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JAYAWARDENA v. WIJEYESINHA et al.
ATTORNEY-GENERAL, added Party Defendant.
D. C., ChUaw, 788.
Procedure—Partition suit—Admission of the Crown into the case as anadded defendant—Denied by Attorney-General on behalf of theCrown of plaintiffs and defendant's tide—Who to begin.
Where in a partition case the plaintiff and defendant derived titlefrom a common ancestor, and the Crown appeared and was allowedto file answer as an added defendant denying the title of suchancestor to the whole of the land, and itself claiming title to agreat portion of the land, the proper procedure is for the plaintiffto begin his case.
HIS case was instituted in January, 1894, by plaintiff against
several defendants, who were alleged to be part owners ofa certain tract of land, for partition of the same among them.
Answers were filed by many of the defendants, and the trialwas fixed for 8th October, 1897 ; but notice of trial not having beenserved on all the defendants, the case was postponed for 10thFebruary, 1898, and thereafter for several other dates. In themeanwhile, on the 26th May, 1898, Mr. Proctor Koertz, appearingfor the Attorney-General, moved that “ as the Crown has an“ interest in a portion of the land which forms the subject-matter“ of partition, the name of the Attorney-General of Ceylon be“ entered as an added party, and the trial of the case fixed for 3rd“ June next."' The motion being allowed, the Attorney-General’sanswer as an added defendant was admitted and filed.
His answer took exception to the plaint, in that it did not dis-close how Tamby Mudaliyar, named in the plaint as the originalowner of the land sought to be partitioned, became the owner,whether by saunas, grant, or otherwise. On the merits, ’ theAttorney-General denied that the said Tamby Mudaliyar was theowner of the said entire land, or that heirs or descendants repre-sented by the defendants were entitled to the same. For a furtheranswer, the Attorney-General pleaded that within the boundariesset out in the plaint as containing 730 acres there were severalallotments of land aggregating 442 acres which belonged to theCrown. And the Attorney-General prayed that in the event of apartition being decreed, the several allotments named by him asaggregating 442 acres be excluded, and the same, be declared theproperty of the Crown.
On the trial day the issue agreed upon was: Whether the lotsmentioned by the Attorney-General are the property of the plaintiffsand defendants, or the property of the Crown.
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1899. The District Judge called upon the Crown to begin, holding theOctober 9. burden of proof as to its claim to be upon it. The counsel forthe Attorney-General declined to call evidence, on the groundthat the nature of the land in dispute raised a presumption in favourof the Crown that the land belonged to it, and that plaintiff,having admitted that the original owner, Tamby Mudaliyar, hadacquired the land under a grant from the Crown, did not pro-duce the grant itself, or lead any evidence in support of his title.
The District Judge dimissed the claim of the Attorney-General,as he declined to begin and call evidence.
The Attorney-General appealed.
Ramanathan, S.-Q., for appellant.
Dornhorst (with him Jayawardena), for respondents.
Cur. adv. wit.
9th October, 1899. Lawrie, A.C.J.—
Our decision on this point of practice and procedure shoulddepend on what we think is best for the numerous parties to theaction, what order will enable to try the issues with the least delayand the best results.
In the ordinary case the plaintiff should begin. He has put theCourt in motion. He must make out a primd facie case that thereis a land to be divided which he owns in common with others.
Here the Crown has given notice that a considerable part of theland described in the plaint is land at the disposal of the Crown.I cannot say that I think that the learned District Judge waswrong when he called on the Attorney-General to lead evidence.But the Attorney-General did not avail himself of his right tobegin. I am of the opinion that that right having been waived,the plaintiff must open his case.
I cannot affirm the order dismissing the claim of the Crown.In the first place it is an ambiguous order, and the order of a Courtshould be clear and unambiguous. It may mean that the onuslay on the Attorney-General for the Crown, and because hedid not lead evidence, the issue whether the land be the propertyof the Crown is finally answered in the negative.
If that be the meaning which the District Judge puts on hisorder, it would have been well to have made it clear.
But I do not read the appearance of the Attorney-General in thecase and his answer as more than a notice that the Crown assertstitle to a part of the land. If that land be now lying waste oruncultivated, nor possessed by any of the parties to this partitionsuit; if it be virtually in the possession of the Government this
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can hardly be called a claim, it is a notice warning the parties notrashly to assume that they can deal with all the land as their own.
So I think the appearance of the Attorney-General in the causewas a fair notice to the parties, and that the plaintiff’s and defend-ants having been put on their guard, it now lies on the plaintiffto proceed to prove his title in common form.
I incline to the view that the Crown can appear in every caseto watch its interest (which are the interests of the public), andhere I see no objection to the counsel for the Crown cross-examin-ing the plaintiffs and the defendants and the witnesses. It maybe a question whether, having declined to lead evidence when theopportunity was given to him, the Attorney-General can beforethe close of the case be allowed to lead evidence to prove theCrown’s right. I do not at present see any reason why he shouldnot.
The result to which I come is, that while the Crown had rightto appear and to prove that part of the land must be excluded fromthe partition before the title of the parties to the remainderwas entered on, still that it is convenient for all that the ordinaryprocedure should be followed, and that the plaintiff should firstbe called on to make out his case.
It would be unfortunate for all parties were the Crown forcedto leave the case, for except in an action to which the Crown wasa party, the partition of this land would be fruitless.
I would set aside the order dismissing the claim of the Crown,and I would remit for trial in the usual way.
Browne, A.J.—I agree.