090-NLR-NLR-V-58-VELUPILLAI-Appellant-and-SUBASINGHE-and-another-Respondents.pdf
1956Present : Basnayake, C.J., and de Silva, J.VELUPILL AI, Appellant, and SUBASINGHE and another, RespondentsS. G. 152—D. G. Kurunegala, 5,320
Servitude—liighl oj wag—Right of a lessee to acquire it bg prescription—Wag of neecssitg.
A servitude cannot bo granted by any other than tho owner of n servient. tenement, nor acquired by any other than by him who owns nn adjacent tene-ment. Therefore, where a land'is divided by its ovvncc into two portions andeach portion is given on lease to a d i Horen l person, t lie lessee of one portion cannotclaim from tho other lessee a right of way by prescription over tho other portion.Nor is ho entitled to claim a way of necessity.
.^^-PPEAIj from a judgment of the District Court-, Kurunegala.
14J. G■ Wikramanayake, Q-C-, with T. B. Dissanuyake, for plaintiff-appellant.
H. V. Perera, Q.G., with Kingsley Herat and Stanley Perera, fordefendants-respondents.
March I, 1956. Basnayake, C.J.—
By an indenture of lease dated 10th February 1897 two bli.ikkhus byname Parusselle Dhammajoti and his pupil Akwatte Dewamitta of Mal-watta Vi hare leased to Jeronis William Charles de Soysa a land calledAturukultenne in extent 1077A 3R 3GP for a term of sixty years. On20th July 1907 the lessee entered into an agreement with tho successorsin title of the original lessors by which he retained 402 acres 1 rood 13perches and surrendered the rest of the land. The rest of the land inextent 675 acres was on 19fch November 1936, leased to the plaintiff.The present dispute is between the plaintiff and the defendants whohave succeeded to the rights of Jeronis William Charles de Soysa. Theplaintiff claims the right to use the cart way over the land leased to thedefendants in order to get to the high road. He bases his claim onprescription and alternatively he asks for a right of way of necessity.
He also claims damages in a sum of Rs. 250 up to the date of the insti-tution of the action and further damages at Rs. 250 per week from thedate of action'until the use of the road, which he alleges was unlawfullyobstructed by the defendants, is restored.'.
The defendants deny that the plaintiff was entitled to the right of thecart-way he claims either by virtue of prescriptive user or by way ofnecessity.‘
. At the trial as many as 22 issues were framed but on the invitation ofCounsel for tho defendants, the learned trial Judge first tried two of the
17LVIU
2J. X. B 65507—1,503 (5/57)
issues of law that went to tin? root of the case. Those issues aro ; asfollows :—
“ 14. Even if issue Ho. 5 is answered in the affirmative can theplaintiff acquire and claim a servitude of cart-way cither bjr prescript ionor by way of necessity ?
15. If issue Xo. 14 is answered in the negative has the plaintiff anycause of action and can he maintain the present action ”.
After hearing Counsel’s submissions on the law the learned trial Judgeanswered issues 14 and 15 in the negative. This appeal is from thatdecision.
The kind of servitude claimed in the instant case is a real or pracclialservitude. Such a servitude cannot exist without a dominant tenementto which rights are owed and a servient tenement which owes them. Aservitude cannot bo granted by any other than the owner of a servienttenement, nor acquired by any other 1 ban by him who owns an adjacenttenement. Here the plaintiff who is the lessee and not the owner of theland claims a servitude from the defendant who is also not the ownerbut the lessee of the land. The owners of both tenements arc one andthe same group of persons. A praedial servitude is a right for all timeand cannot be acquired except for the benefit of the lessor by the lesseewhose lights are limited by the terms of the lease. It is unnecessary torefer to all the authorities cited by learned Counsel. It is sufficient torefer to the case of City Deep v. McColganx, where this very questionarose for decision and it has been held that a lessee in longum tempuscannot acquire a praedial servitude by prescription over the property ofhis lessor. That case refers to the case of Jansen and Thorn v. Ysel 2,in which Kotze, C.J., held that a lessee cannot acquire a real servitudefor himself. We therefore hold that the learned trial Judge rightlydecided this point against the appellant.
The other question that remains for decision is whether the appellantis entitled to a right of way of necessity. Voct 3 in dealing with rightsof necessary ways states the law thus :—
“ In addition to right of way to be established or refused at thediscretion of the owner of a servient tenement-, there is furthermore aright of way which must be granted of necessity by the owner of aservient tenement when the neighbouring farm has no access or egress.It is commonly called a ‘ way of necessity ’ ”.
It would appear from this passage that a person who is entitled toclaim a way of necessity is the person who is the owner alone. Theappellant is therefore not entitled to succeed in his claim for a right ofway of necessity.
Wc accordingly dismiss this appeal with costs.
-Ippeal dismissed.
{1024) ?K. L. D. 276.
3 VUI, 3, 1.
– 1 S. A. li. C.
de StnVA, J.—I agree.