Hethuhamy v. Boteju.
Present: Nihill J.
HETHUHAMY v. BOTEJU.
128—C. R. Ratnapura, 281.
Land Settlement Ordinance (Cap. 319), s. 8—Effect of settlement order—Vestingof title in claimant free from all unspecified interests—Right of bona fidepossessor to compensation.
Under section 8 of the Land Settlement Ordinance the effect of – asettlement order is to declare the Crown or any person to be entitled toa land or such share or interest in the land free from all encumbrancesand to the exclusion of all unspecified interests.
The words “unspecified interests” refer to unspecified interests in thetitle and they do not deprive the right of a bona fide possessor of the land
to compensation for improvements.
> 33 N. L. R„16y.
– L. R. 9, C. P. 446.
84 .NIHILL J.—Hethuhamy v. Boteju.
PPEAL from a judgment of the Commissioner of Requests,Ratnapura.
G. P. J. Kurukulasuriya (with him U. A. Jay asunder e), for plaintiff,appellant.
N. N adarajah (with him E. B. Wikremanayake), for defendant,respondent.
Cur. adv. vult.
November 4, 1941. Nihill J.—
This is an appeal and a cross-appeal from the Court of Requests,Ratnapura. There is no contest on the facts, which are as follows : —By Settlement Order 25 (Ratnapura), which was published in the CeylonGovernment Gazette No. 7,498 of October 14, 1932, “ (P 1) land known aslot No. 77c. was settled upon the plaintiff-appellant without any encum-brances. The total extent of this lot is about 5 acres and 13perches. Of this lot the defendant-respondent had been in possessionof a strip, 1 rood and 13 perches in extent, on the east which abutted thewestern boundary of land purchased by him in 1926 from the villagers.He had enclosed this strip with his other land and had planted rubber.That was the position when the plaintiff entered into an agreement withthe Crown in 1928 under the provisions of section 4 of the Waste LandsOrdinance (Ordinance No. 1 of 1897). The defendant remained -inpossession of this strip and this action was brought for ejectment anddamages. The defence to the action was that the defendant had acquireda title to the strip by prescription and that in any event he was entitledto compensation for improvements. The learned Commissioner decidedagainst the defendant on the issue of prescription on the ground that thestrip in question was regarded as the property of the Crown until the dateof the Settlement Order in 1932, and that prescription against the plaintiffcould only run from that date. He found also that the Settlement Orderwas conclusive as regards title in the plaintiff’s favour and he awardedhim damages for being kept out of possession for the two years prior tothe institution of the action. He found that the defendant’s possessionhad been bona fide and awarded him Rs. 56 as compensation for “hisplanting trouble”. The plaintiff-appellant has now appealed againstthat part of the order of the Commissioner which relates to the paymentof compensation^ and the defendant-respondent in his cross-appeal haschallenged the correctness of the order on the issue of prescription andasserts that he is entitled to a recovery of the land inasmuch as there waswilful suppression by the plaintiff-appellant at the settlement inquiryof the fact that the defendant-respondent was in possession and alonehad improved that portion of the land. He claims also that the amountof compensation awarded to him was inadequate and that he should atleast have been allowed a jus retentionis over the land until payment ofcompensation.
The first point for consideration is the legal effect of the SettlementOrder. Does it or does it not confer an unencumbered title on theplaintiff-appellant? To examine this it will be necessary to study theinter-relationship between Ordinance No. 1 of 1897 and the Land Settle-ment Ordinance (Cap. 319), which came into force on October 23, 1931.
NIHTT.T. J.—Hethuhamy v. Boteju.
This Ordinance repealed Ordinance No. 1 of 1897, i.e., the Waste LandsOrdinance ; but section 2 of Ordinance No. 22 of 1932 (now incorporatedin section 3 (3) of Cap. 319) preserved proceedings begun, but not com-pleted under the repealed Ordinance; it was this provision coupled withsection 32 of Cap. 319 which allowed the proceedings in the presentinstance to continue and to terminate in the Settlement Order of October14, 1932. That order purported to be made under section 32 (1) ofCap. 319 and sub-section (2) of that section gave the order the same forceas an order made in consequence of proceedings taken under the LandSettlement Ordinance. Thus in determining the effect of the SettlementOrder of October 14, 1932, one must look not at the provisions of theWaste Lands Ordinance but to those of the Land Settlement Ordinance.Now section 8 of this Ordinance lays down that every Settlement Orderpublished in the Ceylon Government Gazette shall be judicially noticed andshall be conclusive proof, so far as the Crown or any person is therebydeclared to be entitled to any land or to any share of or interest in anyland, that the Crown or such person is entitled to such land or to suchshare of or interest in any land free of all encumbrances whatsoever otherthan those specified in such order …. and that subject to anyencumbrances so specified such land share or interest vests absolutely inthe Crown or in such person to the exclusion of all unspecified interestsof whatsoever nature—two provisions are added to the section, the firstpreserves the right of any person prejudiced by fraud or the wilfulsuppression of facts of any claimant to proceed against such person eitherfor the recovery of damages or for the recovery of the land awarded tosuch claimant, the second preserves the rights of fidei commissarii.
