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Present: Fisher C.J. and Drieberg J.
HEENMAHATMAYA v. L. R. P. ESTATE & Co., LTD.
75—D. C. Ratnapura, 4,814.
Service tenure—Chena land—Obligation to give share of produce—Com-mutation—Ordinance No. 3 of 1870.
The obligation to give a share oi produce from chcna land is aservice that may be commuted under the Service Tenures Ordi-nance.
^^PPEAL from a judgment of the District Judge of Ratnapura.
H. V. Perera (with Weerasooria), for plaintiff, appellant.
H. H. Bartholomeusz, for defendants, respondents.
August 30, 1929. Fisher C.J.—
In my opinion it is clear that the obligation “ to give 1/20 shareout of chenas as otu ” is a service to which the Service TenuresOrdinance, 1870, applies, and the extracts from a register madeunder that Ordinance have rightly so treated it. That being so,it is not necessary to deal with the question discussed by the learnedJudge, namely, whether “ when the chena lands are changed intotea and rubber estates are the owners still liable to give 1/20 of theproduce to the temple.” The question was raised in argumentbefore us as to whether the order for commutation had been in factmade by the Commissioners or whether they had merely made anassessment for the purpose of commutation. In my view it must
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be taken that an order for commutation was actually made, and 1929that being so it is clear that no dues were paid for a period of more pishkbC.J.than ten years prior to the bringing of the action. That being so He^~hatthe claim is barred by section 24 of the Service Tenures Ordinance, maya v. L.R.
1870. But even assuming that the Commissioners did not proceedbeyond assessment, in my opinion the same result follows. Ingiving judgment the learned Judge says: “ But even granting thatthe payment by other nilakarayas would operate to prevent defend-ant company from pleading prescription, is the evidence sufficientto prove beyond doubt that services were performed or commuteddues and otu paid during the period of ten years prior to theinstitution of this action? I do not think so. The priest saysthat a book was kept at the temple in which the services performedand the payments made by the nilakarayas were entered. "Why isthat book not produced? It would be the ‘ best ’ evidence on thepoint, and if the best evidence is not produced, other evidence mustbe regarded with suspicion.” That view taken by the learnedJudge appears to be amply justified by the evidence, and I do notthink that a subsequent remark in the judgment can be taken as acontradiction of that finding which, as I have said, seems to be theproper finding on the evidence. The result therefore is that theplaintiff’s action is barred, and the appeal must be dismissed withcosts.
Diubbebg J.—:I agree.