( SOI )
-Present : Schneider J. and Jayewardene A.J,BABTHOLOMETJS# x. HUTT.
184-—D. C. Kandy, 86.
(Paste Lands Ordinance—Claim for half-improved value—Reference toCourt—Powers. of • District Court-Statement of claim—Parpies . toreference—Ordinance No* 1 of .18971 ss. 6 (b) and 8.
. Where a claim made under the Waste Lands Ordinance before.the. Assistant Government Agent that a land be settled on. thqclaimant upon his paying the half-improved value was referredto the District Court, and where the District Judge declared theclaimant absolutely entitled to a portion of the land in claim.
Held, th&t the. Court had no power to grant the claimant a largerright than that claimed- by him in. >the,-statement .of claim-
Obiter—?The proceedings in -Coqrt should be- confined tp the personsnamed in the reference, except in the special case contemplated bysection 8 of the Ordinance.
PPEAL from a judgment of the District Judge of Kandy ina reference made to Court under the Waste Lands Ordinance,
by the Assistant Government* Agent of Kandy, of a claim made bythe first respondent that an allotment of land called Welikandaofthe extent of 5 acres 3 roods and 8 * 8 perches be settled upon him, onpaying the half-improved value. The statement of claim alleged thatone F. B. Bartholomeusz admitted the right of the Crown to theallotment in question, .and was prepared to pay the Crown half-improved ^alue, but that he was unable to pay, and was, therfore,permitted by the Crown to possess till he was able to pay. It furtherdisclosed-that the first respondent was not the only heir of F. B.Bartholomeusz. In consequence, of this disclosure, five other personswere noticed and made parties to the proceedings in Court. Theyfiled their statements of claim and appeared by the same proctor.
The learned District Judge made order declaring the claimantsentitled to an extent of 1 acre 1 rood and 27 perches, and the restto be the property of the Crown.
The Crown appealed.
S. Obe'yesekere, C.G., for defendant, appellant.
H. V. Pererat for claimants, respondents.
March 19, 1925. Schneider J.—
This action originated by a reference made to the District Courtof Kandy by the Assistant Government Agent of the District ofKandy acting under the provisions of section 5 of the Ordiiy>^e
( 502 )
No. 1 of 1897 relating to Claims to Forest, Chena* Waste, andUnoccupied Lands. V The only claimant named in this referenceis the 'first respondent to this appeal. It is alleged in the referencethat he made a claim to an allotment of land called WeUkanda ofthe extent of 5 acres 3 roods and 8.8 perches, depicted as lot No. 1in preliminary plan No. 7,002 (marked Z); and bounded on the northby Welikanda (lot 2 in preliminary plan 7,001), on the east byT. P. 50,120, on the south by Mahaiyawa-ela, a glass field of theCeylon Government Railway (Crown), and Welikumbura claimedby the Ceylon Government Railway (Crown) and Welikumburaclaimed by Sirs. S. A. Carthigaser, on the west by T. P. 325,690,T. P. 325,233, T. P. 825,232, Welikanda claimed by Mrs. B. A.Carthigaser, and Oruwaketuwawatta claimed by Mr. George E. deLa Motte.
The first respondent appeared before the Court and duly filed *statement of claim, in which he does not traverse the correctnessof tiie description of the land as given in the reference, but sets outthat a “ land called Welikanda of 12 acres and 3'2 perches, save andexcept an extent of 5 acres 3 roods 8 perches to the south by the side ofMahaiyawa-ela, belonged to one Mr. Gomis who, on deed No. 9,040of 1873, sold and transferred the same to F. B. Bartholomeusz. ”He does not give the boundaries of this land (paragraph 1).Clearly this paragraph means but one thing, and that i3, that neitherMr. Gomis nor Mr. Bartholomeusz, by virtue of the transfer byMr. Gomis, was entitled to the allotment of 5 acres 3 roods and 8perches, which for convenience I shall hereafter speak of as the landin claim.
