070-SLLR-SLLR-2005-V-2-LOWE-vs-DHANAYAKE-AND-ANOTHER.pdf
CA
Lowe vs. Dahanayake and another '
(Wimatachandra J.)
413
LOWEvs.
DAHANAYAKE AND ANOTHERCOURT OF APPEAL,WIMALACHANDRA, J.CALA 37/2005DC NEGOMBO 6385/L22ND AUGUST, 2005
Interim injuction – Preventing access being obstructed – A person having nosoil rights, can he obstruct another using the road ? – How does a right of waycome into existence ? Interim relief-Ingredients-Can the District Court invalidatean order made by the Primary Court – Primary Courts Procedure Act, Sections66, 67, 68 and 69.
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(2005) 2 Sri L. R.
The plainfitt-responents instituted action and prayed inter-alia, for a declarationthat they are entitled to a right of way over the roadway depicted in the plan andfurhter sought an enjoining order/interim injection restraining the defendantfrom obstructing the plaintiffs from using the roadway. The Court granted interimrelief sought. The defendant petitioner sought leave to appeal from the Court ofAppeal.
Held:
A right of way can come into existence, by an agreement duly registered,by Crown Grant, by prescriptive possession, by dedication to the publicor by a declaration by a competent statutory authority that a right of wayof necessity has been granted.
The defendant is not the owner of the roadway – She is not the owner ofthe servient tenement – she is a mere user of that road, and as she hasno soil rights in respect of the right of way, she has no right to obstructthe plaintiffs from using the roadway.
It is only the owner of the servient tenement who can oppose the plaintiffusing the road way.
The plaintiffs have a prima facie case, the balance of conveniencefavours them, and the equitable considerations favour the grant of aninjunction.
Per Wimalachandra J.
“The District Court cannot issue an interim injunction which will nullify orinvalidate an order made by a Primary Court – if the Primary Court had alreadymade an interim / final order for possession of land, in the instant case theeffect of the interim injunction granted by the District Court is not contrary to theorder made by the Primary Court Judge.”
APPLICATION for leave to appeal from an order of the District Court, Negombo
Cases referred to :
Jinadasa Vs. Werasinghe 31 NLR 33
Perera /s. Gunatilleke, 4 NLR 181 at 182
Kanagasabai Vs. Mylvaganam, 78 NLR 288 (distinguished)
CA
Lowe vs. Dahanayake and another
(Wimalachandra J.)
415
D. H. Siriwardane for defendant petitioner
Ranjan Suwandaratne with Ranjith Perera for plaintiff-respondents
Cur.adv.vult.
2nd November, 2005WIMALACHANDRA, J.
The defendant-petitioner (hereinafter referred to as the defendant) filedthis application for leave to appeal from the order of the learned DistrictJudge of Negombo dated 20.01.2005. By that order the learned judgegranted the interim injunction prayed for by the plaintiff-respondents(hereinafter referred to as the plaintiffs) in their plaint. Briefly, the facts asset out in the petition are as follows :
The plaintiffs instituted this action bearing No. 6385/L in the DistrictCourt of Negombo against the defendant and prayed inter-alia for adeclaration that the 1st plaintiff is, subject to the life interest of the 2ndplaintiff, the owner of the land described in the 2nd Schedule to the plaint,which is a divided portion of the land described in the 1 st Schedule to theplaint (depicted in Plan No. 7815/2000) and for a declaration that the plaintiffsare entitled to a right of way over the roadway depicted in the plan No.7815/2000 shown as the southern boundary. The plaintiffs also sought anenjoining order and an interim injunction restraining the defendant fromobstructing the plaintiffs from using the said roadway. When the applicationfor the interim injuction was taken up, both parties agreed to file writtensubmissions and invited the Court to make the order on the writtensubmissions and the documents filed by the parties. Accordingly, theCourt made the order on 20.01.2005 granting the interim injunction soughtby the plaintiff. It is against this order that the defendant has filed thisapplication for leave to appeal.
