P ATHIRAN A, J.—Ooonesekera v. Leelaralne
1975 Present: Pathirana, J., Wijesundera, J., and Ismail, J.
D. P. GOONESEKERA, Appellant and K. D. LEELARATNE,
S. C. 20/72 (F)—D. C. Panadura 8830
Registration of Documents Ordinance—Sections 7 Cl) and 8(b) —Certificate of Acquisition issued under Section 12 (1) of the LandAcquisition Ordinance—Is such certificate an instrument affectingland within the meaning of Section 8 (b) of the Registration ofDocuments Ordinance.
A certificate of Acquisition issued under Section 12 (1) of theLand Acquisition Ordinance (Chapter 203 of the Revised LegislativeEnactments 1938) is not an instrument affecting land within themeaning of Section 8(b) of the Registration of DocumentsOrdinance.
“The vesting of land in the Crown under Section 12 (1) of theLand Acquisition Ordinance absolutely free of all encumbrancessnaps the link of ownership with any persons who were entitledto the land prior to the acquisition or claimed rights thereto andcreates a new title in the Crown not referable to any previousownersmp wiping out all other titles. The question of competingdeeds duly registered from the same source or from any othersource in respect of the same land to defeat the rights of theCrown to the land acquired under the Land Acquisition Ordinanceby reason of due and prior registration will not therefore arisefor consideration.”
^^PPEAL. from a judgment of the District Court Panadura.
H. W. Jayawardene with N. R. M. Daluwatte, for thedefendant-appellant.
R. P. Goonetilleke with Mohan Pieris, for the plaintiff-respondent-
Cur. adv. vult.
September 3, 1975. Pathirana. J.—
At the conclusion of the argument we dismissed the appealwith costs. We now give our reasons.
By Certificate of Acquisition No. 255 dated 7.3.1934 (P8) theCrown acquired and became the lawful owner of the land calledRalahamigewatte described in the schedule to the plaint in extentOA. OR. 6.1P. The Crown by its Grant dated 29.5.1961 (P9) whichwas registered on 29.7.1961, conveyed the said premises to oneDon Gilbert Wijemanne, who by deed P10 of 20.7.1961 conveyedit to the plaintiff. The plaintiff instituted this action for a decla-ration of title to an extent of OA. OR. 05.8P. described as lot 1in Plan No. 770 filed of record marked PI. The learned DistrictJudge entered judgment for the plaintiff as prayed for.
PATHIRANA, J.—Gooneoekera o. Leetaratne
The land in dispute is covered by the corpus in the CrownGrant. The defendant claimed title from one Sallima Lebbe OmerLebbe Hadjiar, whose title devolved on one Cissy Dias, whoalong with her husband by deed D7 of 1933 transferred the landto one John Gunesekera. John Gunesekera died intestate andhis rights devolved on his parents Haramanis Gunesekera andMeenona Gunesekera who by deed No. DIO of 1943 transferredthe said land to Eliyas Gunesekera, who in turn transferred thesame by deed Dll of 1916 to the defendant.
The only ground urged in appeal before us by Mr. Jayewar-dene, appearing for the defendant-appellant, was that the deed3and documents relied on by the defendant were entitled topriority over the plaintiff’s deeds and documents by virtue ofdue and prior registration. His contention was that under Sec-tion 7 (1) of the Registration of Documents Ordinance, read withSection 8 of the same Ordinance, the Certificate of Acquisition(P8) of the land was an instrument affecting land within themeaning of Section 8 (b) of the Ordinance. This instrument P8not having been registered was therefore void against the defen-dant’s deeds which have been duly registered.
Assuming that the Crown is bound by the provisions of theRegistration of Documents Ordinance, the first question we haveto decide is whether the Certificate of Acquisition P8 issuedunder Section 12 (1) of the Land Acquisition Ordinance—Re-vised Legislative Enactments of Ceylon 1938—Chapter 203, “ shallbe deemed ” to be an instrument affecting land within the mean-ing of Section 8 (b) of the Registration of Documents Ordinance.
Mr. Jayewardene’s argument is that it is an order of an auth-ority which purports or operates to create, confer, declare andtransfer the right, title or interest in or over land and as suchunless duly registered under the Registration of DocumentsOrdinance was void against the deeds of the defendant. In orderto test the soundness of Mr. Jayewardene’s argument, it would beuseful to consider Section 12 (1) of the Land Acquisition Ordin-ance which reads : —
“At any time after the Government Agent has made anaward under Section 9, or a reference to the Court underSection 11, and has notified the same to the Governor, it shallbe lawful for the Governor to direct that the land be takenpossession of by some officer of the Crown for and on behalfof His Majesty. And the said officer shall sign a certificatesubstantially in the form ‘ A’ in the schedule and the saidland shall thereupon vest absolutely in His said Majesty freefrom all encumbrances. ”
PATHIRANA, J.—Ooonesekera v. Leelaratne
This Section empowers the Governor, later delegated to theExecutive Committee of the Local Administration, to direct thatthe land be taken possession of by some officer of the Crownfor and on behalf of His Majesty at any time after the Govern-ment Agent has made an award under Section 9 or a referenceto the Court under Section 11 and has notified the same to theExecutive Committee. It will therefore be seen that even thedirection to take possession of the land by some officer of theCrown for and on behalf of His Majesty is not on a document orinstrument but is a direction given by the Statute. Once that isdone the said officer shall sign a Certificate substantially in form* A * in the schedule. Once the Certificate has been signed theland shall thereupon vest absolutely in His Majesty free fromall encumbrances.
