'• 0BASNAYAKE, C.J".—Kandiahv. Village Committee of Atchuvely
Present: Basnayake, C.J., and Sinnetamby, J.S. KANDIAH, Appellant, and VILLAGE COMMITTEE OFATCHUVELY, Respondent
8. G. 555—D. 0. Jaffna, 8,175
Village Communities Ordinance (amended Cap. 19S)—Date of its commencement—Vesting of property in a Village Committee—Sections 39, 41 (2) (a)—Effect ofwords “ principal Ordinance " in an amending enactment—Ordinance No. 00of 1938, s. 4—Interpretation Ordinance, s. 5 (1) (4).
Section 39 of the Village Communities Ordinance roads as follows :—
“ All property movable or immovablo enjoyed or controlled at thecommencement of this Ordinance by tho inhabitants of any villago area orof any area deemed by virtue of any written law to bo a villago area underthis Ordinance, shall be vested in tho Villago Committoo constituted or sodeemed to have been constituted for that area undor tho provisions of thisOrdinance …. ”
Held, that the words “ commencement of this Ordinanco ” in tho Sectionmeant, according to the words “ principal Ordinanco ” in section 4 of theVillage Communities Ordinance No. 60 of 1938, road with sub-sections (1)and (4) of section 5 of the Interpretation Ordinanco, tho commencement ofOrdinance No. 9 of 1924, i.e., 1st November 1924.
Per Basnayake, C.J.—Tho expression “ immovablo property ” inSeotion 39 of the Village Communities Ordinance is used in tho sense ofcorporeal immovable property only and does not includo incorporeal rights.Therefoie, a right to water cattle at a kemi or pond, being an incorporeal right,cannot be vested in a Village Committee by that Section.
aaPPEAL from a judgment of the District Court, Jaffna.
V. Per era, Q.C., with Sir Vkwatte Jayasundera, Q.C., J. Senathi-rajah and N. K. Rodrigo, for Defendant-Appellant.
S. J. V. Chelvanayakam, Q.C., with E. B. Wikramanayake, Q.C.and F. Arulambalam, for Plaintiff-Respondent.
Cur. adv. wit.
May 20, 1957. Basnayake, C.J.—
This is an action by the Village Committee of Atchuvely in respectof a land on which a kemi or pond existed prior to the year 1948. Theclaim is founded entirely on the ground that till then the publicwatered their cattle at the kerni which was in the land. In that yearthe defendant purchased the land and shortly afterwards filled up thekerni and erected thereon shop buildings costing about Rs. 20,000.
It would appear that for about 60 years prior to the purchase of theland by the defendant, cattle had been taken to the kerni for the purposeof watering them. None of the witnesses called by the plaintiff say thatthe persons who took the cattle to this kemi were all inhabitants ofAtchuvely and that they did so as of right. The evidence does notestablish when the kemi first came into existence. But it appears that
BASNAYAKE, C.J.—Kandiahv. Village Committee of Aichuvely
about 60 years ago one Arunar built some steps out of dressed stoneto enable cattle to reach the water, but there is not a single witnesswho has been able to say why Arunar did this. Whether it was an actof kindness to animals or whether it was an assertion of a right doesnot appear from the evidence.
The documentary evidence produced by the plaintiff does not showthat prior to 1939 the Village Committee cleaned the kerni althoughthe oral evidence shows that it was cleaned by the Village Committeeeven before and as far back as 1924, but that evidence is of a vague anduncertain character.
A claim such as that made by the Village Committee should beestablished by clear and satisfactory evidence (Smitv. Russouw & others1)especially where it is sought to dislodge the title claimed by the defendantgoing as far back as 1925 or even 1904, which is the date of the plan
relied on by him.
The kerni appears to have been generally in an insanitary conditionand not at all times suitable for watering cattle. In 1929 the SanitaryInspector reported that the kerni was dirty and money was voted toclean it. In 1932 it was reported that the pond was in “ a very dirtycondition and gave out a ‘ stinking smell ’ ”, and money was votedagain to clean it. In 1934 it was again reported that the pond wascausing “ stinking and unpleasant smells ” and should be cleaned.