It will be necessary to consider the first of these provisos later. Now,the intention of this section seems to be clear; it excludes the unspecifiedinterest and seeks to achieve finality. It only does so, however, so faras the Crown or any person is thereby declared to be entitled to any landor to any share of or interest in any land ”, that is to say, “ declared ”by the terms of the Settlement Order. The word “ thereby ” must meanthat. Mr. Nadarajah for the defendant-respondent has sought to makethe point that the Settlement Order of October 14, 1932, is not a decla-ratory order, that nowhere in the body of the order do words appear which“ declared title ” on the persons mentioned in the Schedule to theorder.
This is literally true but the acceptance of his submission that accord-ingly the Settlement Order is outside the provisions of section 8 andsettles nothing would reduce the proceedings taken tinder the twoOrdinances to absurdity. Furthermore, the Settlement Order of October14, 1932, was in terms of Form 2 as set out in the First Schedule to theLand Settlement Ordinance, varied only as was necessary on account ofthe proceedings having been started under the Waste Lands Ordinance.The Settlement Officer thus complied with section 32 (1) which sanctionsthe use of this Form subject to such amendments as may be necessaryand states that an order so made shall be valid and effectual for allpurposes. It is true also that in a case where ‘there has been no claimantto land the subject of a Settlement Notice Form 1 in the First Scheduleis framed in a specific declaratory sense. It might be thought that the
NIHILL J.—Hethuhamy v. Boteju.
draftsman would have been more happily inspired had something similarbeen introduced into the wording of Form 2 as well. But that a Settle-ment Order drawn up according to Form 2 is meant to be and can be/implied to be a "declaration. I have no doubt, as I think a study of thewording used in section 5 of the Ordinance will show. This section, interalia, provides that a Settlement Officer may enter into an agreement witha claimant whereby a claimant or any other person shall be declared bySettlement Order under sub-section (5) of the section to be entitled eitherwholly or in part to any land specified in the Settlement Notice (sub-section (4) (c) ) and sub-section (5) says that the Settlement Officer shallembody any such settlement in a Settlement Order which shall besubstantially as set out in Form No. 2 in the First Schedule. That seemsto me to make it reasonably certain that the Legislature meant Form No. 2to be declaratory for proceedings initiated under the Land SettlementOrdinance. If that be so, then, under sub-section (2) of section 32 a Settle-ment Order made under the terms of sub-section (1) of this section applliedto proceedings begun under the provisions of the Waste Lands Ordinancebut not completed before its repeal must have similar effect.
The next point taken by Counsel for the defendant-respondent isthat the alleged agreement between the plaintiff-appellant and theSettlement Officer in 1928 was not in fact an agreement but an admissionof a claim and that herefore the principle of the decision in Gunasekera v.Silva and another1 should apply. The text of the agreement was not filedas a document in the case, but the plaintiff in evidence which wasunchallenged stated that he paid Government Rs. 16 per acre for the landwhich the Settlement Officer agreed to settle on him. That indicatesthat the Settlement Officer was dealing with the land as Crown land andnot as land to which the plaintiff had made out a clear title of ownership.In fact on that evidence I regard this case as even stronger than the onedealt with in Kiri Menika v. Appuhamy ’.
In that case a Court of two Judges held that an order published in theCeylon Government Gazette under the Waste Lands Ordinance following anagreement was conclusive against a co-owner who had not claimed beforethe settlement. In this case the plaintiff-appellant did not claim as onewith an undivided share but as sole owner. ' The wording of section 8 ofthe new Ordinance with its greater details has if anything strengthenedthe position which the Judges in the Kiri Menika Case (supra) found strongenough when interpreting the wording of the old Ordinance.
If then, as I hold it to be, the effect of the Settlement Order publishedon October 14, 1932, was to give the plaintiff-appellant an unencumberedtitle on that date it must follow that the defendant-respondent fails onthe issue of prescription. It has been urged upon me that in any eventprescription should run from the date of the agreement, viz., 1928, butthat would only be if it was the agreement and not the published orderthat passed the title.
Under section 8 it is the Settlement Order “ so published ”, that is inthe Ceylon Government Gazette, that shall be judicially noted as conclusive
' 4 C. W. R. 226.: 10 *v- L- 2<w-
NIHlLi. J.—Hethuhamy v. Boteju.
proof of title. Can it be said that title passes from the Crown at the dateof the agreement although it is the published Settlement Order whichultimately provides the title holder with conclusive proof of his title?