In the very next paragraph of his statement, the first respondentproceeds to allege “ that the said F. B. Bartholomeusz planted thesaid land as a village garden ever since his purchase and possessedthe said block of land till his death M (paragraph 2). The words
said land ” were probably intended to mean the larger allotmentof 12 acres, but whether that allotment Or the smaller one of 5 acres8 roods and 8 perches be meant the planting is attributed to Mr. F. B.Bartholomeusz alone. Then follow the allegations in the fifth para-graph that Mr. F. B. Bartholomeusz admitted the right of the Crownto the allotment of 5 acres 3 roods and 8 perches, and was preparedto pay the Grown half the improved value, but that he was unableto pay, and was, therefore, permitted by the Crown to possess tiU hewas able to pay. The first respondent- asks that the land be settledon him now upon his paying the half-improved value.
As regards the balance of the 12 acres, he claims that on accountof the plantations and possession of himself and his predecessors,and asks that, if it should be held to be Crown land, it should besettled on him upon terms. Accordingly, it is clear from his statementthat the first respondent does not claim, nor did his deceased fatherclaim, any more than a right to a transfer of the allotment of 5 acres
( 303 )
3 roods and 8 perches upon payment of its half-improved value. If 1988.the balance extent of 6 acres and 35'2 perches does not come within go^^OBRthe land under reference, no question arises in this action as to J.any rights in it which the first respondent may claim.Bartiudo*
Although the first respondent asked that both allotments besettled on him alone, he disclosed*in his statement that he was notthe only heir of his father through whom he claimed. In conse-quence of this disclosure, upon the initiation of the defendants'proctors fire persons were noticed, namely, the second, third, andfourth respondents to this appeal and two others. These latter, whoare a brother, and the wife of a deceased brother of the first respondent,failed to appear upon notice and made no claim in Court. The second,third, and fourth respondents filed a statement qf claim which isidentical in all respects with the statement of the first respondent,except that they too claimed a declaration of right in themselvesalone without including the first respondent. .All the respondentsfiled their statements and appeared by the same proctor. Theapparent conflict of claims is obviously due to a little want of carein the drafting of the pleadings. I will, therefore, regard all therespondents as making a claim jointly.
From what I have said so far, if the land in claim, that is, theallotment of 5 acres 3 roods and 8 perches referred to in the statements,
. -can be identified with the land under reference, it would be apparentthat none of the claimants claim any larger right in the land underreference than to a grant under the provisions of section 8 of the1 Ordinance No. 12 of 1840. There is no difficulty in identifyingthe land under reference. Both parties call the land Welikanda.
‘ The extent they give is identically the same, viz., 5 acres 3 roodsand 8 perches, the difference of 8 of a perch being negligible. In
the reference the land is said to be bounded on the south by theMahaivawa-ela, a grass field belonging, to the Crown, a portion ofWelikanda also belonging to the Crown, and a portion of Welikanda,
*nuw of Mrs. Carthigesar, but which, according to the first respondenthimself, formerly belonged to the Crown. In the statements .theland in claim is described as being the southern portion of the12-acre allotment and lying by the side of the Mahaiyawa-ela.
p Tliis side must be the north side of the ela. From the plan £ it isapparent that the land under reference lies wholly to the north'of the ela, and that there is no other portion of Welikanda which
touches the ela. If the land in claim be to the south of the ela,
– there was no necessity to refer fo it at all in connection with the' land under reference, as it- lies entirely to the north of the ela.r These facts lead to the conclusion that the claimants intended to: say, although they do not say so expressly, that the land underr reference is the allotment of x5 acres 3 roods and 8 perches mentionedr in their statements.' The land in claim being identical with theHand under reference, there is but one issue between the parties,
( 504 )
namely, whether the conditions laid down in section 8 of theOrdinance No. 12 of 1840 had been fulfilled so as to entitle therespondents to a grant of the land upon payment of the half-improvedvalue. Eight issues were framed and tried, raising questions oflaw and ownership, but there was no issue specifically raising thequestion which is the only matter in dispute according to thepleadings. Issue 8—which is: “Assuming the issues framed tobe answered in favour of the claimants,, are they entitled to a declara-tion of their title ’’—might possibly be regarded to hove beenintended to raise that question, but it is worded vaguely if thatwas the intention.
