen on neighbouring land—Assertion of right by owner of tree tocollect them,—Maintainability—Thesavalamai {Cap. 51), Pari III, s. 3.
The owner of a, tree (ot live fence) is not entitled, to enter an adjacent landbelonging to another person in order to gather the dry leaves which havefallen tbero from that tree.
A PPEAL from a judgment of the District Court, Jaffna.
S. J. V. Chelvanayakam, Q.C., with S. S.harvananda, for the Plaintiff-Appellant.
Tt. S. Jl. Coomaraswamy, with E. B. Vannitamby, for the Dofendants-Respondents.
Cur. adv. vult.
May 27, 1960/ Weekasooktya, J.—
The substantial point that arises in this appeal filed by the plaintiff iswhether the learned District Judge was right in holding that thedefendants-respondents are entitled to the by-lane depicted as lot 2 inplan No. 38a marked X. This by-lane serves as a means of access fromlot 1 (which is private land situated towards the east and appurtenantto the land of the defendants on that side) to the public lane depicted aslot 2a on the west. Immediately to the north of lot 2a is the plaintiff’sland, lot 3. Along the southern extremity of lot 3 is a live fence whichseparates lot 3 from lot 2a and a part of lot 2. Dry leaves from this fencefall on to that part of lot 2 on which the fence abuts. The plaintiff’scase, as set out in his plaint, is that lot 2 is a lane used in common by himand the other adjoining landowners and also by members of the publicand that he is entitled to access to lot 2 in order to gather the fallenloaves, but since May, 1953, the defendants had prevented him fromdoing so on the ground that lot 2 is their private property. He filed thisaction against the defendants for a declaration that he is entitled to “ thefree and unfettered use ” of lot 2 as the owner of the adjacent land, lot 3,for damages, and for an order restraining them from preventing him fromgathering the leaves.
The defendants claim that lot 2 is an extension o'f their land on theeast. According to them this land originally formed part of a larger landcalled Mithiyahkaladdy which was dealt with on D3 of 1914 and D4 of1915. The transferee on D4 is the father of the 2nd defendant. Boththese deeds have the following recital describing the western boundary of
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WEERASOORIYA, J.—Narasingham v. Sinnathamby
the land conveyed : “ West by the property of Saravanamuttu Velupillai,
• by-lane appertaining to this land and the property of SangarapillaiSinnathamby This recital is relied on by the defendants as showingthat the by-lane referred to as “ appertaining to this land ” is the sameas lot 2 and that it then formed part of the land Mithiyankaladdy. But-even conceding the point, it is clear from the recital that the by-lano wasnot included in the corpus that was conveyed on D3- or 1)4. This isconfirmed by the fact that in the subsequent action which the father ofthe 2nd defendant filed for the partition of the land, the by-lane did notfind a place in the corpus depicted in the final partition plan P2A. Accord-ing to that plan the land was divided into three lots marked A, B and C,and under the final decree (P2) lot A was declared to be the property ofthe 2nd defendant and her father jointly, lot C the property of the 3rddefendant and another jointly, while lot B was declared to bo a lanecommon to all the parties. This lane is shown in plan P2A as extendingto a “ front lane ”, which is probably the same as lot 2 in plan X. Theprivate lane depicted as lot 1 in plan X would appear to be part of lot Bin plan P2A.
Mr. Coomaraswamy who appeared for the defendants-respondentsconceded that in view of this evidence he was unable to take up theposition that the 2nd or 3rd defendant had established title to lot 2 inplan X. He also stated that ho could not support the findings of thelearned District Judge that in any event the defendants had acquired atitle to lot 2 by prescription and also by virtue of the decree in D. C.Jaffna, Case No. 3,778. The plaintiff-appellant, it may be stated, wasnot a party to that action, which was filed by his niece Sivapakiam (whoseland forms the eastern boundary of his land and has lot 2 for its southernboundary, as shown in plan X). That action was filed against the presentthird defendant and the father of the 2nd defendant for, inter alia, adeclaration that lot 2 is appurtenant to the land of Sivapakiam and doesnot belong exclusively to the defendants. The District Judge has takenthe view that under the decree entered of consent in that case thedefendants were in effect held to be the owners of lot 2. But even if thisview is correct, the plain tiff-appellant is not bound by that decree.Mr. Coomaraswamy submitted, however, that nol withstanding that hohas conceded these matter’s, the plaintiff’s action should be dismissed ashe had failed to establish any right to the use of lot 2, either generally orfor the limited purpose of gathering the dried leaves which fall on to itfrom his live fence.