The plaintiffs’ title to the land described in the 2nd Schedule to theplaint, which is in extent of 17.2 perches, is not disputed. The land describedin the 1 st schedule to the plaint is bordering on the north by a 30 ft. wide
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road and the south by the roadway described as Devata. The plaintiffs'father Don Cyril Samarasekera became the owner of the land described inthe 1 st schedule by deed of purchase No. 403 dated 15.01.1955 marked“P1”. The said Don Cyril Samarasekera gifted the said land to the 1stplaintiff subject to the life interest of the said Don Cyril Samarasekera bydeed No. 65689 dated 14.05.1988 marked “P3”. The said Don CyrilSamarasekera constructed a house on the land described in the 2ndSchedule to the plaint, which is on the southern part of the land describedin the 1 st Schedule. This is shown in Plan No. 7815/200C made by HughL. C. Dabrera, Licensed Surveyor marked “P4”. It is the plaintiffs’ casethat the said Don Cyril Samarasekera built the said house and garageclose to the southern end of the land facing the roadway described as the“Devata” in deeds marked “P1” and “P3”. It is not in dispute that the saidroad “Devata” is now named Jayaratne Road, which is 20 ft. in width. Theplaintiffs’ position is that if Don Cyril Samarasekera had not used the saidroadway in the south as a means of access, he would not have built thesaid house and the garage facing the said roadway. The architecturalplan of the said house was produced marked “P5” and the plan showingthe house built close to Jayaratne Road (previously called Devata Road)marked “P4”.
The counsel for the defendant submitted that the plaintiffs have accessto the land from the roadway shown to be 30 ft. in width as the northernboundary. The learned counsel further submitted that the learned Judgehas not examined whether the plaintiffs have made out a prima facie case,in that, they were in fact entitled to a servitude over the said roadway andtherefore the order of the learned Judge granting the interim injunctioncannot stand. The learned counsel contended that only the defendant isentitled to the right of way over the said roadway by deed No. P13.
In order to entitle the plaintiffs to an interlocutory injunction, theplaintiffs must establish that there is a prima facie case in their favour.Once they clear that hurdle the next requirement is that the balance ofconvenience should favor the plaintiffs. The Court must also consider whetherthe equitable considerations favour the grant of an injuction. As regards
CA
Lowe vs. Dahanayake and another
(Wimalachandra J.)
417
the above-mentioned first requirement, the Court must be satisfied thatthere is a serious question to be tried at the hearing and that on the factsbefore it there is a possibility of success if the facts alleged by the plaintiffsare proved, (Dalton J. in JinadasaVs. Weerasinghe{x)
A right of way can come into existence by an agreement duly registered,by Crown Grant, by prescriptive acquisition, by dedication to the public, orby a declaration by a competent statutory authority that a way of necessityhas been granted (Servitudes by Hall & Kellaway.'page 70).
Before I proceed to consider the requirements of prescriptiive acquisition,it must be noted that the defendant is not the owner of the said roadway,in that the defendant is not the servient tenement, and she is a mere userof the said road. Title to a servitude may be acquired by prescription if theoccupation or use of something over which a right is asserted has beenexercised nec vi, necclam, nec precario. (Servitudes by Hall and Kellaway,page 29). It must be openly exercised and the person asserting must havesuffered no interference from the true owner, Further, the use of the roadwaymust take place without the consent of the true owner. These are essentialelements to a prescriptive claim against the owner of the roadway. As Imentioned above, the defendant is not the true owner and she is one of theusers of the roadway among several others. It is only the owner of theservient tenement who can oppose the plaintiff using the said roadway. Inthis case the defendant is not the owner but merely another user of thesaid roadway. It is to be noted that an adverse user for the purpose ofprescriptive rights has to only show that he has been a user of the definiteroadway. According to the evidence placed before the Court, the plaintiffs’father who bought this land on 15.01.1955 has this roadway as the southernboundary of his land. Thereafter the plaintiffs had build a house borderingthe southern boundary of the said land facing the said roadway, which isthe subject matter of this action. The certificate of confirmity was obtainedfor the said house on 30.11.1998 (vide “P6”) All these are prima facie proofthat they have been using the said roadway for well over ten years. Anysporadic interruption coming from another user of the said road, namely,the defendant is immaterial since she is not the owner of the said roadway.