After the trial of the issues framed, the learned District Judgedeclared the claimants entitled to an extent of 1 acre 1 rood and 27perches, described as lot No. 11068 in preliminary plan No. 4,124(A 3) being the southern portion of the land under reference, and therest to be the property of the Crown. He made no order' as tocosts.
It is from this decree the defendant has.preferred this appeal.
The learned District Judge has taken much pains in endeavouringto arrive at a correct decision in this action. It was his insistenceafter the trial .was closed, which resulted in the production of severalmaterial documents from the Kachcheri. He visited and inspectedthe land. He has considered and discussed at some length in.hisjudgment the documentary and oral evidence. Therefore, it iswith much reluctance I find myself constrained to dissent from^him. His order is obviously wrong in two respects. He shouldnot havs declared the claimants to be the owners of any portionof the land under reference since the claim they made was muchless. It was only under section 8 of the Ordinance No. 12 of 1840.No doubt section 16 of the Ordinance No. 1 of 1897 empowers himafter inquiry to pass such order as he may consider just- and proper.But his order cannot be regaided as just and proper even upon hisown findings of fact. He has found that the claimants apd theirpredecessors had cultivated and improved and had possessed oiilythe portion he has awarded to them, although they claimed thewhole of the land under reference. According jo that findingthey had no claim to the rest of the land as against the Crown.There is, therefore, no room to regard his order as an adjustmentby which he gave the claimants larger rights in. a smaller portionof land in lieu of smaller rights which they had in a larger portion;Next, I am doubtful that he was justified in including the twopersons, whose names are given as the first and second claimants irihis decree, among the claimants in whose favour he has given adeclaration of title, inasmuch as those persons neither appeared norpreferred any claim, directly or indirectly, either before the AssistantGovernment Agent or himself.
( 505 )
Upon the evidence which I shall presently proceed to consider,I am of opinion that the learned District Judge's order is notsustainable, not only in.those two respects, but at all. But beforeproceeding to consider the evidence, I wish to refer to a matter whichis not of any importance in this action or directly concerned with itsdecision, but which it might be necessary to consider in the future.I am doubtful that it was the correct procedure to add the second,third, and fourth respondents as claimants. They did not appearbefore the Assistant Government Agent, nor did any other personmake a claim before that officer on their behalf. The reference gaveonly the name of the first respondent as a claimant. If the otherrespondents had been disclosed to him as persons interested, theirnames * should have appeared in the reference as required by section6 (b) of the Ordinance. The provisions of the Ordinance requirecertain preliminary proceedings to be held1 before a referenceis made. Those provisions also appear to Suggest that the proceed:ings are confined to the. persons named in the reference, except inthe special case contemplated in section 8 which has no applicationto this action. The Civil Procedure Code does provide for. theaddition of parties after the initiation of an action in Court, andsection 18 of the Ordinance No. 1 of 1897 enacts that the proceedings,under the Ordinance shall be regulated by the Civil Procedure Code,but except in so far as they are applicable and except where theOrdinance contains special provision. Having regard to theprovisions of the Ordinance, it seems to me that- it was- not contem-plated that parties should be added after a reference had been madeto Court. It is possible to conceive cases where such an additionwould be desirable, but on the other hand, there is the possibilitythat if those parties had appeared before the Government Agent,there might have been no need for a reference at all. Section 18which gives the right of appeal in the exercise of which this appealhas been preferred gives that right only to " any party to thereference. ” I find some difficulty in regarding any party addedto the action after the reference has cotpe into Court as a party tothe reference. But as the question does not arise upon this appeal,
1 shall now proceed to consider the evidence. The burden ofproving their claim lay upon the claimants as plaintiffs' (sections 7and 12).
