( 218 )
SAIBO v. ANDRIS ef al.
D. C., Tangalla, 432.
Crown grant—Presumption of ownership arising from issue of Croumgrant—Presumption arising from character of land—OrdinanceNo. 12 of 1840.
A sale of land by the Crown and the issue of a Crown grant tothe purchaser do not of themselves raise a presumption that theland was one over which the. Crown had disposing power.
Per Lawrie, J.—As to the presumption arising from the natureof the land, a swamp, waste, or uncultivated land, which is withinthe limits of or adjacent to cultivated land belonging to a privateowner, will not be presumed to be the property of the Crown.
LAINTIFF claimed a field named Karambadelawalakumburaby purchase from the Crown, for which he held a Crown
grant. Defendants claimed the same land as part of their landcalled Karambadelahena. The District Judge dismissed plaintiff’scase. He held that it was proved by witnesses on both sides thata portion of the land now in dispute was formerly a marsh,variously called Amunugilma, Helunode, and Karambadelawals;
( 219 )
that at the time of the Crown survey a portion of the landsurveyed for sale had been converted into a paddy field, anda portion (in extent 1 amunam, or 3 acres) was marshy anduncultivated; that the latter portion was, since survey and saleto plaintiff, converted into field by the defendants; that thequestion was whether the marsh was part and parcel of defend-ants’ land Karambadela, or whether it was a distinot and separateland ; that if it was a distinot and separate land, the presumptionoreated by section 6 of Ordinance No. 12 of 1840 would operatein favour of plaintiff for a portion at least of the land he had bought,but if the marsh was one and the same land with the chena,the defendants, who were owners of a part,.would be deemedto be owners of the whole; that the reason why the marshwas not brought under cultivation was, not because it wasconsidered to be Crown land, but because it had not been drained ;that the defendants were endeavouring to reclaim the wholeground, and they left the portion in question to the last to bedrained and made fit for cultivation ; and that plaintiff bought theland knowing, from its very name Karambadelawalakumbura,that it was a field in possession of some one.
Against the decree dismissing his case, plaintiff appealed.
Wendt, for appellant.
Dornhorst, for respondent.
11th October, 1898. Lawkie, J.—
In September, 1894, the Government Agent of the SouthernProvince gave notice in the Government Gazette that he wouldon a day fixed sell a paddy field No. 10,186, of 4 acres 3 roods 37perches, situated in Bowala in Giruwa pattu west.
It was stated that the applicant for the land was a Don Abey-wickrama Jayawardena and that the Crown was the claimant.
If the intending purchaser had made further inquiry he wouldhave found that members of the Kankanagedara family were inpossession of the land ; that they had made'a paddy field out of aswamp, which they claimed as part of Karambadelahena, whichthey said belonged to them ; and that the claim had been rejectedby the Assistant Government Agent, who had ordered the land tobe put up for sale. At the sale a Moorman, the plaintiff SumaLebbe Patchur Saibo, purchased the land, paying in all Rs. 320,more than Rs. 60 per acre.
This is his description of what happened :—
“ I went to the land with the Vidane Arachchi, who pointed“ out the land sold, and the defendants (Kankanangedara)
“ disputed my right and refused to let me enter.”
( 220 )
The plaintiff also said :—
“ It is a good paddy land, with a good supply of water both for
“ yala and maha from the Kikana stream When I went to
“ the land the defendants were in possession and had cultivated.
“ It is now in good cultivation The same extent of chena
“ land would.not be worth much.”
Now it is clear that, at the date of advertising the sale, the landwas not forest, waste, unocoupied, nor uncultivated, nor was it achena, which could only be cultivated after intervals of severalyears. The Ordinance No. 12 of 1840 did not apply.
There was no presumption that the land belonged to theCrown. Apart from the presumption arising from the characterof the land, I am of opinion that there is no presumption thatland conveyed by a Crown grant is land over which the Crownhad disposing power.
No Ordinance has ever given that privilege to a Crowngrant, and this court haB never held that there is a presump-tion.
It is strange that a grant in the name of Her Majesty, under sealof the Colony, signed by the Governor and by the ColonialSecretary, should have no intrinsic weight, but such I think is thelaw, and the reason is not far to seek.
Sales by Government are often instigated by private applicants.Lands are surveyed and advertised to which Government has noreal claim, of which it never was in possession.
A reference to any Gazette shows that Government advertisesand sells paddy fields and lands planted with cocoanuts.Government takes up the position that it does not warrant itstitle, that it leaves to the purchaser the chance whether he getspossession or not. Knowing this we must look into the evidencein each case and decide whether the land granted did or did notbelong to the Crown.
The plaintiff submitted that the paddy field in question was atthe disposal of the Crown, because a few years ago it was a swamp,and that a swamp is unoccupied land, it must be presumed to bethe property of the Crown.
I am unable to assent to the proposition. Certainly the Crownis not presumed to be the owner of every bit of swamp or everybit of waste land in the Island. This swamp was not claimed bythe Crown as an appurtenance of any other Crown land, it wassurveyed and sold as a separate subject, although it is clear thatit is a part of a land Karambadela. Part of that land was calledKarambadelahena, and this part was called Karambadelawala andnow Karambadelawalakumbura.
( 221 )
It is proved that the defendants (of the Kankanagedara family)were in possession of Karambadelahejna, and that they claimedthis swamp or wala as part of their land.
On every estate there must be some waste, some uncultivatedland, some clumps of trees, some land for firewood, or, as here, ahollow where the water lies, which waits for the man of energyand oapital to improve.
The Grown surely cannot be presumed the owner of scraps ofuncultivated land adjacent to the cultivated land belonging to itssubjects. I do not find evidence that even when-the land was aswamp it was land at the disposal of the Grown.
I am for affirming the judgment with costs. I hope theplaintiff will get repayment of the money paid by him.
Bonser, G.J.—I agree.
October ll.Lawme, X
SAIBO v. ANDRIS et al