I do not think that the wording of sub-section (4) (c) of section 5 of theLand Settlement Ordinance supports such a view. The essence of theagreement is the undertaking by the Crown to settle land subsequentlyon the claimant by the procedure provided for by sub-section (5). In thecase before me there was a wide gap between the agreement made in 1928and the publication of the Settlement Order in 1932. This, however,should have been of advantage to the defendant-respondent for had hebeen alive to his interests instead of sleeping over them he would have hadample time to pursue the remedies open to him by other provisions of theOrdinance.
After the publication of the Settlement Order he had a year undersection 24 to put forward his interest in this land. Even now when theeleventh hour has passed section 26 with its apparently timeless right of.approaching the Executive Committee of Agriculture and Lands with arequest for compensation means that the door if shut, is not finally boltedagainst him.
There remains to be considered the first proviso to section 8 of the LandSettlement Ordinance. This runs as follows : —
“ Provided that nothing in this section contained shall affect the rightof any person prejudiced by fraud or the wilful suppression of facts ofany claimant under the notice from proceeding against such claimanteither for the recovery of damages or for the recovery of the landawarded to such claimant by the order.1
It is now contended ^before me that the evidence of the plaintiff in thelower Court discloses that he knew that the defendant-respondent was inpossession of the strip at the time he made his claim before the SettlementOfficer and that he had enclosed it and planted rubber trees thereon. Itwas not asserted in the lower Court that the plaintiff had suppressed somematerial fact in his negotiations with the Settlement Officer. The provisoto section 8 does not seem to have been in anyone’s mind when the issueswere framed. There is thus no evidence before me on which I can judgewhether there was fraud or a wilful suppression of fact by the plaintiffbefore the Settlement Officer.
Mr. Nadarajah has contended that even if everything be fie Id againsthim there should be a new trial at least on this issue. I carnet subscribeto that view. The defendant-respondent has all along been ^negligent ofhis interest and at would not be fair to allow him another opportunity tofight the plaintiff on ground which he might well have selected for himselfat the trial of this action, if he had evidence in support.
It did, however, emerge clearly from the plaintiff’s evidence that he wascontent in the years 1926 to 1928 to regard the defendant as being inlawful possession of the strip since when some of the defendant’s treesaccidentally burnt down in a chena fire started by the plaintiff he plantedthe present trees for the defendant as compensation. On this evidence- the learned Commissioner found that the defendant was, to the plaintiff’s
NIHILL. J.—Heihuhamy -o. Boteju.
knowledge, a bona fide possessor of the land at the time of his first plantingand that it was apparently because of this that he awarded the defendantcompensation for his planting trouble.
The plaintiff-appellant has submitted in his appeal that the words “ tothe exclusion of all unspecified interests of whatsoever nature ” are so all-embracing as to take away from the defendant-respondent any right tocompensation which he might otherwise as a bona fide possessor have had.In my view, however, those words relate only to unspecified interests inthe title and cannot take away a right to compensation, where it exists inthe possessor on ouster by the true owner.
I hold, therefore, that the learned Commissioner was right on his findingof fact, which the evidence supported, to award the defendant-respondentcompensation for his trees. The plaintiff’s appeal on this point, therefore,fails. There remains, however, still one further matter for consideration.If the defendant-respondent is entitled to compensation for his improve-ments to this chena land has the learned Commissioner applied a correctassessment in awarding a sum of Rs. 2 per tree? Mr. Nadarajah hasmaintained that in view of the fact that his client was in undisturbedpossession of this strip for over five years the true measures of compensa-tion is that set out in section 9 of the Definition of Boundaries Ordinance(Cap. 315). The defendant bought his land to the east of the land indispute in October, 1926, and he fenced what he thought to be the correctwestern boundary. It is admitted that he did plant and improve whatsubsequently turned out to be an encroachment and he remained inpossession of the encroached strip for over five years. I
I think, therefore, there is substance in Mr. Nadaraja’s submission andthat with regard to this matter of compensation there must be furtherinquiry.
The result, therefore, of my judgment is tfiat both this appeal and cross-appeal are dismissed except on the point taken by the defendant-respondent as to the adequacy of the compensation. In all other respectsI uphold the judgment of the learned Commissioner. On the issue ofcompensation.I remit the case back to the Commissioner for evidence tobe taken to enable him to fix compensation on the basis set out in the firstparagraph of section 9 of the Definition of Boundaries Ordinance(Cap. 315).
As regards the costs of this appeal and cross-appeal, although theplaintiff has failed in his appeal he has succeeded in defeating therespondent’s cross-appeal on the main issue with regard to title.
I think, therefore, that the fairest order I can make is to direct that thedefendant-respondent should pay two-thirds of the costs and the plaintiff-appellant the remaining one-third; costs of the action in the lower Courtto remain as ordered by the Commissioner.
HETHUHAMY v. BOTEJU