The plaintiff relies on section 39 of the Village CommunitiesOrdinance. The material portion of that section reads—
“ All property movable or immovable enjoyed or controlled at thecommencement of this Ordinance by the inhabitants of any villagearea or of any area deemed by virtue of any written law to be a villagearea under this Ordinance, shall be vested in the Village Committeeconstituted or so deemed to have been constituted for that area underthe provisions of this Ordinance. ”
In the first place it is necessary to determine the date of commence-ment of the Ordinance as section 39 vests in the Village Committeeproperty enjoyed by the inhabitants on that date. The section in itspresent form was enacted by section 4 of Ordinance No. 60 of 1938which introduced all the sections of the Village Communities Ordinancecommencing from section 3 and ending with section 63. The enactingsection reads:—
“ Sections 3 to 36, both inclusive, of the principal Ordinance arehereby repealed, and the following sixty-one sections are herebyinserted in the principal Ordinance and shall have effect as sections 3to 63 thereof. ”
What is the meaning to be given to the words “ at the commencementof this Ordinance ” in section 39. Do they mean at the commencementof Ordinance No. 9 of 1924 or at the commencement of Ordinance No. 60
1 1913 G. P. D. 847 at 853.
BASNAYAKE, C.J.—Kandiah v. Village Committee of Atchuvely
of 1938 1 The answer to that is to be found in the words “ principalOrdinance ” in section 4 of Ordinance No. 60 of 1938. The effect of theuse of the words “ principal Ordinance ” in an amending enactment isstated in section 5 of the Interpretation Ordinance. The material por-tions of that section read :■—
“ (1) In any Ordinance which amends any other Ordinance, the ex-pression ‘ the principal Ordinance ’ shall mean that other Ordinance,
that is to say, the Ordinance which is amended.
“ (4) Every amending Ordinance or Act shall be read as one with
the principal Ordinance, enactment or Act, to which it relates. ”
The sections inserted in Ordinance No. 9 of 1924 by Ordinance No. 60of 1938 have therefore to be read as one with the principal Ordinance.The effect of reading section 39 as one with Ordinance No. 9 of 1924is to make the reference to “ this Ordinance ” in that section a referenceto Ordinance No. 9 of 1924 and not the amending Ordinance No. 60 of1938. The “ commencement of this Ordinance ” would therefore meanthe commencement of Ordinance No. 9 of 1924, i.e., 1st November 1924.
As the claim to the land in which the kemi was is founded on theground that the public enjoyed the right of watering their cattle at thekerni, in order to succeed in its action the plaintiff has to establish t-liatthe particular right which it claims is movable or immovable propertyenjoyed or controlled by the inhabitants of the village area on 1stNovember 1924.
Now the right that is claimed is the right of watering cattle. Thereis evidence that cattle were watered at this kemi. But it is not clearwhether they were watered as of right or not and whether it was theinhabitants alone who watered the animals. Is the right claimed movableor immovable property 1 Clearly it is not movable property. Is itimmovable property 1 To answer that question it is necessary toascertain the meaning of immovable property in this context. In ourlaw property falls into two divisions, corporeal and incorporeal property,and corporeal property is further subdivided into movable and immovableproperty. There is nothing in the context of section 39 of the Ordinancewhich requires that the expression immovable property should be inter-preted in any other than the ordinary sense. In that sense it meansonly tangible or corporeal .immovable property, viz., land.
My view gains support from section 41 (2) (a) of the Ordinance fromwhich it would appear that where the Legislature intended to vest rightsover property as distinct from property it did so expressly.
Now a right to water cattle is an incorporeal right and would thereforenot properly' fall under the description of immovable property in acontext such as this. That view of the matter concludes the case as faras the plaintiff is concerned because the right it claims, being an in-corporeal right, is not vested in the Village Committee by section 39 ofthe Ordinance.
Learned counsel for the appellant submitted that the right contem-plated in section 39 is a right which must be exclusively enjoyed by
BASNAYAKE, C.J.—Kandiah v. Village Committee of Atchuvely
the inhabitants of the village area and that that section does not con-template rights which the public generally and not only of the villagearea enjoy. Learned counsel contended that according to the Ordinancethe kemi being a pond situated by the side of the Ghunakam Valli road,a public road, it was open to any person who led cattle along the roador drove any bullock-driven cart along it to water his animals at thepond as of right. Such a right which is not exclusively enjoyed by theinhabitants, he contended, is not a right which is vested in the VillageCommittee by section 39. As stated earlier, the evidence does not showthat the kemi in question was enjoyed exclusively by the inhabitantsof Atchuvely. Not one witness who took his animals to drink waterat this kemi has been called. The witnesses are casual observers suchas Advocates and local residents who deposed to the fact that they hadseen animals being taken to this kemi for the purpose of watering. Theyalso say that the Village Committee from time to time cleaned the kemi.In the absence of evidence that the pond was in the exclusive enjoymentof the inhabitants learned counsel contended that it may be regardedas a public pond and that such a public pond would be under the controlof the Sovereign and would not be vested in the Village Committeeunless a vesting order under section 45 of the Crown Lands Ordinancehad been issued. The evidence is that there is no such vesting order.
