Present : Shaw J.
0BE7ESEEEBA v. BANDA.939—P. G, Matale, 9,937.
Forest Ordinance—Clearing withoutpermit land atthedisposal ofthe
Crown—Bona fide claim of right—Ordinance No, 19 of 1840, 8. 6,
Accused was charged withhaving clearedandbrokennpthe
soil of a piece of chena land which was at the disposal of the Grownin the Kandyan Province without a permit. He pleaded in defencethat he was acting under abona fide claimofright.Hehad
no saunas or grant, nor did he prove payment of the customarytaxes and dues. But he had a notarial deed.
Held, that as, under thecircumstances, the “right"wasone
which could not exist in law under section 6 of Ordinance No. 12 of1840, the accused could not be said to have acted under a bonafide claim of right.
*' Before a person can be said to have a bona fide belief that theproperty is Ins, it must be a belief of the existence of a right whichcould exist by law. ”
TThE facts are set out in the judgment.
No appearance for the appellant.
Garvin, S.-G. (with him V, M, Fernando, C, G.), for the Crown.November 19, 1918. Shaw J.—
In this case the accused has been convicted of having cleared andbroken up the soil of certain land, which was land at the disposal ofthe Crown in the Kandyan Province, without a permit from theproper authorities. The Magistrate has convicted the accused,and has sentenced him to payment of a fine. The accused hasappealed:, but no counsel has appeared to argue the appeal on bis
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4.018*behalf. It appears that the appeal is chiefly based on the ground
gHAWthat the accused in doing what he did was acting under a bona fide
-—claim of right. It appears that he claimed this land under an
ordinary notarial deed dated 1893. The land, however, has beenproved to be chena land in the Kandyan Province, which falls undersection 6 of Ordinance No. 12 of 1840. That section provides thatall such land shall be deemed to belong to the Crown, except uponproof only by a person claiming under sannas, or grant for the same,together with satisfactory evidence as to the limit and boundaries,or of payment of taxes, dues, and services having been renderedwithin twenty years for the same, as have been rendered within suchperiod for similar lands being the property of private proprietors ofthe same district. In the present case there is no attempt to showany saunas or grant or payment of the customary taxes and dues.The claim set up is under an ordinary notarial deed. The rightwhich he is alleged to claim is not such a right as under section 6of the Ordinance exists in law, and, in my view, before a personcan be,said to have a bona fide belief that the property is his, it mustbe a belief of the existence of a right which could exist by law.The case referred to P. C. Matale, No. 5,111, was a ease in which theaccused claimed under a talipot from the Kandyan Government.If they believe that document to be genuine, they would have abona fide claim of right, .which could exist in law under section 6 ofOrdinance No. 12 of 1840. That appears to distinguish that casefrom the present.
I think the decision of the Magistrate is correct, and dismiss theappeal.
OBEYESEKERA v. BANDA