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(2C05) 2 Sri L. R.
It seems to me that the plaintiffs have used the said roadway, which isthe southern boundary of their land as of right for a long period of time.This is borne out by the construction of the house and garage by theplaintiffs in close proximity to the southern boundary of their land facingthe said roadway.
In the case of Perera Vs. Gunatilleke2) at 182, Bonsor C. J. observed:
“It seems to me that, where a person establishes thathe has used a way as of right openly and continuouslyfor a long period and is forcibly prevented from using it,he is entitled to an injuction to restore him to the quasipossession of the way, irrespective of whether he canestablish the existence of a servitude. We will treat thisaction as a possessory action and grant an injuction whichwill restore the status quo ante”
It is also to be noted that the defendant who has no soil rights in respectof the said right of way, has no right to obstruct the plaintiffs from using thesaid roadway.
The balance of convenience too favours the plaintiffs. Even if the injuctionsought by the plaintiff is granted, it will not prevent the defendant fromusing the said roadway. It will only prevent the defendant from obstructingthe plaintiffs from using the roadway. However, it the injunction is not grantedtheir is nothing to prevent the defendent from obstructing the plaintiffs fromusing the roadway. Accordingly, the inconvenience which the plaintiff willsuffer by the refusal of the injuction is greater than that which the defendantwill suffer, if it is granted.
Finally, I will consider the objection raised by the learned counsel forthe defendant that in view of the order made by the Primary Court, Negomboin Case No. P/3660, dated 20.11.1998, the District Court will not havejurisdiction to grant an interim injuction according to the judgment in thecase of KanagasabaiVs MytvaganamJ3)
CA
Lowe vs. Dahanayake and another
(Wimalachandra J.)
419
The facts which led to the filing of an information by the Police underSection 66 of the Primary Courts Procedure Act, No. 44 of 1979 was dueto a dispute between the 1 st party respondent, Yasasiri Ruwan Balasuriya,the 2nd party respondent W. Shereen Malcon Lovi and the 3rd partyrespondent Don Cyril Samarasekera over the said roadway, namely, Devetaalias Jayarathe road. The plaintiffs were not parties to the primary Courtproceedings but the plaintiffs* predecessor in title to land was the 3rdparty respondent.
After an inquiry the learned Primary Court Judge made order underSection 69(2) directing the 3rd party-respondent not to cause anyobstruction to the 2nd party-respondent in using the said roadway.
The learned Magistrate observed that the 3rd party respondent had notused the said roadway as of right.
The order reads as follows :
The operative part of the order is the 2nd paragraph where the learnedJudge ordered the 1st and 3rd respondents not to obstruct the 2ndrespondent when she uses the road. It is to be noted that nowhere in theorder is it stated that the Island 3rd respondents are prohibited fromusing the said road.
In the case of Kanagasabaivs Mylvaganam (Supra) it was held thatwhere a Primary Court had already made an interim or final order forpossession of land, the District Court will not have jurisdiction to grant an
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interim injunction which have the effect of nullifying such order. That is, theDistrict Court cannot issue an interim injunction which will nullify or invalidatethe order made by the Primary Court Judge in terms of sections 66, 67,68, 69 of the Primary Courts Procedure Act.
In the circumstances it is my considered view that in the instant casethe effect of the interim injunction granted by the learned District Judge isnot contrary to the order made by the Primary Court Judge. Accordinaly, lcannot agree with the submission made by the learned counsel for thedefendant that the interim injuction granted by the learned District Judgewill prejudice the rights of the defendant.
For there reasons I see no grounds to set aside the order of the learnedDistrict Judge dated 20.01.2005. Accordingly, the application for leave toappeal is dismissed with costs fixed at Rs. 5,000.
Application Dismissed