In view of the conclusion I have reached on the meaning of the ex-pression immovable property in section 39, it is not necessary to deal
with this submission of counsel.
The learned trial Judge has rejected the evidence of title producedby the defendant on the ground that the inhabitants of Atchuvely hadpossessed the property from time immemorial and used it as publicproperty. He has evidently not kept his attention focussed on section 39which is all-important. For unless the claim of the plaintiff comes withinthe ambit of that section he cannot succeed.
As I have pointed out above the Village Committee is not entitled,to maintain this action against the defendant. Nor is there any reasonfor rejecting the defendant’s title merely on the ground that the kernion this land was at one time used for watering cattle. There is evidencethat the water of this kerni was used for the purpose of irrigating theland which is now owned by the defendant and which was atthat time owned by Dr. John, his predecessor in title. The only personwho can speak to it at first hand is the witness Gunaratnam who wasduring the relevant period first a pupil and later a teacher at theAtchuvely English School which adjoins the land in dispute. He saysthat water from the kerni was used for the purpose of irrigating Dr.John’s land from 1920 till 1927. That the water was again used in 1941and 1942. The learned Judge does not reject the witness’s evidenceon this point. There is therefore definite evidence of the user of the kemiby the defendant’s predecessors in title for purposes other than thewatering of cattle.
For the above reasons the defendant’s appeal is allowed and theplaintiff’s action is' dismissed. The defendant is entitled to his costsboth here and below.
SINNETAMBY, J.—Kqndiah v. VMage Committee of Atchuvely
I agree with, the order made by my Lord the Chief Justice allowingthis appeal, I would base my decision on the following grounds.
The right claimed by the plaintiff Village Committee is a right to theownership to the land described in the schedule to the plaint. Thedecree against which the present appeal has been preferred declaresthe plaintiff entitled to the land described in the schedule to the decree,in extent one lacham, which includes the kerni in question. Theplaintiff Village Committee makes its claim firstly on the basis thatthe land and kerni having been used and enjoyed by the inhabitants ofAtchuvely it vested in the Village Committee by virtue of the provisionsof section 39 of the Village Communities Ordinance and, secondly, onprescriptive possession.
Dealing first with the claim to title based on prescriptive possessionI agree respectfully with the views expressed by my Lord the ChiefJustice that the oral evidence of possession is of a vague and uncertaincharacter. The only evidence of possession relied on by the plaintiffVillage Committee is that which relates to the cleaning of the kerni.In my view the mere fact that the kerni was cleaned occasionally by theVillage Committee does not establish adverse possession sufficient toestablish a claim by prescription. The cleaning may well have been donefor sanitary reasons and in the absence of other cogent evidence ofpossession ut dominus I take the view that the claim based on prescriptivepossession must fail.
In regard to the main ground on which the Village Committee basesits claim, in order to succeed the Village Committee must show thatthe inhabitants of Atchuvely “ enjoyed and controlled ” the kerni andthe land appurtenant to it when the Village Communities Ordinancecame into existence in 1924.
My Lord the Chief Justice in his judgment which I have had theadvantage of reading has set out, on this aspect of the case, the argumentof learned Counsel who appeared for the appellants. I agree with, thecontention that the respondent, on whom the burden lies, has failed toprove that the kerni in question was controlled and enjoyed mainly ifnot exclusively by the inhabitants of the village area. The situationof the kerni by the high road and the existence of a weight rest closeby suggest that they were intended for the weary traveller from afarto rest and to water his cattle. Had the kerni been by the side of a minorvillage road one may have been justified in coming to a differentconclusion. The evidence does not disclose that those who rested andwatered their cattle were the inhabitants of that area : on the contrarythe chairman of the Village Committee, Mr. Veerasingham, in the courseof his evidence stated that the kerni was used by members of the publicwhich suggest that it was not confined to the inhabitants of the area.User from time immemorial by the public, as found by the learned trialjudge, may establish a right in the public to the use of the kerni butit would not vest proprietary rights in a section of the public, viz., theinhabitants of Atchuvely as represented by the Village Committee.
S. KANDIAH, Appellant, and VILLAGE COMMITTEE OF ATCHUVELY, Respondent