SANSONI, J.—Vander Poorten v. Government Agent, Sabaragamutva Province 433
1958 Present: Sansoni, J., and H. N. G. Fernando, J.J. VANDER POORTEN et al., Appellants, and GOVERNMENT AGENT,SABARAGAMUWA PROVINCE, Respondent
S. G. 631—D. G. Batnapura, 6940JL
Ghcna land—Land Settlement Ordinance of 1931—Order made under sections 3 and 32—Declaration of property as belonging to Crown—Claim under section 20 ofOrdinance No. 1 of 1397—Presumption arising from section 6 of OrdinanceNo. 12 of 1840 and section 24 of Ordinance No. 1 of 1897—Materiality of.time of encroachment—Improvements made on, Chena land—Can compensationbe claimed ?—Ordinance No. 1 of 1897, ss. 3, 5, 20, 21—-Appeal under section18 of Ordinance No. 1 of 1897—Failure to lodge affidavit' along 'with petitionof appeal—-Fatal irregularity.
The presumption created by seotion 6 of Ordinanoe Ho. 12 of 1840 that allchenas in the Kandyan provinces shall be downed to belong to the, Crownand not to be the property of any private person claiming the same against theCrown except upon proof by such person of a Saunas or of payment of customarytaxes has reference to the condition of the landneither at the time of the Ordi-nance, nor at the date of any action regarding the title, bat at the time when anencroachment was made on the land. Obiter; The presumption created bysection 24 (a) of Ordinanoe Ho. 1 of 1897 is equally strong though the seotionis worded differently.
Ordinanoe Ho. 1 of 1897 does not enable a claim to compensation to bo madeby any person, or to be granted by the Court, in respect of improvemenis.
An appeal based on section 18 of Ordinanoe Ho. 1 of 1897 will be rejected if the .appellant fails to lodge an affidavit together with the petition of appeal.
xXPPEAL from a judgment of the District Court, Ratnapura. .
G. Weerammtry, with N. B. M. Daluwatte and K. L. de Silva, forthe Plaintiffs-Appellants.
E. B. de Fonseka, Crown Counsel, for the Defendant-Respondent.
1Cur. adv. wit.
.November 14,1958. Sansoni, J.—
i' l By an order dated 11th March 1940 published in the Government Gazetteof 5th April 1940 an Assistant Settlement Officer acting under potions 3and 32 of the Land Settlement Ordinance of 1931 ordered that certainallotments of land should be settled as specified in the Schedule to theorder. The land in dispute in this action was among those declaredthe property of the Crown. The plaintiffs, as the executors of one A. J.Vander Poorten, filed a petition in the District Court on 5th December1940 praying that the Court should investigate the claim which hadbeen made by A. 3. Vander Poorten to that land, which they calledWelamatialla Estate situated in the village Embuldeniya, and order theCrown to transfer it to them. They also asked for their costs and for19—lx
J. N. U 2606—1,698 (6/59},
434 SANSONI, J.—Vander Poorten v. Government Agent, Sabaragamuwa Province
such other and further relief as to the Court shall seem meet. Thispetition has been treated by this Court on an earlier appeal1 as a claimmade under section 20, Ordinance No. 1 of 1897, and I shall so regardit.
The plaintiffs claimed that the land formed part of a larger extent ofland called Embuldeniya Nindagama, situated at Pohorabawa (excludingthe garden and paddy fields) and containing in extent 500 ammunams ofpaddy sowing, of which Vander Poorten became the owner by right ofpurchase on deed Pll of 19th March 1928 and another deed of 13thSeptember 1929. It is not necessary to consider the latter deed anyfurther, since the claim of the plaintiffs made under that deed was aban-doned in the lower Court. By deed Pll J. H. Meedeniya Adigar pur-ported to transfer the entire Nindagama to Vander Poorten, recitingtitle under deed P21 of 20th July 1927. There are certain unsatis-factory features about these deeds which need to be mentioned. DeedP21, which is a transfer by one Siriwardene to Meedeniya, is in respectof only an undivided 1 /3 share of the Nindagama, and describes it assituated in the village of Gilimale. Further, the vendor on deed P21does not recite his title in that deed. The District Judge has also pointedout that Meedeniya, when giving evidence at the inquiry in 1931, statedthat Siriwardene had bought this land from 4 persons upon deed No. 12798of 1st September 1926. That deed has not been produced in theseproceedings, and it is therefore not possible to say whether Siriwardenehad title by purchase at all. The District Judge has also pointed outanother serious flaw in the title, in that deed No. 12798 is recited in deedP21 as the source of Siriwardene’s title to another land called Kudadum-gama Nindagama situated in Kudadurugama, and not to EmbuldeniyaNindagama. It is not surprising then that deed No. 12798 was not pro-duced before the Court. The earliest document produced with regardto Embuldeniya Nindagama is an extract from the Register kept underthe Service Tenures Ordinance, 1870 (P38). Seven panguwas in the villageof Embuldeniya have.been registered and are described there as gardens,and M. J. Kiribandara and J. Lokuhamy are registered as the proprietors.The extent of each garden in less than a pela. These two persons, or ratherKiribandara alone, are now claimed as the source of Vander Poorten’stitle to the extent of 500 ammunams which he purported to buyon PI 1. In view of these matters it seems to me that there is no founda-tion whatever for the claim that title to 500 ammunams passed to VanderPoorten.
