178-NLR-NLR-V-47-PODIHAMY-et-al-Appellants-and-SEIMON-APPU-et-al-Respondents.pdf
DIAS J.—Podihamy v. Beimon Appu.
603
1946Present: Dias J.PODIHAMY et al., Appellants, and SEIMON APPU et al.,
Respondents.
190—C. R. Matara, 1,047.
Misjoinder of parties and causes of action—Court not bound to dismiss the wholeaction—Servitude of right of way—Clear proof necessary.
The Court is not bound to dismiss an action on the ground of misjoinderof parties and causes of action. It can strike out a wrongly joineddefendant and allow the action to proceed as against the other defendants.
Clear, precise and cogent evidence is necessary to establish a servitudelike a right of way.
A
PPEAL from a judgment of the Commissioner of Requests,Matara.
H. W. Thambiah, for the first and second defendants, appellants.
V. Ranawake (with him H. A. Koattegoda), for' the plaintiffs,respondents.
Cur. adv. wit.
October 18, 1946. Dias J.—
The plaintiffs sought to establish a right of footpath from their landto the Village Committee road as against three defendants, of whom thefirst and second are the appellants.
In the plaint it was asserted that the plaintiffs were the owners of adivided land marked lot C 2, and that the three defendants “ are theowners of a divided lot …. towards the north ” and that thisland lay between the plaintiff's land and the Village Committee road.The plaintiffs stated that for over twenty years they had been using afootpath “ across the defendants’ land in order to reach the land calledRange Mahawatte and the Village Committee road ”. It is pleaded thatthe defendants wrongfully and unlawfully obstructed the path.
A commission was issued to Mr. Ferdinands, a surveyor, to locate thecorpus in dispute. This he has done in the presence of the parties andsubmitted a plan and his report to the Court. –
When the surveyor went to the land the plaintiffs pointed out to himthe paths R-X-Y-T and T-S-U as being the footpaths claimed by them.Clearly therefore what the plaintiffs want are a path over the lands of theappellants, as well as a pathway from T-S-U to the Village Committeeroad on the east over the third defendant’s land. It is clear that suchclaims cannot be made in this action without creating a misjoinder ofparties and causes of action. Plaintiffs’ counsel therefore moved to
604DIAS J.—Podihamy v. Seimon Appu.
withdraw the action as against the third defendant. Counsel for theappellants then cited the case of Ettaman v. Narayanan 1, and asked thatthe whole action should be dismissed. The Commissioner refused thatapplication and ordered the trial to proceed.
It has been urged before this Court that there being a misjoinder ofparties and causes of action, there is no alternative but to dismiss the• wliole of the plaintiff’s action, and the case of Abraham Singho v. JayanerisSingho 8 was also cited. I am however content to follow the decision inKudhooa v. Joonoos ».
A Court should not be fettered by technical objections based on mattersof procedure. Where the law permits it, the Judge should brush themaside by rectifying the mistake and by casting the offending party incosts. Wiclcramotttlaka v. Marilcar *.
I am of the view that a Court is not bound to dismiss an action on theground of a misjoinder of parties and causes of action. It was openin this case for the trial Judge to strike out the third defendant from thecase, and to allow the action to proceed as between the plaintiffs and theappellants.
On the question of fact I do not feel disposed to interfere. TheCommissioner saw the witnesses and probably heard the very samearguments which have been adduced before me. Undoubtedly clear,precise and cogent evidence is necessary to establish a servitude like aright of way. I agree that it is not sufficient that witnesses should comeforward and merely say that they saw plaintiffs possess the land or use afootpath without specifying precisely how the land was possessed or howthe path was used. If there is any insufficiency in the evidence on thispoint, one may ask what was the appellants’ counsel doing in not cross-examining adequately ? It is urged that the Commissioner has notdiscussed the evidence. I think he has done so, although he might haveelaborated his findings. No doubt this pathway is rather inconvenientfor the appellants, but I am satisfied that the findings of the trial Courtshould not be disturbed.
I dismiss the appeal with costs.
Appeal dismissed.
1 {1938) 18 Ceylon Late Recorder 111.3 (1939) 41 N. L. R. 251.
1 (1930) 14 Ceylon Law Recorder 121.* (1895) 2 N. L. R. at 12.