It will be next necessary to consider the form * A * in theschedule : —
“ I hereby certify that I have this day taken possession,for and on behalf of His Majesty under and by virtue of the
provisions of the Land Acquisition Ordinance of
, entitled, of the land and premises situated
at , and bounded on the, and more parti-
—" cularly described in the annexed survey thereof. ”
The Certificate merely states that some officer of the Crownfor and on behalf of the Crown had on a certain date taken pos-session of the land and premises. The certificate in form ‘ A ’ doesnot vest title in the Crown and it is therefore not an instrumentwhich creates, confers, declares, transfers any right, title orinterest in or over the land for the purpose of Section 8 (b) of theRegistration of Documents Ordinance. The relevant words inmy view are “ and the said land shall thereupon vest absolutelyin His Majesty free from all encumbrances. ” The land will vestin His Majesty free from encumbrances not on the certificatein Form ‘ A ’ or by reason of such certificate, but by operationof law after the certificate which is only evidence that possessionhas been taken of by an officer, has been signed. For thesereasons we hold that the vesting of the lands in the Crownunder the Land Acquisition Ordinance is not by an instrumentaffecting land within the meaning of Section 8 of the Registrationof Documents Ordinance, but by operation of law. The provisionof the Registration of Documents Ordinance which renders any
VATHIKANA. J.—Ooonesekera v. Leelcuratne
unregistered instrument void as against any instrument dulyregistered has therefore no application to lands acquired by theCrown under the Land Acquisition Ordinance.
Mr. D. R. P. Goonetilleke for the plaintiff-respondent, however,submitted that even if the Registration of Documents Ordinanceapplies to the Certificate of Acquisition as an instrument affectingland, nevertheless, the land having vested absolutely in theCrown free from all encumbrances under Section 12 (1), a newtitle is created in the Crown which extinguishes all previoustitles by operation of law and so good against all persons. Sucha title was not dependent on any transmissible interest whichthe proprietor of "the land or other persons of the land hadimmediately prior to the acquisition. In support of his argumenthe cited the case of Vellaithamby v. The Attorney-General—58NLR—489. It was held in this case that : —
“ Where land sold under the Irrigation Ordinance fornon-payment of irrigation rates due in respect of it ispurchased by the Crown and a Certificate is thereafterissued vesting title in the Crown, all previous titles to theland must, by virtue of Sections 2 and 66 (2) of theOrdinance, be regarded as wholly extinguished or suspended,by operation of law, and a new title is created in the Crownwhich is good against all persons. Accordingly, a subsequenttransferee from the original owner of the land cannot claimtitle to it by priority of registration as against the Crown. ”
Weerasooriya J., held in this case that on the issue of theCertificate under the Irrigation Ordinance there came intoexistence an entirely new title in the Crown to the lands in suitwhich was not dependent on any transmissible interest whichthe proprietor of the land or other person had in themimmediately prior to the sale. He therefore held : —
"In my opinion, as long as the title to the lands in suitremains vested in the Crown all previous title must beregarded as wholly extinguished, or suspended, by opera-tion of law, and a new title created in the Crown which isgood against all persons. The position appears t6 be nodifferent from a decree for partition of land which, it washeld in Bernard v. Fernando—16 NLR—438, creates a newtitle in the parties and which, though unregistered, prevai-led over a subsequent registered conveyance by which oneof the co-owners sold his undivided interests in the landprior to partition. ”
The vesting of the land in the Crown under Section 12(1) ofthe Land Acquisition Ordinance absolutely free of all encum-brances snaps the link of ownership with any persons who were
Ibrahim v. Attorney- General
entitled to the land prior to the acquisition or claimed rightsthereto and creates a new title in the Crown not referable toany previous ownership wiping out all other titles. The questionof competing deeds duly registered from the same source orfrom any other source in respect of the same land to defeat therights of the Crown to the land acquired under the LandAcquisition Ordinance by reason of due and prior registrationwill not therefore arise for consideration.
The decisions of this Court cited at the argument vis., DeSilva v. Weerappay Chettiar—43 NLR 566 . Kanapathipillai vs.Mohamadutamby Levai—15 NLR—177; Mohamed Alt vs.'Weerasuriya—17 NLR— 417, have therefore no application tothe question in issue in this case.
The appeal is dismissed with costs.
Wijesundera, J.—I agree.
Ismail, J.—I agree.
B. D. P. GOONESEKERA, Appellant and K. D. LEELARATNE, Respondent