There is another equally good answer to the plaintiffs’ claim of titlewhich the Crown put forward, and that is the presumption arising fromsection 6 of Ordinance No. 12 of 1840 and Section 24 of OrdinanceNo. 1 of 1897. There can be no doubt that the Crown is entitled to relyin these proceedings on this presumption, as was done in the case ofHameed v. The Special Officer appointed under the Waste Lands Ordinance 2.It was also held by the Full Bench in Mudalihamy v. Kirihamy 3 that
1 (1947) 48 N. L, B. 361.s (1921) 23 N. L. B. 150.
(1922) 24 N. L. B: 1.
SANSONI, J.—Vander Poorten v. Government Agent, Saharagamuwa Province 438
section 6 of the Ordinance No. 12 of 1840 was intended to declare ordefine the general law, and to lay down once for all what kind of landsshall be considered the property of the Crown ; it is declaratory of therights of the Crown, which are to be presumed upon the proof of certainfacts. Under Section 6 all chenas in the Kandyan provinces shall bedeemed to belong to the Crown and not to be the property of any privateperson claiming the same against the Crown except upon proof by suchperson of a Sannas or of payment of customary taxes. The questionwhich the Full Bench in Mudalihamy v. Kirihamy 3 had to decide wasthe time at which the presumption in favour of the Crown arose, and thejudges held that the presumption has reference to the condition of theland neither at the date of the Ordinance, nor at the date of any actionregarding the title, but at the time when an encroachment was madeon the land. To say that the presumption does not apply where theland has been already cleared, cultivated, planted and otherwise improvedwas, in the opinion of Bertram C. J.,“ to say that it can only apply whenthe trespasser is caught flagrante, delicto and before he has done anythingin pursuance of his entry upon the land. But this does not happen.In all countries it is the essence of the position of the squatter that heshould for some time have escaped notice
The presumption created by section 24 (a) of Ordinance No. 1 of 1897is equally strong though the section is worded differently. The Crown isentitled to rely upon the provisions of both sections. Having regard tothe purpose and the provisions of Ordinance No. 1 of 1897, which dealsin section 24 with lands of almost the same nature as those referred to inOrdinance No. 12 of 1840, it seems to me that even in proceedings underthe former Ordinance the condition of the land has to be considered,and the presumption should be applied, as at the time-of encroachment.
It seems tp me unreasonable to apply the presumption created by thetwo sections in two different ways, since the subject matter of the pre-sumption is the same. With great respect, I am unable to agree with thedictum of Bertram C. J. that the material time in proceedings underOrdinance No. 1 of 1897 is the da te of the issue of the notice under section 1.
Of course this question arises only incidentally, since I have alreadyheld that the presumption under section 6, Ordinance No. 12 of 1840, canbe relied upon by the Crown in these proceedings.
Now it is quite clear, and the'plaintiffs’ counsel at the appeal did notdispute it, that the land claimed by the plaintiffs was chena until theearly part of 1928; being chena in the Kandyan provinces it mustnecessarily be held to be the property of the Crown, since no attempt hasbeen made to prove either a sannas or the payment of customary taxes.When the land was surveyed in 1927 along with other lands in that areaby Government Surveyors for the purpose of Ordinance No. 1 of 1897, itwas chena. But it is argued, and the only support for that argumentis the obiter dictum of Bertram G.J. to which I have referred, that at thetime the settlement notice was published in the Government Gazette of 21stSeptember 1928, a. part of ihe land had been planted in tea and the
436 SANSONI, J.—Vander Poorten v. Government Agent, Sabaragamwwa Province
presumption would not apply. In the view I take of the relevant dateit does not matter when the land was planted, but I shall refer to thesalient facts shortly.
