( 226 )•
July 26 <b 20.
BAM MENIKA v. APPUHAMY.
D. G., Kandy, 12,343.
Evidence of prescriptive possession—Ordinance No. 12 of 1840,. s. 6—Evidence
to rebut presumption in favour of Crown—Possession for a third of
a century—In what class of cases such presumption arises.
The land in dispute between the partieswas situated in adistrict
formerly within the Kandyan territory. In an -action, brought by plaintiffagainst the defendant, who was a purchaser under the Crown, plaintiffled evidence to show that the land was an appurtenance to a field whichshe inherited from her ancestors.Thoughthe landappearedto be
a' chena, and presumably the property of the Crown, under section 6 ofthe Ordinance No. 12 of 1840,—
Held, that the District Judge rightly allowed plaintiff as part of hiscase to lead evidence of title by prescriptive possession, and that defend-ant's counsel ought not to have refused to cross-examine the witness,who deposed to such possession.
Held, further, that, upon the defendant producing the Crown grant inhis name, plaintiff had the right to rebut the presumption in favour ofthe Crown.
Lawrir, A.O.J.—Possession ofland indistrictsformerlywithin
Kandyan Provinces for one-third ofa century gives anabsolutetitle to
The presumption in. favour of the Crown as to forests, waste anduncultivated and unoccupied land and chenas applies to a land of a sizeand position sufficient to be regarded as a separate subject. A landownermay leave part of his land uncultivated; he may have trees round hisfield, on the banks of a river or near his house; he may choose to leave-part of his garden waste, or reserve part of it for chena cultivation, and* 'so on, and to these portions of a private estate I should be slow to giveeffect -to a presumption in favour of 'the Crown.
The land, whether it be called forest or uncultivated or chena, mustbe a separate land, not a bit of land other parts of which are cultivatedand occupied by the owner.
LAINTIFFS prayed that the south-western part of Agala-kumburahena, which the defendant was said to have forcibly
entered and converted into a paddy field, be declared their pro-perty and the defendant ejected therefrom. They alleged thatthe land belonged to their common ancestor Ban Ettana.
The defendant denied Ban Ettana’s title and claimed the landunder a Crown grant dated 20th August, 1894. He pleadedin bar of plaintiffs’ claim, a judgment of the District Court ofKandy, which he had obtained against certain of their predecessorsin title.
At the trial second plaintiff was the only person who gave evi-dence for the plaintiffs. He deposed that the land in disputewas an appurtenance of Agalakumbura, that is a chena, within adistrict formerly included in the Kandyan Provinces; that the two
( 227 )
lands belonged to his mother Ban Ettana; that after her death in1001.
1869, he and his father cultivated it with kurakkan three times; J25 * 29.and that defendant converted the land into a paddy field aboutfour years before the action was raised.
Defendant’s counsel refused to cross-examine the witness asregards his evidence of prescriptive possession.
On the case for the plaintiff being closed, the counsel for thedefendant contended that, under section 6 of Ordinance No. 12of 1840, the land, proved to be a chena, should be presumed to beCrown property, and that the Crown was entitled to sell the landto the defendant, as it did by its grant dated 20th August, 1894.
Counsel then put the defendant into the witness box, who pro-duced the Crown grant and deposed that the aswedd umiai ngof the land cost him about Bs. 500, and that since then he hadraised crops on the field for six years.
The counsel for the plaintiff desired to rebut the presumptionrelied on by the defendant, but it was contended for the plaintiffthat, if plaintiff were allowed to do so, it would mean theadducing of evidence once again in support of plaintiffs’ title.
The District Judge (Mr. J. H. de Saram) ruled as follows: —
" The question is not whether the plaintiffs may' at this stagesupplement the evidence they produced to establish their title,but whether they are entitled to produce evidence by way ofanswer to the evidence produced by the defendant, on whom laythe burden of proving the ■ title of the Grown involved in thethird issue.,
“ It seems to me the plaintiffs are entitled under section 163 ofthe Civil Procedure Code to produce evidence that, at the date ofthe Crown grant to the defendant, the Crown had no title tothe land in question.”
After hearing the evidence of the second plaintiff in rebuttal,the District Judge dismissed the action with costs, holding thatno sannas or grant was produced by the plaintiffs, or taxes paid bythem, as required by section 6 of the Ordinance No. 12 of 1840,and that the evidence led in support of the cultivation of theland by plaintiffs for the prescriptive period was not satisfactory.
The plaintiffs appealed. The appeal was argued on the 25thJuly. 1901.
Bawa, for appellant.—The presumption created by section 6 ofOrdinance No. 12 of 1840 can only arise in a case in which theCrown is a party. Nor can defendant take advantage of thatpresumption without specially pleading it in his answer. D. C.,
Kandy. 63,047; 2 8. C. C. 88; C. E. TangaUa, 24,158: 5 S. C. C. 194;
( 228 )
July 25 and29.