According to the admissions contained and the claim made inthe statements, as I have already pointed out, the issue which theclaimants had to prove was that the conditions laid down in section8 of the Ordinance No. 12 of 1840 had been complied with. Thatis, they had to prove that-they or their predecessors had takenpossession, of, and cultivated, planted, and otherwise improved theland under reference, and had held uninterrupted possession thereoffor not . less than1 ten nor more than thirty years. Although this,issue was not specifically raised, yet it is not possible, to ignore the
. ( 506 )
fact that it is the essential issue in the action. Section 140 of theCivil Procedure Code makes the allegations in the plaint part ofthe material to be taken into consideration in the framing of issues.According to the provisions of the Ordinance No. 1 of 1897, theclaimants are in the possession of plaintiffs, and their statementsare, therefore, in the position of a plaint in any ordinary action.That being so, the claimants must be held bound by their admissions,and their claim limited as having been set out to that granted bysection 8 of the Ordinance No. 12 of 1840. But as the issue of titlehas been raised and tried, and as the evidence regarding the issuearising upon the admissions must be 'a part of the evidence on thelarger issue of title which has been tried, I shall consider the evidencebearing upon the issues whifeh have been tried aii.d upon which theDistrict Judge has based his judgment.
The decision of the District Judge largely rests upon his finding—
that the land under reference formed part of the Bakawalpanguwa and was appurtenant to the adjoining Welikumbura; and.
that at the time of the coming into operation of the OrdinanceNo. 12 of 1840 the southern half of the land was already a watta plantedwith coffee, jak, and fruit trees like any village garden. I proposeto examine these two findings first. I shall first consider whetherthe land under reference came within the operation of the Ordi-nance No. 12 of 1840 as being a chena at the time of the cominginto operation of that Ordinance. If the land at the date was chenaland, it would be presumed to be the property of the Crown as it iswithin the Kandyan Provinces unless the ’claimants' established atitle through a sannas or grant. (See section 6, No. 12 of 1840, andthe Attorney-General v. l*unchiralay1 Hamine Etena. v. the AssistantGovernment Agent, Puttalam,3 and the Attorney-General v. Apjnt-hamyr) It would make no difference to that presumption thatthe land formed part of the Bakawal panguwa. No onepretends that anyone had a sannas or grant. The OrdinanceNo. 12 of 1840 came into operation in October, 1840. As to whatwas the nature of the lafid at that date, the only proof adduced isthe documents marked P 8 and P 0 which contain the evidenceproduced at an inquiry by the Government Agent upon an appli-cation by the first respondent’s father and two brothers of thefather for a certificate that the Crown had no claim to an allotmentof land of nearly 18 acres in extent. This application was madeby the document D 1 in 1856. The southern boundary of the landwas given as Welikumbura in this application. The land underreference was, therefore, probably included in that land. Theyclaimed to have purchased it from one Mr. C. G. Gomis upon a
Sinhalese Bill of Sale ” which was said to be annexed to theirapplication. They stated that Mr. Gomis had purchased from three
1 (1919) 21 X. L. R. 51.* (1922) 23 N. L JR. 289.
(1922) 24N. L. R. 112.
