063-NLR-NLR-V-37-RODRIGO-v.-ABDUL-RAHMAN.pdf
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Rodrigo v. Abdul Rahman.
1935Present: Koch J.
RODRIGO v. ABDUL RAHMAN.
241—C. R. Colombo, 3,767.
Res judicata—Dismissal of action for cartway—Subsequent action for foot-path—Ciuil Procedure Code, s. 207.
The dismissal of an action for a roadway is a bar to a subsequent actionfor a right of way on foot in respect of the same land.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
H. V. Perera (with him N. E. Weerasooria and Peter de Silva), fordefendant, appellant.
R. L. Pereira, K.C. (with him L. A. Rajapakse and Mackenzie Pereira),for plaintiff, respondent.
KOCH J.—Rodrigo v. Abdul Rahman.
299
August 1, 1935. Koch J.—
This appeal is from the judgment of the Commissioner of Requestsdeclaring the respondent entitled to a right of way 4 feet wide, as set out inissue 1.
Issue 1 is as follows: —
“ Is the plaintiff entitled to a right of way leading from premises 178bto the Station Approach road, Dehiwala, as shown in plan Zfiled of record ? ”
Plan Z filed of record is a plan made by a special licensed surveyor,dated July 13, 1934, depicting a path within dotted lines leading fromthe respondent’s land on the north to Station road on the south througha garden bearing assessment No. 178 belonging to the appellant. Thisplan is on the scale of 1 chain to an inch. I have scaled this carefullywith a foot rule and I find that the width of the path depicted is one-sixthof an inch which works out to a width of 10 feet. I had to ascertain thisfact for myself as the surveyor has not been called. I read the learnedCommissioner’s finding therefore to be that he allows the respondenta passage within these lines from north to south but limits it to a widthof 4 feet.
The respondent in his plaint claimed a pathway of 5 feet for the freeingress and egress of his tenants, the transport and conveyance of theirfurniture, &c. (sic.). He does not specifically state that the transport wasto be by cart. In his evidence, however, it becomes clear that this wasto be by cart. He speaks of rickshaws and handcarts. A rickshawthough called such is a vehicle and a handcart is a cart.
Now, the servitude he claims is in the nature of a right of way. Servi-tudes of this nature are divided into (1) Iter, i.e., passing on foot,(2) Actus, i.e., drawing vehicles across, (3) Via, i.e., using the pathas a road in a reasonable way. Both the Roman law and theRoman-Dutch law lay down that the larger of these rights includes thesmaller. (Vide Justinian, hk. II., tit. 3, p. 2, and Voet, VIII., 3, 2.)
If this is so, as no doubt it is, a claim made for a road 10 feet wide (via)would include the right of footway (iter) and the right for the passageof vehicles (actus).
If then the respondent had previously brought an action for a declara-tion of title to the use of such a road against this defendant and his actionwas dismissed without any reservation, the dismissal of his action wouldoperate to prevent a subsequent action against the same defendant beingbrought for a declaration to the same right and all interests which thatright may include.
The previous action was for a “ via ”. The present action is againstthe same defendant for an “ actus The greater right includes the lessand the original claim will include the subsequent one, if the passageis the same.
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KOCH J.—Rodrigo v. Abdill Rahman.
At the argument there was difficulty experienced by the learned counselwho appeared for the appellant and respondent to declare positivelywhether the 4-foot passage for carts which was allowed by the learnedCommissioner fell within the path depicted within the dotted lines onplan Z.
With the approval of counsel I drew the attention of the learnedCommissioner to this difficulty and desired him to report on this point.
I received a reply after some delay owing to the absence of theCommissioner on leave from his station, which is to the effect that theplan filed in the earlier case was taken out of the record on a motion by therespondent’s proctor of July 9, 1934. It can now be appreciated howthe confusion has arisen. He has, however, given his reasons forconcluding that the 5-foot passage claimed in this case fell within theboundaries of the 10-foot passage claimed in the earlier case. He hasalso manifested that the obstruction complained of in both cases was thesame act.
The issue framed in the earlier case was : —
“ Is the plaintiff entitled to a right of cartway 10 feet wide leadingfrom the premises No. 178b to the Station Approach road, Dehiwala, asshown in the sketch by the plaintiff ? ”.
This action was dismissed without any reservation, the learned Com-missioner who decided the case holding that he rejected the evidencethat the path was used as a cartway. He stated, however, that he wassatisfied that the evidence established that there was user of a footpathonly but did not decree the plaintiff entitled to it. Here clearly theCommissioner was wrong. As the larger right of roadway claimedincluded the smaller right of footway, he should have decreed the plaintiffentitled to the latter and set out its width (generally the width allowedin such a case is 3 feet). This he failed to do, but the plaintiff is toblame in not having urged at the earlier trial that if the smaller right wasproved, he should be declared entitled to it. He was further to blamein not appealing and having the error rectified in a higher Court.
The result is that that decree now stands in the way of his succeedingin his present claim, because apart from the learned Commisioner’sopinion I am convinced on the material before me that the present path(actus) is included in the earlier roadway (via) that the respondentpreviously claimed.
Apart from this consideration of actual inclusion of one right in theother, the law requires that on the obstruction complained of, every rightof property or to relief of any kind which can be claimed, set up or put inissue between the parties upon the cause of action for which the action isbrought, whether actually so claimed or not, cannot be made the subjectof a subsequent action against the same party, and the decree passed onthe first action becomes res adjudicata.—Section 207 of the CivilProcedure Code.
The obstruction complained of in this case is the same act as thatcomplained of in the earlier action, so that the cause of action in both
Bartholomeusz v. Ismail.
301
cases is the same, and if appropriate relief was not claimed in the earliercase, the law will not allow that relief to be made the subject of aseparate claim in a later action.
I am therefore of opinion that the Commissioner’s finding on issue 5 isincorrect. His finding should have been against the respondent. I setaside his judgment and dismiss the respondent’s action with costs. Theappellant will have his costs of appeal.
In view, however, of the Commissioner’s finding in favour of the re-spondent in the earlier case in regard to a footway, and the finding of factof the Commissioner in this case, I shall expressly reserve to the respondentthe right to claim a way of necessity over the appellant’s land, if soadvised, but this right must be limited to a claim for a footway only, andI also desire to state that this judgment should in no way prejudice therights of either party in the proceedings in which such a claim may beinvestigated.
Appeal allowed.