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Present : De Sampayo J.
WANDURAGALA u. SENMANDA et al.
5—C. B. Kurunegala, 4,946.
Nindagama—Grant of royal village by the British Government—Muttetufields—Action by one co-owner—Registration of nindagama—Conclusive proof—Service Tenures Ordinance, No..4 of 1870, s. 10.
A claim to a' nindagama cannot be based on a grant from theBritish Government of “ muttetu fields ".only.
The registration of a land as a nindagama is not conclusive proofof its existence as a nindagama. ■
The owner of an undivided share of a nindagama cannot sue . thetenants for commuted dues without joining the co-owners asparties to the action.
HE plaintiff as the owner of Gettuwana nindagama sued thedefendants, forty-three persons in all, as the paraveni. tenants
of the Galahitiyawa panguwa of the said nindagama for the recoveryof a sum of Rs. 64.50 as the commuted dues of' the said panguwafor the years 1922 and 1923. According to plaintiff, .the originalowner of the nindagama was Wanduragala Mohottala, Ratelekam.He left one child, Bandara, who had two children. P. B. Wanduragalaand Mrs. Hulugalla. P. B. Wanduragala, by deed.No. 32,175 datedJanuary 11, 1913, gifted his half share to his wife EmbelegodaKumarihamy. In the year 1918, P. B. Wanduragala and his sister,Mrs. Hulugalla. it was alleged, made an amicable division of theirfamily lands, the former taking the entirety of this nindagama.The plaintifE claimed on a deed of transfer No. 423 dated July 4,1923, executed by Embelegoda Kumarihamy. The Commissionerof Requests held that by virtue of the arrangement specified -abovethe plaintiff on the deed of transfer became the sole proprietor of thenindagama, and gave judgment for the plaintiff.
Drieberg, K.C. (with Croos Da Brora), for defendants, appellants.—The plaintiff is the owner of an undivided half share of thenindagama. She cannot, therefore, maintain the. action for dueswithout joining the co-owners as parties (Banda v. Lapaya 1). TheCrown grant gives the plaintiff only two amunams of muttettu fields, .but she is claiming the lands in dispute as a nindagama, whichcannot be composed of muttettu fields only. The grant itselfnegatives the idea of a nindagama . The entry in the- Sendee TenuresRegister is not conclusive. Evidence can always be led to disprovethis entry (Punchirala v. Kandapat vihare *). The judgments in theVillage Tribunal cases are not binding on the defendants. -They1 (1891) 2 C. L- R. 38.* (1884) 6 S. C. C. 1S7.
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1986. were decided without jurisdiction. The land is situated within theWarSura- limits of the Local Board of Kurunegala. The value of the land is-gak»v.over Rs. 20. There is no evidence of payment of dues. The
Strmmda piajn^jg»s rights, if any, are therefore prescribed. The account bookproduced has not been kept in the ordinary course of business.
H. V./ Perera (with Samarakoon), for plaintiff, respondent.—The account books were never challenged. They were kept by theplaintiff’s predecessor in title. Entries were made whenever pay-ments were made. The plaintiff’s witness states that he knewpersonally of these payments. The defendants are bound by theVillage Tribunal cases, which were merely for rent. The plea ofjurisdiction cannot therefore be raised. The judgments in thesecases certainly arrested prescription. The nature of the Crowngrant shows that extensive rights were granted. The description iswide enough to include the claim of the plaintiff.
Dneberg, K.C., in reply.