< 6W )members of the family of Tollekumbure Duraya, who and whoseancestors had possessed it from time immemorial, and that Mr. Gomishimself had posssessed for fifteen years. One of the applicants—Mfc J. G. Bartholomeusz—two Durayas, and one Tamby Lebbe gaveevidence at the inquiry. This Mr. Barthdlomeusz and all his wit-nesses called the land Welikumburo hem. Mr. Bartholomeusz statedthat at the date of his purchase the land was covered with jungle eightor nine yearn old, and that while he was clearing the land he foundsome coffee and jak trees, about twelve or fifteen years old, over anextent of about 2 acres. He said he knew nothing of the previoushistory of the land. There is much conflict in the- descriptions, bothns to the extent and the boundaries of the land given by the otherwitnesses of the liena or ohena they spoke of. Two of them makeout that it is bounded on all four sides by other henas, while oneof the Durayas would have it that it is bounded on one side by ahigh road, on another by an ela, and on the third by a kumbura<field). But they are all agreed that the land had been cultivatedonly with kurakkan and paddy (I take it hill paddy) before thesole to Mr. Gomis. Thoge are two cereals ordinarily planted onehenas. They are agreed, too, that at the time of the sale to Mr.Gomis the land was covered with forest of the same age as the forestou the surrounding portions of land, that is, about ten to fifteenyears old. That is the age of forest growth to be usually found onchenas cultivated at long intervals. This is all the evidence thereis as to the nature of the land at the time it passed into the handsof Mr. Gomis. As to the date of that event, it can be fixed withsome degree of accuracy. There is the assertion in the applicationof 1856 by the Bartholomeusz brothers that Mr. Gomis possessedthe land for fifteen years, which would appear to fix the date of hispurchase as 1841. One of the Durayas stated that the transfer to Mr.Gomis was about thirteen years, the other about twenty years, before1856. These statements are unreliable. Tamby Lebbe said thatit was in 1841 or 1842. The first respondent's evidence at this trialis that the deed in favour of Sir. Gomis was dated 1859, and thatin favour of his father 1873. His document P 6 lends some supportto the latter .part of this statement. Neither deed is now forth-coming, and it would appear that copies cannot be now procured. ItLs obvious from the* application D 1 that the date 1859 given by thefirst respondent is wrong, and that it should be 1856 or earlier. TheDistrict Judge thought that the oldest trees he found on the landwere about seventy-five years. That would fix the date of the plant-ing as 1850. I think, therefore, that a fail* inference to be drawnfrom the evidence is that Mr. Gomis had purchased in 1841 or 1842.As the land at the date of his purchase was a chena, the previsionsvi the Ordinance No. 12 of 1840 would apply to it, and it would bepresumed to be the property of the Crown, unless that presump-tion is rebutted by the production of a saunas or grant. That
( 608 )
presumption -■has not been rebutted..; Accordingly, it must, bftj hsldthat the – land1' in claim is .Grown- ■ land, 'The admission .9^ theclaimants, jn their statements, that it- was Crown land, is, .therefore,in accordance with the evidence which they produced. . I wouldaccordingly- hold that the land under reference is Crown- .land.In May, 1867;, after the inquiry, the Government Agent,1 informedthe applicants .that the Deputy Queen’s Advocate was of opinionthat they had . not.-adduced, any ev4den.ce . to entitle them-to■! a certificate against the right-of. the Crqwii in. regard to any portionof the land.”' B.ut he added “ I .arn, however, prepared, .althoughyou cannot .claim-it as a right, to secure your- application to -purchase,on payhient: of half its improved value,.-;the portion cultivated- byMr. Gomis. • But. the rest..of the-land-will be surveyed and sold onagcount of. Government. Here we have-an admission that :V theportion- cultivated • by Mr. Gomis came within the .17 .acresmentioned' in- • the. application,.. .but; we do. • not find, as the fimtrespondent .would have Us believe, that the Crown offered to granta transfer on payment of half the. improved value.. The .Govern-ment Agent’s offer'was only to .secure the purchase upon such , terms.The -plans – produced in- the action: -show that a.ll the Surroundinglands had been sold by the Government, for. they are described aslots:in title plans . issued by Government for lands alienated byGovernment. -Although the learned -District Judge, accepted., theevidence as proving that the land mentioned in the application D„ 1—formed part of the Enkawal. jjanguwa and was an appurtenant, tothe field Welikumbura on the south, I do:.not think the.1 evidencejustifies his conclusion. As to those statements we have only, theevidence, of the two Durayas who gave evidence in the -inquiryin 1866, but, on the other hand, we have the fact that the Crowndeclined -to accept either statement since it claimed .the. land andsold portions of it, and to this day it owns two portions of the fieldto the south. It also sold the only other portion of the -field-'toMrs. Carthigaser. But-, after all, it. makes no difference whetherthe land was part of that 'panguwa and .was. .an appurtenant .to afield, because being-a chena it. is swept within the influence, of -theOrdinance.x
As the conclusion.I have come to so far, is, that the land unde1'reference is Crown .land, it is now .necessary to ascertain whetherthe. claimants have made out a case for. a. grant- under section- 8 ofthe Ordinance No. 12 of 1840. For this purpose it is necessary tocbnsider the history of the land since 1856. That history falls intotwo distinct periods. The first- period is that between’ 1856 and1893, which is tlie date of t-he death of Mr. F. B. Bartholomeiis/.,the-father of the first respondent. The secphd period is that whichfollows after 1893. The only Oral evidence in support of the caseof the respondents is that given by the first respondent. " His ^evidence ; was to the following effect:—The land under reference.)
