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Present: Middleton J. and Wood Renton J.
SILVA v. BASTIAN et al.
D. C. Galle, 10,55-5.
Crown grant—No presumption of title in favour of Crown.
A Ci'own grant by itself creates no presumption of the title of theCrown to the land which it conveys.
fjpHE facts are set out in the judgment of Middleton -J.
De Sanipayo, K.C. (with him J. W. de Silva), for the seventh totwelfth defendants, appellants.
A. St- T Jayeicardeiip, for the thirteenth defendant, appellant-Baiea. K.C. (with him Gooneratna), for the plaintiff, respondent.
Cur. adv. vult.
February 8. 19J2. Middleton J.—
This was a partition action in which plaintiff sought to partitiona land called Eluvilla, to which first to sixth defendants claimed titlethrough one Kumarasinghe Arachchigey Siman, to whom a grantwas given on December 6, 1859- The seventh to thirteenth defend-ants intervened by statements of claim, in which they laid claimto the land on the ground of prescriptive possession. The plaintiffand one witness were called, when the Judge held that the issueswere the following: —
Does the Crown grant give a good title to plaintiff?
Was the Crown the owner of the land at the time the Crown
grant issued, and is if necessary for the plaintiff to provethis ?
Have the seventh to thirteenth defendants acquired a title
to the land by prescriptive possession ?
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He then ruled in favour of the plaintiff that the Crown grant mustbe presumed to have passed a good title to the grantee on theauthority of De Silva v. Mendorisa,1 and called upon the intervenientsto prove their title by prescription.
This being a partition case under section 4 of the Ordinance, theJudge's duty is to hear evidence in support of the title of bothplaintiff and defendants, upon whom the burden is equally castof proving their title to the satisfaction of the Court. See alsoManchihamy v. Andris.2
The dictum of Burnside C.J., on which the District Judge relies,was not supported by the other two members of the Court, one ofwhom expressly dissented from it, and has therefore no authorityas a binding decision of this. Court. Saibo v. Andris,3 Rodrigov. Livera* Wimalaseliera v. Silva,3 and Suppar v. Kanapathipillai*are decisions of this Court all opposed to the dictum of thelearned Chief Justice, and, so far as I am aware, that dictum hasnot been approved of by this Court. The decision in Gunaseherav. Tiberis,7 as regards a certificate of sale under the Grain TaxOrdinance of 1878, does not seem to me to apply to this case.The Crown distinctly declines to warrant and defend title, and thepresumption sought to be drawn here goes further than the presump-tion approved of in that case, and which, indeed, Mr. Justice Wendtthought the Court was not bound to draw in every case.
The plaintiff and the first to sixth defendants may very well beentitled to the land in question by prescription, – beginning possiblyat the date of the Crown grant or later, but I do not think, on theevidence heard by the District Judge, that they have up to thepresent establishment even a primd facie title. In my opinion theorder of the District Judge must be set aside, and the ease sent backfor due proof, under section 4 of the Ordinance, of the titles of thecontesting parties, when the District Judge will decide which is toprevail. The appeal will, therefore, be allowed with costs.
Wood Renton J.—
I agree with my brother Middleton that this case must go back fortrial in the District Court, and I concur in the order that he hasproposed. I desire only to add a word in regard to the attempt ofthe learned District Judge to resuscitate the discredited doctrinethat a Crown grant by itself creates any presumption of the title ofthe Crown to the land which it conveys. This proposition has beennegatived by a series of decisions, both reported and unreported,which were binding on the District Judge, as they are binding on us,and if . he had looked a little more closely into the authorities, theparties would have been spared the delay and the expense of this
(1886) 8S. C, C. 58.«(1896)2 N. L. R. 139.
(1890) 9S. G. G 64.s(1897)3 N. L. R. 61.
(1898) 3N. L. R. 218.*(1905)5 Tam. 70.
7 (1906) 10 N. L. R. 18.
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appeal. The statement of Burnside C.J., in De Silva v. Mendorisa,1that a Crown grant, being a record, raises a presumption that theCrown had the right to grant, and that consequently the burden ofproving that the Crown had no title in the land was thrown upon theparty setting up title in opposition to the grant, was obiter dictumonly. Clarence J. expressly declined to give any opinion on thepoint, and Dias J. said that the general opinion, so far as he wasaware, was that no such presumption existed. The case wasdecided by these two Judges on the ground that the facts weresufficient to give rise to the presumption created by section 6 ofOrdinance No. 12 of 1840. In Siman v. Johann2 Bonser C.J.expressed tire opinion obiter that a Crown grant gave an indefeasibletitle. But two months later he concurred in the contrary judgmentof Lawrie J. in Saibo v. Andris.3 With the exception of the twoobiter dicta just referred to, the current of judicial decisions in Ceylonhas run strongly in the counter direction. I need only refer to thedecisions of the Supreme Court in Wimalasehera v. Silva,4 Saibo v.Andris,3 and Suppar v. Kanapathipillai * The same rule has, to myown knowledge, been laid down again and again in unreported cases,and repeatedly the obiter dicta above mentioned, when relied on inthe District Court, have been abandoned here in argument at theBar. I would venture to hope that we shall hear no more of themas authorities.
Mr. Bawa argued that the ratio decidendi in the case of Gunasekerav. Teberis6 could be applied here. I do not think it can. In thatcase it was held that where a certificate of sale is given by theGovernment Agent under section 22 of Ordinance No. 11 of 1878, inthe form prescribed by the Ordinance, in respect of property sold fornon-payment of grain tax, a presumption arises under section 114 (e)of the Evidence Ordinance in favour of the person relying on thecertificate that the sale was duly made under the Ordinance; that thetax for non-payment of which the sale purported to be held was infact due; and that default had been made in payment of it. Section114 (e) creates a presumption only in favour of the regularity of actswhich an official is bound to do. There is here no question as towhether or not the Crown grant was regular in form, and the Crownwas under no obligation to grant a warranty of title. It was held bythe Full Court, as then constituted, in Fernando v. Morgan,7 as farback as 1872, that in conveyances of land from the Crown thepurchaser is not entitled to any covenant of title, and, in the absenceof express warranty, must be taken to have purchased at his ownrisk. There can therefore, be no room here for the application ofsection 114 (e) of the Evidence Ordinance.
' (1886) 6 S.C. C. 58.4(1897)3 N. L. R. 61.
* (1898) 4 N.L. R. 343.. .*(1905)5 Tamb. 70.
s 11898) 3 N.L. R. 218.6(1906)10 X. L. R. 18.
' (1872-1876) Rim. 57.
SILVA v. BASTIAN et al