C. R., Gampola, 1,094. As to evidence of cultivation, it is im-possible to prove that a field has been uninterruptedly used.Fields must lie fallow. Continuous cultivation of a field doesnot mean occupation from month to month, but only possessionut dominus. Nor can a chena land be cultivated uninterruptedly.The evidence produced shows that for more than thirty years theland has been possessed by the plaintiffs and their predecessorsin title without disturbance, ut domini. Such possession gaveplaintiff an absolute title to the land.
Wendt, for defendant, respondent.—Proof of possession ofKandyan chenas can only be adduced in the ways specified bysection 6 of the Ordinance. The District Judge has foundagainst the plaintiffs in that respect. They are purchasers underthe Crown, and it is competent for them to oppose the plaintiff’sclaim by the presumption in favour of the Crown. Caeippillai v.Ramanaden N. L. R. 33).
Bawa, in reply.
Cut. adv. vult.
29th July, 1901. Lawrie, A.C.J.—
In my opinion plaintiffs have not proved their light to this land.They say that their mother was the owner of Agalakumbura withits appurtenant chena, and that they sold the field some years agoto Tikiri Vidane. The defendant bought both the field and thechena at a Crown sale in 1894. The defendant did not succeed mgetting possession of the field; he brought action against TikiriVidane, which was dismissed of consent; but the defendant gotpossession of the chena and made it into a field, and he had beenin possession for four years before this action commenced in 1898.The plaintiffs then came into Court to recover the land; they hadno written title, and when they proposed to lead evidence thatthey and their predecessors possessed the land, the District Judgerightly allowed the proof to be led. The defendant’s proctor oughtnot to have refused to cross-examine the witness who deposedto such possession. But that evidence of possession is not satis-factory.
Independently of the right of the Crown, I think that cultivationof a chena at intervals of years the last being about seven yearsbefore action, is not sufficient title to justify the eviction of a manwho had been four years in possession, and had made the wasteland into a field.
I need not enter on the question as to the right of the Crownto chenas in the Kandyan Provinces. I have ' recently given
( 229 }
judgment on that point in D. C., Kurunegala, 1,601, in which theAttorney-General was plaintiff. 5 N. L. R. 98.
A judgment of mine in C. R., Gampola, 1,094, was relied onin the argument in this appeal, to the effect that possessionfor one-third of a century gave an absolute title to land.
I think that that is a correct statement of the law of the Island,although Bonser, C.J., has pointed out* that the Regulation No. 13of. 1822, section 2, enacted “ that all laws heretofore enacted or
customs existing with respect to the acquiring of rights
within and for the maritime districts of this Island shall cease tobe of any force or effect, and the same are hereby wholly repealed.”
I understand Sir John Bonser’s opinion to be that since 1822 ithas been impossible to acquire title by prescriptive possession inthe maritime provinces. Be that as it may, the Regulation of 1822(which was passed after the British accession to the KandyanProvinces) does not touch the Kandyan Law, by which possessionfor thirty years gave title.
I adhere to the construction of section 6 of the Ordinance No. 12of 1840 given by me in the Kurunegala case.
I wish only to add that the presumption in favour of the Crown
as to forests, waste and uncultivated and unoccupied land and
chenas, applies to a land of a size and position sufficient to be
regarded as a separate subject. A landowner may leave part of
his land uncultivated; he may have trees round his field, on the
banks of a river, or near his house;.he may choose to leave part of
his garden waste, or reserve part of it for chena cultivation, and
so on, and to these portions of a private estate I should be slow to
give effect to a presumption in favour of the Crown.
think it js likely that the land in dispute-in the Kandy casereported in 2 8. C. G. 86 was a land of that kind. I gave effectto this opinion in the case reported in 2 S. C. B. 12, and also inSaibo v. Andris, 3 N. L. R. 218, Bonser, C.J., agreeing.
The land, whether it be called forest or uncultivated or chena,must be a separate land, not a bit of land other parts of which arecultivated and occupied by the owner.
I am of the same opinion. On the view which I take of theterms of the Prescription Ordinance, I think that the judge rightlypermitted the plaintiff to prove his prescriptive possession, if hecould. The evidence, however, which the- plaintiff had at hiscommand was disclosed for another purpose, and was not sufficientto establish his claim on the ground of prescription.
July 256 29.
In Dabera «. Marthelis Appu, reported at p 210, ante.
( 280 )
July 25 <9 29.Uwdinnr,
I can see no reason for doubt as to the meaning of the presump-tion in favour of the Crown’s claim to chenas in the KandyanProvinces. I think that the provision in section 6 of the OrdinanceNo. 12 of 1840 means exactly what it says, and I agree with theDistrict Judge in C.R., Gampola, 1,094, that the more a man provesthat land is chena the more he assists the Crown in proving thepresumption in its favour.
I accept the Chief Justice’s view that this Court should notconcern itself, under the provisions in question, with what mendo with small comers of their land.
RAM MENIKA v. APPUHAMY