i( <500 )
at .tiie •time’ of his father's death was- planted. * Adjoining itwag a 190ft*jungle portion'from which firdwood wa3 taken by his lather: Onthe land under reference thdre were‘three coconut' treed, * one of J.which is-, still in existence. There were also breadfruit, kitul, and Barfhti&-arecanut trees. There were also about half an acre under tea. His mea&v.father took-the produce of all the trees till his death. He was toldby. his father that he occupied the land .under a ticket of occupancyuntil he* was . able to pay half the- improved .‘value of the land. Thedocuments referred to by the witness show that what he- calls' a" Ticket of Occupancy " is a lease of the land. Hesay^ hiV-latheroccupied the land on a ticketlof occupancy in 1889 and 1890, butsince 1891 obtained no ticket of occupancy but continued to "occupythe land. 1 cannot find in his evidence anywhere a statement thathis father occupied-, any portion of the land under referenceindependently of the Crown. His evidence does hot inspire – mewith any confidence as to its. accuracy. He seems to spea^toosely,and his evidence is contradicted at several points by the docu-mentary evidence .on record*: The only document showing, -thathis father had a lease of the land is D 4 of March, 1889. . It-is a leaseof the northern portion of the land under reference of thje. extentof 8 acres 2 roods and IQ perches, and show in plan No. 228 (A 1):
The southern-boundary of this portion -is-given as Crown* land leasedto Casi Lebbe.This lease clearly ^proves that .the claimants; arehot entitled -to.- the portion of land comprised in the le&se,-: becausetheir father acknowledged the title of the Crown :by taking b leasepf.it* If it can be ascertained what is the Crown land to the south,of it which was leased to Casi Lebbe, it would considerably .weakenthe.evidence of the claimants that the deceased, F. B. Barthplonaeusz,ppssessed any portion in the land under reference – in – -1889. orthereabouts. The-District Judge thought that the land-leased toCasi Lebbe did not include the lot No, 11068 which he has allottedto the claimants, and that the.-claimant’s father was, at the-date of thelease,- in possession of lot No. 11068 independent of the Crown.: Theland,leased to the claimants' father is shown in plan A 1.. The planA 3 shows- lots Nos. 0 711 and 11068 separately. When A* 3 issuperimposed over plan Z, it would be seen that-the land underreference are the two lots marked Nos. 0 711 and 11068 in A 8;
I superimposed plan A 2 upon plan A 3 and drew on A 2 in brokenpencil- lines the boundary between lots Nos. 0 711 and 1*1068,and also the outline of lot No. P 711. I also drew on that plan, ina firm' line the southern boundary of the land shown in A 2 as leasedto, the first respondent’s father: The District Judge thought thatthe.land-leased to Casi Lebbe was the small extent lying betweenthe firm line and the broken line drawn by me on-A 2. -That he iswrong in thinking, so .is apparent when plan A 2 js .superimposed onA '4 whieh shows that the land leased to Casi Lebbe included lotNo. 11,068 and either a part or the whole of lot P 711. Besides, it
is not tiie ease of the claimants that the deceased, Mr. Barthotameuss,occupied any portion of the 1and under reference since 1856, exceptunder what the first respondent calls a ticket of occupancy. Iftiie first respondent’s evidence is to ,be accepted, it would show thateven though he is mistaken in thinking that his father’s leaseincluded lot No. 11068, yet, his father and himself both consideredthat the father’s occupation of lot No. 11068 was by virtue of thelease. I therefore conclude that when the first respondent’s fatherpossessed in 1889 and 1890 the northern portion of the land underreference, the southern portion, or at least a part of it, was occupiedby Casi Lebbe upon a lease from the Crown. In this connectionit is important to notice that the name of any one of the Bartholo-meuszs does not appear in the description of .the abuttals of the landin the lease to the