April 8, 1925. De Sampayo J.—
The amount involved in this case in small, but some important andinteresting questions arise for consideration, and their effect will* befar reaching. The plaintiff, alleging that she is the owner and pro-prietor of Gettuwana nindagama, and that the defendants, forty-threepersons in all, are the paraveni tenants of the Galahitiyawa panguwaof the Said nindagama, claims Rs. 64.50 as the commuted dues ofthe said panguwa for the years 1922 and 1926. I will presently<;ieal with the. question whether Gettuwana is a nindagama :.ndwhether the defendants are paraveni tenants of any panguwa therein.But at the outset of the case a difficulty arises as to the constitutionof this action. The plaintiff's case is that the original owner of thenindagama was Wanduragala Mohottala, Ratelekam ; that thisMohottala left one child Bandars, who had two children, P. B.Wanduragala and Mrs. Hulugalla, that P. B. Wanduragala by deedXo. 32,175 dated January 11, 1923, gifted his half share to his wifeEmbelegoda Kumarihamy, and that" in the year 1918, P. B. Wandura-gala and his sister, Mrs. Hulugalla, made an amicable division oftheir family lands, the former taking the entirety of this nindagamaand Mrs. Hulugalla some other lands. The Commissioner ofRequests holds that by this arrangement Mrs. Hulugalla relinquishedher rights to the nindagama, and that by reason of the deed of saleXo. 423 dated July 4, 1923, executed by Embelegoda Kumarihamyin favour of the plaintiff, she (the plaintiff) became the sole proprietorof the nindagama. But this is impossible for more than one reason.At the date of the alleged exchange P. B. Wanduragala had nointerest in the nindagama, as he had five years before transferredhis half share to his wife. In the next place there was no deed foreffectuating the exchange, and1 assuming that P. B. Wandurnffala
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possessed the nindagama on behalf of his wife, there was ’not sufficientlength of time to mature a prescriptive title, even if the PreseriptionOrdinance applies to a case of the overlordship of a nindagama.The alleged exchange has therefore no legal effect. Finally, thedeed of sale from Embelegoda Kumarihamy in favour of the plaintiff. in express terms transferred only an undivided half share and notthe whole of the nindagama, the vendor actually reciting the deed ofgift from her husband for that half share. The plaintiff cannotin any sense be regarded as the proprietor of the whole nindagama.The material importance of this point is that the owner of only ashare of a nindagama cannot sue tenants for commuted dues withoutjoining the co-owners as parties to the action, and the plaintiff,therefore, is at once out of Court.
The practically important questions, however, are as to the.nindagama itself and as to the defendants' alleged liability as paravenitenants. The plaintiff herself stated in her plaint that she was“ owner and proprietor of Gettuwana nindagama consisting of aboutfour umunams of muttetu and the appurtenances thereof. ” Thisappears to me to involve an impossibility. A nindagama canin no case consist of muttetu fields only,, and if plaintiff meant by■* appurtenances M the fields possessed by tenants subject to services,it appears to me absurd to call some fields as appurtenances of otherfields. The fact is that the plaintiff is in a considerable difficultyin calling Gettuwana a jdndagama, and the history of her titlenegatives that idea. Gettuwana was a royal village consisting ofservice lands and neuttetn fields, and the British Sovereign succeededto the ancient King and became the proprietor of the entire royalvillage. But the- policy of the British Government was not to exactservices or dues from the tenants of the royal villages, but to leavethe service lands to be possessed absolutely by the nilakarayas.The preamble to the Service Tenures Ordinance, No. 4 of 1870, issufficient evidence of this fact, for it recites that “ the enforcementof services for lands in the royal villages lias been long sinceabandoned by the Government. It is in these circumstances thatoh January 9, 1820, the Governor, Sir Bobert Brownrigg, made acertain grant to Wanduragala Mohottala which is the origin of theplaintiff’s title. It is significant that the Governor did not giantthe village Gettuwana or the service land: he only granted *' the.muttetu fields of the village Gettuwana being two amunams inextent. ” The plaint speaks of the muttetu fields being fouramunams. How the original two amunams got enlarged into fouramunams does not appear, but it is unnecessary to notice thediscrepancy, so far as this case is concerned. * The grant itselfnegatives the idea of Wanduragala Mohottala having become theproprietor of a nindagama. Counsel for the plaintiff, however, reliedan the further words in the grant—44 with the rights and' appurte-nances formerly enjoyed according to custom by the chief grantee
* Wttndura-gaia v.
