SL CoA | Right of way by prescriptive user for using the disputed site for past 20 years upheld

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Bench of A.L. Shiran Gooneratne and Mahinda Samayawardhena, JJ., dismissed the appeal in the matter of acquisition of prescriptive right to use by the respondent.

In the instant case, the respondent instituted proceedings under Section 66(1)(b) of the Primary Courts Procedure Act in the Magistrates Court of Walapane, against the appellant, claiming that the appellant had obstructed his right of way over the property owned by the appellant. The respondent had used the disputed roadway for over 20 years. The Magistrate held that the respondent has a right of way over the disputed land as his prescriptive right. The appellant filed a revision application to set aside the said order in the High Court of Nuwara-Eliya, where the learned High Court Judge had dismissed the said application. The appellant has moved to this court against the said order.

The contention of the respondent is that there were 3 alternate roads that can be used by the respondent to reach his land. The Magistrate having considered the said documents has come to a correct finding that the said documents in no way proved that the Respondent did not use a roadway over the land of the appellant or that the appellant used an alternate road. The respondent has been using the same road for the past 20 years.

The Court observed that a right of way could be acquired both on the grounds of prescription and on necessity. The Court stated that affidavits, filed of record, witness statements and the documents clearly establish that the respondent filed the present action to acquire prescriptive rights to the roadway which gives access to his land and it is on that basis, the Magistrate determined that the respondent has acquired the right of way by the prescriptive user. In view of the above, the Court dismissed the appeal as it did not find any irregularity with the impugned order. [Mahagamagedara Somarathna v. Thennakoon Mudiyanselage Rajanayaka, CA (PHC) 174/2014, decided on 01-11-2019]

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