deceased, Mr. F. B. Bartholomeuss, showing thatat the date of that lease the Crown did not regard any of the abuttalsas being claimed by the Bartholomeusz. On three sides of thatleased land the boundaries are given as the land leased to differentparties presumably by the Crown. The documents D 5, D 6, D 7,and T) 8 prove that in 1891 Mr. F. B. Bartholomeusz was permittedto cancel the lease in his favour, and that a resale of the lease of thetand had been ordered by the Government Agent. In this connec-tion I should have mentioned another material document, namely,P 11 dated August 4, 1890, which the first respondent admits waswritten by his father to the Government Agent. In this letter hetells the Government Agent that in consideration of the greatdisappointment in regard to their clpim for the land at Mahaiyawa,he would beg the Government Agent to grant him lot No. 0 711 onpayment of half the improved value “ in lieu of the lot No. P 711 nowoffered to him.” This letter clearly indicates that at that date thefirst respondent’s father had not been offered a grant of lot No. 0 711but of the land to the south-west of it, namely, P 711, or, in otherwords, that the grant offered was to a portion of land entirely outsidethe land under reference. The letter also says that the writercould hardly get a sufficient return to make the lease money, Bs. 46,payable for “ the lot No. 0 711,” which is the northern portion ofthe land under reference. There is no document proving whathappened with regard to the request about lot No. P 711 containedin that letter. There is $o specific evidence as to what happenedin the period which intervened between 1891, when the firstrespondent’s father surrendered his lease, and 1897, when theGovernment Agent granted lease D 9 in favour of Araby Pasha.In May, 1897, the Crown granted to Araby Pasha a lease for ten years.This lease beyond any doubt was of the land under reference.The plan upon which the lease was given is that shown in thetracing marked A 2 and is the land comprised of the lots Nos. 0 711and 11068. It is not disputed even by the first respondent thatAraby Pasha possessed the land under that lease. The Pasha left
( Ml )Ceylon, it is said, about three years after the execution of the lease.The history of the possession of the land after his departure isdisclosed in the document D 10 dated November, 1908. The Pashahad left the land in charge of one Abdul Hamit who was found inpossession of it in 1903 by the Gravets Muhandiram of Kandy.This document shows that Abdul Hamit had attempted thecultivation of plaintains on the land, but owing to its sterility hadabandoned the plantation. Mr. Dullewe was the Muhandiramfrom 1906 to 1924. In his evidence given in this action he' saysthat his predecessor had been in possession of the land presumablyon behalf of the Crown, although he does not say so expressly, andthat Mr. Dullewe himself, a few months after his appointment, wasput iu possession of the land on behalf of the Crown. This oralevidence of the Muhandiram is corroborated by the document D 11dated July, 1907, in which he reports to the Government Agent thathe took possession of the land leased to Araby Pasha on behalf ofthe Crown in August, 1907. By D 12 the Muhandiram was directedto see that the land was not encroached upon, and also to furnisha periodical report after personal inspection. The Muhandiramsent the report D 2 .dated August, 1908. In this report he statesthat he visited the land several times, and on one visit found twowomen removing firewood, whom he prosecuted in the Police Court.In the report he also refers to a man called Pina as the lessee of theland to whom he had given a warning against allowing cattle totrespass on the land. The report shows that the man Pina had alease of two kitul trees on the land. This report appears to havebeen rendered to the Government Agent upon an application madeby one Hinno Appu, a Fiscal's peon, for a lease of the land. TheMuhandiram reported against the lease being granted, as somevaluable trees were