The most that can he urged by the plaintiffs as to the time the plantingbegan was that it began, a few months before the publication of the settle-ment notice, and it is most unlikely that it would have begun before19th March 1928 when Vander Poorten purported to purchase the landfrom Meedeniya on deed PI 1. The evidence led by the petitioners on thispart of their case is not satisfactory. They called a witness Sayakkarawho produced the ledger P13 for the period January 1928 to December1929 and pointed to the accounts for Embuldeniya Estate. He thenstated that, according to page 286, from December 1928 to April 1929money had been spent on planting the estate. Under cross-examinationhe again stated that Vander Poorten started planting in about December1928 after he got the transfer Pll. This witness was the chief clerkunder Vander Poorten and purported to speak from the knowledge hehad gained while he was in Vander Poorten’s service from 1920. At amuch later date he was recalled by the plaintiffs and he then stated thatVander Poorten first began spending money on planting tea in February1928, and that up to December 1929 he had spent Rs. 11,414/74. Nowthe details of the amounts spent do not appear in the ledger P13; theywould apparently have appeared in monthly statements sent to him bythe Superintendent of the estate. But those monthly statements for therelevant period have not been produced. The witness said that thestatements relating to the period prior to 1932 have been misplaced byhim. It seems to me, therefore, that it would be unsafe to act on hisevidence as to when the planting really began, particularly as anotherwitness Sumathjpala called by the plaintiffs said that as far as he couldremember the land was planted in 1929.
The last point which I wish to deal with on the question of title is theobjection taken by the Crown under section 4 of the Waste Lands Ordi-nance No. 8 of 1927. Section 2 defines the “ appointed day ” as the 10thof August 1927. Under section 4 any alienation of unsettled land madeafter the appointed day is invalid unless it was made with the writtenconsent of the Government Agent. No such consent has been obtainedin respect of deed Pll which was executed on 19th March 1928. Theplaintfifs have sought to claim exemption from this prohibition againstalienation under section 2 (/), which excludes from the definition of “alie-nation” a disposition giving effect to a notan'ally executed agreementmade before the appointed day. The agreement they rely on is deedP44 of 8th August 1927 executed between Vander Poorten, Meedeniyaand one Ghelliah. It is an agreement by which certain lands referred toin the deed as having been purchased by Meedeniya are admitted to hethe properly of Vander Poorten, and Vander Poorten agrees to advancefurther sums of money in order that Meedeniya and Ghelliah may acquirefurther lands for him. The land in dispute was already in the name ofMeedeniya who purported to acquire 1 /3 share of it, P21 of 20th July 1927,
SANSONI, J.—Vander Poorten v. Government Agent, Sabaragamuwa Province 43 7
yet it is not mentioned in any of the Schedules to P44. It is thereforenot possible to hold that the transfer Pll gave effect to the agreementP44.
I have dealt at length with the question of title and I fear I have ratherlaboured the point that the plaintiffs have no title to the land in dispute,inasmuch as counsel for the plaintiffs virtually conceded before us thatthe plaintiffs had no title to the land in view of the various defects of titlewhich I have pointed out. The relief he really pressed for was the daimto compensation for the improvements effected to the land by VanderPoorten who planted it in tea. The District Judge has considered thisclaim and rejected it, both because it was not made in the petition, andeven if equitable considerations could be taken into account by the Court,because the plaintiffs have been amply repaid by the profit derived fromthe tea plantation. It would certainly seem that the plaintiffs in theirpetition only claimed a transfer of the land to them by the Crown and no-claim for compensation was made in the petition. The claim to compensa-tion however, fails in any event,because I do not think that Ordinance No. 1of 1897 enables such a claim to be made by any person or to be granted!by the Court. The Ordinance, as its preamble shows, was enacted in orderto make special provision for the speedy adjudication of claims to forest,chena, waste and unoccupied lands. By section 3 a claim made shouldbe one to a land specified in the notice published under section 1 or toany interest in it. A claim to compensation is neither. It may be thatthe Government Agent or Assistant Government Agent after inquiry isempowered by administrative regulations to settle a claim for compensa-tion if one is made by a claimant, but once the matter comes before the-Court under section 5 or section 20 the District Judge has no jurisdictionto grant compensation for improvements nor has this Court, The only-order the Court can make is that the claim to the land or any interest in ithas been established or not. Section 21 puts the matter beyond doubt.Under that section, if the claim is established the Judge must order thatthe claimant be placed in possession of the land, unless the land has beensold. In the latter event the claimant will not be awarded possession ofthe land, but he will receive instead by way of compensation a sumequal to the price at which the land was sold. In Hamine Etena v. TheAssistant Government Agent, Puttalam1 this Court held that where theplaintiff has failed to establish a legal claim the Court cannot grant,relief on equitable grounds. Such relief can only be obtained byappealing to authorities other than the Courts.