The plaintiff relies on recitals in his deeds, the earliest of which is P5 of1880, according to which the southern boundary of his land (lot 3) as wellas the land of Sivapakiam (both of which, along with certain otherextents, originally formed one land) is given as a lane. Ho also relies on therecitals in certain other deeds (one of which is P9 of 1909) dealing withlands to the south of lot 2 where the northern boundary is given as alane. Mr. Chelvanayakam did not contend that these recitals aresufficient to prove that lot 2 is a public lane, but he urged that there is
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WEERASOOMYA, J.—JVnraainnhmn v. Sinnathwnbif
ground for our holding that lot 2 is in tho nature oF a neighbour’sroad (via vicindlis) used in common by the adjoining land-owners as ameans of access to the public lane, lot 2A. But even so, the plaintiffwould appear to be excluded froStn the use of it as he has direct accessfrom his land to lot 2A ; and, in my opinion, it is on this basis that thefurther claim of the plaintiff to be entitled to access to lot 2 for thepurpose of gathering the dried leaves that fall from his live fence shouldbe considered.
Although in his plaint the plaintiff claimed Ks. 175 as damages fromMay, 1953, to October, 1954, and a further sum ofEs. 50 per annum ascontinuing damages, resulting from the act of the defendants in prevent-ing him from gathering these leaves, Mr. Chelvanayakam was content toaccept the evidence of the 3rd defendant who* placed their value at thenominal sum of Rs. 2 per annum. The learned District Judge has expressedthe view that this “ trivial ” claim of the plaintiff is only a pretext for re-agitating a right to lot 2 which his niece Sivapakiam failed to establishin D. C. Jaffna Case No. 3,77S. He also stated that a claim of this naturedid not appear to have been previously made in the Jaffna Courts. Ithink that this statement, which is, no doubt, based on the learned Judge’swide experience of litigation in the Northern Province, may be acceptedas correct.
According to the evidence of the plaintiff, the live fence consists oftulip and kiluvai trees, which are not fruit-bearing trees. Section 3 ofPart III of the Tesawalamai Regulation (Cap. 51) deals with the divisionof produce of fruit-bearing trees which overhang the ground of another.The Regulation purports to be a collection of the customs thon prevailingamong the Malabar inhabitants of the “province of Jaffna”, many ofwhich customs, it is stated, had been invented “ for the sole purpose ofplaguing one another”. It is silent in regard to any such right as isclaimed by the plaintiff in the present case. Mr. Chelvanayakam sub-mitted that in the absence of any provision in the Tesawalamai, thematter should bo decided with reference to the Roman-Dutch law.
Under the Roman-Dutch law, if a tree growing on one land overhangsanother land, the owner of that other land may appropriate to himselfthe fruits on the overhanging branches. He is also entitled to lop offthese branches, but they must be given over to the owner of the tree—Maasdorp, Institutes of Capo Law (1903 ed.) Book Two, page 97 ; WalterPereira, Laws of Ceylon (1913 ed.) page 491. There seems to be nothingin this statement of the law which even b_v implication recognises theright in the owner of a tree to enter a land belonging to another' in orderto gather the dry leaves which have fallen from that tree. Mr. Chclva-nayakam failed to draw our attention to any other statement of the lawby the text-writers which supports the plaintiff-appellant’s claim.
I would, therefore, dismiss the appeal with costs.
H. N. G. Fernando, J.—I agree.
Appeal dismissed.