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Present: De Sampayo J.

1923.

NAGAMANI v.

VINAYAGAMOORTHY et al.

21-C. R. Batticaloa, 2,905.

Servitude-Not using the path indicated-Abandonment.

For a servitude to be lost by abandonment, the abandonment must be deliberate and intentional.

THE facts appear from the judgment.

Schokman (with him Bartholomeusz), for plaintiff, appellant.The servitude was created by the original owner of the entire land, Eliyatamby, when in 1907 he gifted lot B to second defendant. Though there is no specific mention of the servitude in the transfer by second defendant to plaintiff in 1912, yet the right of servitude passed to the transferee, for it is a right attaching to the land Suppiah v. Ponnambalam.1 The disappearance of the "lane " referred to in the deed creating the servitude does not extinguish the right. The servitude created is clearly a right of way over the land to the south of lot B, and though the particular track indicated may not have been used and has disappeared, it is admitted that plaintiff did cross defendants' land to the south by a shorter route. This he could have done only by virtue of his right of way, and hence no question of prescription can arise.

Navaratnam, for for defendants, respondents.-Although the earliest deed relating to the land in question purports to create a right of way over the adjoining block, yet the absence of any reference to the said sight in the subsequent deeds, and the fact that there is no evidence at all that the particular track was ever used, lead one to the conclusion that no right of way ever came into existence. The admission that the appellant had access to the main road along a shorter route through another land supports the contention that the alleged right of way was lost by abandonment. Counsel cited 14 N. L. R. 101.

March 16, 1923. DE SAMPAYO J.

This is a dispute with regard to a right of way which the plaintiff claims over the defendants' land which adjoins his own. It appears that one Eliyatamby was the owner at one time of the entire block of land shown in the survey plan marked B and filed of record, and

[blocks in formation]

it would seem that Eliyatamby alienated at various times various portions of this land to other persons. In 1907 he gifted the portion marked B to the second defendant. In that deed he creates a right of way in connection with lot B over the adjoining portion of the land, as the deed puts it, "with the right of passing and repassing through the lane allowed on the southern side of this and eastern side of the southern share and on the southern side." That language looks very unintelligible, but it is quite plain when read in connection with the plan. The deed means that the right of way was given to the second defendant along the southern boundary of B, then along the eastern boundary of the adjoining land, then again the southern boundary of that adjoining land. The route is fairly indicated I think on the plan by dotted lines. In 1912 the second defendant sold lot B to the plaintiff, but there is no specific assignment of the right of way contained in that deed of gift. The second defendant is the wife of the first defendant, and it would seem that in the year 1918 they became owners of the lots C and D, over which the right of way was created by Eliyatamby. The plaintiff having been obstructed by the defendants blocking the route mentioned at a certain point has brought this action for a declaration of his right to the use of the right of way. I think the parties have rather misled themselves as to the meaning of the right of way. The case appears to have been made to turn upon the question whether there was a lane across the defendants' lots C and D. No doubt the original deed in favour of the second defendant did speak of a right of passing and repassing along the line indicated, but when rightly interpreted that means that the right of way along the route indicated was allowed to second defendant. It appears now there is no beaten track which might be said to constitute a lane, and the Commissioner, on that ground. has held that the plaintiff cannot exercise a right of way, as there is no lane, and has dismissed the plaintiff's action. There is no doubt about the right created by the deed, and it can only be lost by some means known to the law, such as an adverse right created in favour of a servient tenant against the dominant tenant, by means, for instance, of prescriptive possession. There is really no such possibility in the present case, and I think it cannot be held that the plaintiff lost the right of way by adverse prescriptive possession on the part of the defendants. Mr. Navaratnam, however, on behalf of the defendants, has cited to me the case of Fernando v. Mendis, 1 which held that under the Roman-Dutch law a servitude may be lost by abandonment, whether by express abandonment or implied abandonment. It is not necessary for me to dissent from that view, or to discuss the law as to abandonment. It is very clear that the abandonment must be deliberate and intentional. Illustrations of that kind of abandonment are

1

1 (1911) 14 N. L. R. 101.

1923.

DE SAMPAYO
J.

Nagamani v. Vinayagamoorthy

1923.

DE SAMPAYO
J.

mentioned in the very judgment cited, but I think this case cannot be brought under that principle. There is evidence, not only of the plaintiff, but of the witnesses, that the plaintiff after his purchase from the second defendant did pass over the lots C and D now Nagamani v. Vinaya- belonging to the defendants. The plaintiff says he did so in the gamoorthy exercise of the rights created by the deed. The defendants could not quite meet this evidence, but alleged that the plaintiff passed over their land just as they passed over his land. Probably the defendants meant that plaintiff did not pass exactly over the route indicated in the deed, but in the most convenient way over their own land. Any way, this admission negatives the idea of abandonment. If the route indicated by Eliyatamby has not been observed, and there is necessity to define and fix it, it is open to the Court in this very case, by a proper survey and ascertainment of the proper way, to define and fix it. Probably it is a convenient way of preventing future disputes, but I think the Commissioner was wrong in dismissing the plaintiff's case on the mere ground that there is no lane across the defendants' land at the present time.

The judgment appealed from is therefore set aside, and the plaintiff is declared entitled to a right of way across the defendants' land marked C and D in the plan along the way indicated in Eliyatamby's deed.

