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Present : De Sampayo J. and Schneider A.J.
GUNAEATNA v. LOCAL BOAED, KALUTAEA
D. C. Kalutara, 7,686.
Permission granted by Chairman, Local Board, to build—Encroachment—Is Board estopped from questioning plaintiffl’s title l—Notice unders. 68 oftheRoadOrdinanceto plaintiff to establishtitle—
Action brought against Local Board—Must Crown be *suedt
The Chairman of the Local Board of Kalutaragranted the
plaintiff permission to erect certain buildings, and made it a condi-tion that the buildings should be so erected that the eaves oi theroof should be within the live fence which formed the boundary ofplaintiff’s land by the road. The plaintiff filled up the laud anderected certain buildings on it. Thereafter the Chairman of LocalBoard issued notice, under provisions of section 88 of the BoadOrdinance, requiring him to take legal proceedings to establish histitle to the lots in dispute, and for preventing the removal of theencroachmentbytheBoard. Theplaintiff brought thisactum
against the Board, and contended that the. Board was estoppedfrom denying plaintiff’s title.
Held, thattheBoardwas notestopped, and that theproper
party to be sued was the Board and not the Crown.
rJ“lHE facts appear from the judgment.
Weeraratne, for plaintiff, appellant.
E. W. Jayawardene, for defendant, respondent.
October 3, 1919. Schneider A.J.—
The land in dispute in this case consists of lots 4, 5, and 6 in thetracing marked D 1/G.S.S. at page 54 of the record of a survey madein June, 1917, by Mr. A. E. Felsinger, and authenticated by theSurveyor-General on August 18, 1917. This appears to be the surveyreferred to in the plaint as made by Mr. D. W. (of H.) Felsinger,and dated August 18, 1917, and in the answer as the plan “ heretoannexed, ’ ’ without further description. On the record there is noplan annexed to the answer.
I conjecture this is the survey plan referred to as plan’ A in theissues dated February 18, 1918, submitted on behalf of the defendantcorporation, and the plan referred to in the plaintiff’s issues, and alsothe plan referred to as D 1 in the proceedings.
In 1875 the Crown acquired inter alia lots No. 6,008 and 0,007 inpreliminary plan No. 3,305 for an approach road to the bridge acrossthe Kalu-ganga. This bridge links the public road from Colombo
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Qunaralna vLocal Board,KahUara
to G-alle at this point. The evidence in the case proves beyond anydoubt that the lots in question comprise the said lot No. 6,007 and aportion of the said lot No. 6,008. The evidence of Mr. Felsingerand also of Mr. Souza called by the plaintiff establishes this fact.The plaintiff claims the lots in question as portions of Paranapalliya-watta, which was partitioned in D. C. Kalutara, No. 5,191.
He relies on plan No. 194 dated March 30, 1914, filed in thataction, of which he produced a copy marked P 1 in this action.This plan, it appears to me, does not show that the portions indispute fall within the land which was the subject-matter of theaction for partition. But even if they did, and they had been dealtwith in that action, that would make no difference, because, if theybe regarded as Crown property, a partition action to which theCrown was no party would not affect the title of the Crown; while,on the other hand, if they be regarded as a road, being aroad reservation, they are incapable of private ownership. The plain-tiff, therefore, has no paper title to the lots in question- He claimsthem also by prescription, on the ground that the Crown has notpossessed them for over forty years.
This claim is not maintainable in view of the provisions of section90 B of the Boad Ordinance of 1861, as amended by OrdinanceNo. 23 of 1910, which preclude the acquisition of any rights in respectof roads by virtue of possession or user. The land in question is aroad within the meaning of the Boad Ordinance of 1861, becausethe evidence points to the conclusion that it adjoins the Colombo-‘Galle road, and has been reserved for the protection or benefit ofthat road. The plaintiff also pleaded that he had improved portionsof the land in dispute by filling them up and erecting certain build-ings on them, and that the defendant corporation had admitted histitle to them, and was, therefore, now estopped from denying thattitle. He claimed for this reason that the defendant corporationshould either pay him Bs. 6,000 as compensation, or be directed toconvey lot 4 to him for Bs. 200.
It would appear that the foundation of the estoppel pleaded isthe fact that’ the Chairman of the Local Board had granted theplaintiff permission to erect certain buildings on Paranapalliyawattain 1914, and in granting permission had made it a condition that thebuildings should be so erected that the. eaves of the roof should bewithin the live fence which formed the boundary of plaintiff’s land.In his evidence the plaintiff does not expressly state, nor is there anyother evidence, that the buildings are within the fence in question.But, even assuming them to be, I entirely fail to see that anyestoppel is or can be established.
There is no proof that the defendant corporation intentionallyrepresented to the plaintiff that the portion of land in disputebelonged to the plaintiff, and thereby caused him to believe thatthey belonged to him. Neither the plaintiff nor the defendant
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corporation at the date of the application for permission to buildcould have had the question of the boundary in view. Even if the
Chairman had the authority to permit the erection of the buildings, A.J.it does not follow that any act of his beyond the granting of thatv
permission will bind the Board. Furthermore, the Board is a Local Board,corporation vested with certain rights and duties for the benefit of Kalutarathe public. Those rights and duties are expressly defined. Thereis no power given to a Board by any admission to divest itself oftitle in respect of a road or other property held upon trust for thepublic. It seems to me that no estoppel can be pleaded in bar ofany proceedings by a Board to vindicate title to a rcrad. I, therefore,think that the plaintiff has not made out a case for compensationto be paid to him by the defendant corporation, nor for compellingthe defendant corporation to convey any portion of the land indispute to him. The defendant corporation can only deal with aroad according to the provisions of the Boad Ordinance or theLocal Boards Ordinance, 1898.
The plaintiff was driven to this action by a notice (P 9) under thehand of the Chairman of the defendant corporation issued under theprovisions of section 88 of the Boad Ordinance requiring him totake legal proceedings to establish his title to the lots in* dispute,and for preventing the removal of the encroachment by the Board.
Section 65 of the Local Boards Ordinance vests in Local Boards,as regards roads within Local Board limits, all powers, duties, andresponsibilities vested in Provincial or District Committees under theBoad Ordinance. The defendant corporation is, therefore, theauthority empowered to act in this instance under , the provisions ofsection 88 of the Boad Ordinance and the person to be sued.
But, most inconsistently it seems to me, objection was taken by thedefendant corporation that it was wrongfully sued, and that not it,but the Crown should have been sued, as the land was the propertyof the Crown. If the land belonged to the Crown, then the notice,under section 88 was bad, because the procedure there laiddown applies only to thoroughfares. A thoroughfare is not the propertyof the Crown, but of the public. The land in claim does not belongto the Crown, but to the Local Board for certain public purposes.
I am, therefore, unable to agree with the learned District Judge thatthe plaintiff’s action should be dismissed on this ground.
For the reasons I have already given I hold that the said lots donot belong to the plaintiff, but are part of the road reservation. Theappeal is accordingly dismissed, with costs.
De Sampayo J.—
I also think that this appeal fails, and should be dismissed, withcosts.