SL CoA | When servitude of right of way becomes attached to a land, it passes to the new owners of the land even if it is not mentioned in the deeds

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J., dismissed an appeal filed against the judgment of the District Judge in the favour of the plaintiff providing them right of way in order to have access on his land over the land of the defendants.

The plaintiff and the defendant had purchased their lands according to the deeds. The plaintiff had filed a complaint in 1989 that the road that was depicted in the Plan 91/263 was already there when the plaintiff purchased her land; but after the defendant purchased her land, she obstructed the plaintiff using that road. The Section 66 application filed regarding this dispute had been dismissed in 1990 on the basis that there was no breach of the peace. The surveyor who had prepared Plan 91/263 in his evidence had submitted that the road depicted in that Plan had been obstructed and the road shown in plan 349 was similar to the disputed road. The surveyor, who had prepared Plan 204, in his evidence, had stated that he went to the plaintiff’s land in his vehicle in order to prepare that Plan that means there had been a motorable road in 1987. It is the position of the plaintiff that the surveyor drove along the disputed road. The Gramaseva officer had also has given evidence in favour of the plaintiff regarding that road.

The Court while dismissing the appeal explained that once the issues are raised, the pleadings recede to the background so granting 12 foot wide road instead of 10 by the district judge was not against the law, further the road was also necessary as a way of necessity and the defendants were not able to show any alternative which could be used so there was no reason to interfere with the judgment of the District Judge.[Wipulasena Lawulupitiya v. Silpadipathiyalage Siriya, CA/644/2000/F, decided on 13-12-2019]

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