The District Judge dismissed the claim of the plaintiffs, and when thisappeal from the order came before us a preliminary objection was raisedto the hearing of this appeal, based on Section 18 of the Ordinance.Logically that objection should have been dealt with at the commencementof this judgment, and if held to be a good one the appeal should havebeen rejected without further consideration. But in view of the historyof this litigation which commenced in December 1940 we felt that allmatters arising on the appeal should be dealt with, whatever ordermight be made on the preliminary objection.
1 (1922) 23 N. L. B, 289.
2*J. N. R. 2606 (6/59).
438 SANSONI, J.— Vander Poorten v. Government Agent, Sabaragamuwa Province
Under section 18 a party who is dissatisfied with the decision of theDistrict Judge may appeal to the Supreme Court by lodging within 30days from the date of such decision a petition of appeal together with anaffidavit setting out the value of the land with regard to which the deci-sion has been given against him. Stamp duty is chargeable upon everysuch petition of appeal and upon every such affidavit at the rates specifiedin part 2 of the Schedule B to the Stamp Ordinance, 1890 ; and everysuch appeal shall be dealt with and disposed of in the same manner andsubject to the same rules as appeals from the District Courts.
It is conceded that no affidavit was lodged together with the petition ofappeal or at any time since. Thus there has been an omission on thepart of the appellants to comply with the terms of the section, bothin their failure to lodge an affidavit together with the petition, and theirfailure to supply the necessary stamps for the affidavit either then orsubsequently.
A similar objection was raised when this case came up in appeal from aprevious order of the District Judge and it was overruled *. There toothe appellants had failed to lodge an affidavit and Keuneman A.C. J.said: “ This objection has been raised at a very late stage, and I do notthink there is substance in it. There was already in the record at thetime an affidavit setting out the value of the land which was filed with theearlier papers, and I do not think we should accept this particular objec-tion as valid. ” With all respect to the learned Judge, I do not thinkthe failure to comply with the decision of the Stamp Ordinance can beoverlooked in that way. It would also appear that an affidavit as tovalue is required at the time an appeal is lodged so that the necessarystamp duty for the petition of appeal and affidavit may be ascertained,since stamp duty is not leviable on any documents filed prior to the stageof appeal. If no affidavit is filed, then there is no means of verifying thestamp duty chargeable on either document. An affidavit filed at thecommencement of the proceedings, in order to comply with a requirementof the Land Settlement Ordinance of 1931, is in no sense an affidavitlodged together with the petition of appeal as required by section 18 ofOrdinance No. 1 of 1897.
There are numerous decisions of this Court which have laid down thatwhere an appellant fails to deliver together with the petition of appealstamps which he is required so to deliver, the appeal must be rejected.In A ttorney- General v. Karunaratne * a Bench of three Judges held thatthey were bound by a decision of a Full Bench to that effect, and thatstamps tendered one day after the filing of the petition of appeal weretendered too late. The words “ together with ” were there construed tomean “ at the same time as ”. The position is much worse, of course,where the appellants, as in this case, have not tendered the affidavit or thestamps for the affidavit at all.
Another reason why it seems to me that the appeal should be rejectedis that a right of appeal from the decision of the District Court is a rightthat would not have been available if it had not been expressly conferred1 (1947) 48 N. L. R. 361.! (1935) 37 A*. L. R. 57.
PTJLLE, J.—Dias v. Eastern Hardware Stores, Ltd.
by the Ordinance, since the Court was exercising a special jurisdiction.The exercise of this right must be strictly in accordance with the terms ofsection 18 which conferred that right.
Following these decisions, I consider that the preliminary objection issound and the appeal should be rejected. I would dismiss the appealwith costs in both Courts.
ZST. G. Fernando, J.—I agree.
J. VANDER POORTEN et al., Appellants, and GOVERNMENT AGENT, SAMARAGAMUWA PROVI