If there is any uncertainty about that way, the Commissioner will take steps to define it by reference to a survey in the presence of all the parties.

The plaintiff is entitled to the costs of the Court of Requests and of this appeal.

Set aside.

Present: Porter and Garvin JJ.

KETCHO v. WIJEWARDENE.

364-D. C. Colombo, 3,900.

Prescription-Absence beyond the seas-Does it presuppose a former presence in the Island? Ordinance No. 22 of 1871, s. 14-Power of attorney in favour of proctors—Action by proctors-Costs.

66

In section 14 of the Prescription Ordinance, 1871, the expression
absence beyond the seas does not presuppose a former presence

in the Island.

Where proctors who held a power of attorney instituted an action, they were held entitled to recover their costs as proctors.

THE plaintiff in this action, a British subject resident in Calcutta,

66

sold at Calcutta to the defendant rice, salt, and long pepper for Rs. 14,900 on December 7, 1918, drew on him a bill of exchange for the value of the said goods, and shipped the said goods to the plaintiff's agent in Colombo. The defendant failed to accept the bill and to take delivery of the said goods. The plaintiff thereupon caused the said goods to be sold by public auction at the risk of the defendant. After crediting the defendant with the proceeds of sale of the said goods, the plaintiff sued the defendant in the Court of Small Causes in Calcutta for the recovery of Rs. 760·33 being the amount of deficiency at such sale. On March 2, 1920, the plaintiff obtained judgment by default against the defendant for the said sum. On July 6, 1920, the plaintiff instituted an action in the District Court of Colombo against the defendant on the judgment obtained by him at Calcutta. This action was on December 3, 1920, dismissed, with costs, with liberty to the plaintiff to bring a fresh action if so advised." The plaintiff having paid the costs, instituted the present action on February 1, 1922, on the count of goods sold and delivered at Calcutta and averring jurisdiction in the District Court of Colombo on the ground of the defendant residing within that jurisdiction. The defendant, among other pleas, stated that the claim of the plaintiff was prescribed in that the cause of action arose beyond the period allowed by law. The plaintiff had by a power of attorney dated November 29, 1921, appointed "Leslie Mack and Peter Daniel Authonisz Mack (junior), solicitors of Colombo, jointly and severally, as his attorney and attorneys." The two actions in the District Court of Colombo were filed by P. D. A. Mack & Sons, a firm of proctors, consisting of the two attorneys as proctors having been authorized thereto by a proxy signed by P. D. A. Mack

1923.

1923.

Ketcho v.

(junior), as the attorney of the plaintiff. The defendant in his answer pleaded that as the attorneys of the plaintiff were the Wijewardene proctors for the plaintiff, he was not entitled to any costs. The following is the judgment of the District Judge (A. St. V. Jayawardene, Esq.) :—

I think the issue of prescription must also be decided against the defendant. Mr. Tisseveresinghe's contention is that section 15 of the Ordinance does not apply to this case, because the plaintiff has never been in Ceylon. His argument is that the plaintiff cannot avail himself of the disability of absence beyond the seas under the circumstances. He has not been able to produce any authority in support of this contention, and I do not think it is possible to uphold it without doing considerable violence to the plain language of section 15. This contention, I think, is entirely negatived by the judgment of the Supreme Court in Eranee v. Nusserwanjee.1 In my opinion the plaintiff is entitled to claim the benefit of the disability, viz., absence beyond the seas, and I hold that although the cause of action arose somewhere in 1918, this present action is within time.

Mr. Tisseveresinghe then contends that the plaintiff is not entitled to costs, because the plaintiff appointed as his attorney or attorneys Messrs. Leslie Mack & P. D. A. Mack (junior), solicitors, the proctors in the case. These proctors, who appear in the case for the plaintiff, he says, are themselves the attorneys, and therefore no costs should be given. In the first place, the power of attorney I find has been given in favour of two persons, and the proxy is also in favour of the same two persons, but it is signed by only one of them, Mr. P. D. A. Mack (junior), so that I do not think it could be said that the attorneys appointed themselves proctors for the purpose of instituting the action. It is signed by only one of the attorneys, as attorney, and I think that enables them as proctors appointed by the attorney to recover their costs. Even if it were otherwise I would apply the principle enunciated in the English case of the London Scottish Benefit Society v. Cherley which laid down the rule that a solicitor appearing in person is entitled to costs as if he had employed a solicitor, except with regard to items which the fact of his acting directly renders necessary. This decision was followed in the case of H. Tolputt & Company, Ltd., v. Mole,3 but I would rather base my order on the ground that as the proxy is signed by one of the attorneys only, the attorneys were not appointing themselves proctors for the plaintiff.

Let judgment be entered for the plaintiff as prayed for, with costs.

The defendant appealed from this judgment.

Tisseveresinghe (with him Weerasinghe), for defendant, appellant.In this case the goods were sold on December 7, 1918, and the action was brought on February 1, 1922. The case for the plaintiff is that he always was and still is "absent beyond the seas." The plaintiff cannot avail himself of this plea. He has always been a resident of Calcutta, has never been in the Island, and cannot therefore be said to be "absent beyond the seas." Absence"

1

1 (1908) 11 N. L. R. 95.

3 (1911) 1 K. B. D. 87.

13 Q. B. D. 372.

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