just beginning to grow upon the land. He alsopoints out that the land is reserved land. This witness also statedin his evidence that the first respondent once claimed the land whenhe visited it, and that he then informed the first respondent that hehad nothing to do with that claim. He also says specifically thathe was not aware of the claimant being in possession of the land.He speaks, too, of a lease of the land being given in 1918, during therice crisis, to a milk man to be planted with vegetables, and saysthat the milk man made some plantations. Upon this documentaryevidence I think there is but one holding possible, and that is, thatneither the first respondent’s father nor the first respondent had anypossession till 1918. If any produce of the trees of the land hadbeen taken by them, it was not taken in such a way as to interferewith the dealings of the Crown with the land. Jn December, 1910the first respondent made an application to the Government Agent,in which he stated that he had been given to understand that hisfather was the owner of a land called Welikanda of the extent ofabout 8 acres, and that bis father had not been in a position to pay
( 512 )
half the improved value of the laud when called upon to do so bythe Government Agent, and: that at that time his father was alloweda lease of the land. The first respondent then proceeded to* ask fora grant of the land upon his paying half the improved value. Thisapplication was referred to Muhandiram Dullewe for report. Hereported in 1911 that he had taken possession of about 4 acres ofthe land which had been leased to Araby Pasha about four yearsbefore^ the date of the report, and that the land was at that date inhis charge. He also pointed out that the Government had reservedthe whole of Welikanda as a' segregation camp in the event of anoutbreak of rinderpest: The report states that a portion of theland is forest. The oral evidence also proves that the Crown hadfelled and removed timber from the land within very recent times.
-1 do not think it necessary to consider the evidence in the casein any further detail. To my mind the weight of the evidence isentirely in favour of the defendant. It is not possible upon thatevidence-to hold that the first respondent's father,, or the first res-pondent'or any of the other respondents, have held uninterruptedpossession .of the land under reference for not less than ten years.That1 being so, the respondents are not entitled to a grant of the land,or any portion of it, under the provisions of section 8 of theOrdinance No. ,12 • of 1840. .For these reasons I would set. asidethe order of the District Judge,, and declare that the whole of theland under reference is the property of the Crown.
As regards cost, I think the appellant is entitled to the same inboth Courts. At the time of the notice given by the GovernmentAgent, namely, in April, 1921, the upper portion of the land wasforest and the other land was “ unoccupied land-’ within themeaning of section 24 of the Ordinance No. 1 of 1897, as it was landwhich had. not been in the, uninterrupted occupation of any privateperson or persons .for a period, exceeding five years next before thenotice under section 1.
. . Nevertheless, the evidence on record shows that such: plantationsas are now to be found .upon a part of the land were made either byMr. Gomis, or by Mr. F. B. Bartholomeusz.. The interest of Mr.Gomis in the land, whatever that interest was, was purchased bythe three .Bartholomeusz brothers. The respondents claim as heirsof. one of the original purchasers. They are not even all the heirsof that purchaser. For some years the first respondent has beenendeavouring to obtain some concession from the Government inregard to some portion of • Welikanda. His* claim. is not withoutsome foundation, and although it has no legal existence, it-seemsto.me that.his claim is one. which should receive some considerationat. the hands of Government.
Jayewardene A.J.—I agree.
Printed at tee Government Tbess, Ceylon.
BARTHOLOMEUSZ v. HUTT