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198g‘ of the said vflage Gettuwana being the property and in possessionDeSAMPAvoof our Sovereign Lord the King and argues that WanduragalaMohottala had rights over the service fields and their tenants.Wandura- The document does not admit of this construction. It describes thej?OTmgmfaas being the property and in possession of the British
Sovereign, and it follows that Wanduragala Mohottala had no rightsin it previous to the grant. The expression “ rights and appurte-nances formerly enjoyed according to custom by the chief grantee ”is a curious way of referring to the Mohottala having rights to theservices of the paraveni tenants. It seems to me that this is a mereflourish of language quite characteristic of Governor Sir RobertBrownrigg. The plaintiff and her predecessors could only rely onthe grant itself which . only transferred the muttetu fields. Theplaintiff’s counsel next relies on the fact that Gettuwana is registeredas a nindagama in the Service Tenures Register under the OrdinanceNo. 4 of 1870. The entry is very peculiar. It mentions for pangu*,but the fields and gardens of which the pangus consisted are noteven named, nor are the services mentioned, but only the amount ofmoney to be paid in lieu of services is stated. There is somethingwrong in this register. The Ordinance expressly requires theCommissioners to inquire into and record in the register, inter alia,the nature and extent of the services due for each pangu. Butassuming that the entry in this instance is regular in every respect,what does it amount to ? The Ordinance (see section 10) makes theregister final and conclusive as to the tenure of the pangu, whetherit be paraveni or maruwena, the nature of the service due for eachparaveni pangu and the annual amount of money payment for whichthe services may be fairly commuted. It nowhere makes theregistration of lands as a nindagama conclusive proof of the existenceof it as a nindagama. It may indeed be some material which alongwith other evidence may be used in the case of a contested question.An attempt was made in this case, to prove-that the Wanduragalafamily had in fact exercised rights over Gettuwana as overlords andexacted services or commuted dues from the holders of lands otherthan muttetu fields. This attempt, however, wholly failed. In 1917
P.B. Wanduragala instituted over hundred cases in the VillageTribunal of Pilessa against the present defendants yand others for therecovery of small sums as the commuted .value of services due Bythem for the years 1914, 1915, and 1916. So far from showing thatprevious to those cases the defendants had rendered services or paidtheir value, if seems to me that the very institution of thesenumerous cases leads to the opposite conclusion. The casesthemselves are very peculiar. The severest criticism of them comesfrom the Commissioner of Requests who. says at the trial of thetest case P. B. Wanduragala gave oral evidence. No document wasproduced. Judgment was entered against the various defendantswithout their being heard. In the test case the defendant was not-
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naked to state his defence …. and an ew parte judgmentuppeurs to have been obtained.'ll Moreover the Village TribunalAppears to have had no jurisdiction.' The plaint itself in this casestates that Oulahitiyawn pang turn, of which the defendants orealleged to be tenants, is situated within the Local Board limits ofKuruneguia, and it is clear that the jurisdiction of the Village Tribu-nal of l’ilessu did uob extend to these limits. The Commissioner ofBequests is obviously right in holding that the defendants are notestopped from denying the plaintiff's claim. It is of a piece withthe nature of the proceedings that the judgments have been whollyfruitless. Writ* were Issued to the Fiscal to seise and sell the landsin satisfaction of the judgments, but the plaintiff wus unable topoint out to the Fiscal the boundaries of tbe lands. The representa-tive of tliu Wunduraguhi family admits that none of them knowsthe boundaries and can point out tbe lands, ami the result i*that the judgments remain up to this day unexecuted.
Another attempt to prove that the defendants laid paid dues isthe production of a hook said to have been kept b,v 1*. B. Wandura-galn who is now dead. The production of this hook is sought- to bejustified under section M2 (2) of the Evidence Ordinance. But it Isnot a book " kept in the ordinary course of business " within themeaning of that section. It is iu feet not an accouut book, but «memorandum book apparently made ad httr for the purposes of theVillage Tribunal oases, for I find the particulars of those eases givenat the end of the document. It is at best a register of the hinds andtheir alleged tenants. It is not in die handwriting x>f 1 B.Wanduragnla, und nobody can say in whose handwriting it Is.It ie said to be genuine—no doubt it is, so far as It is not afabrication. But I do not consider it to be admissible in evidence.
The only person who gave evidenoe on behalf of the plaintiff isher husband mid attorney Mr. M. B. Wanduragala. He is a youngman who obviously knows nothing of die history -of the so-calledomdagoma or of its tenants. It must be said to his credit that hefrankly, confesses his ignorauce. He cannot even say dint- thedefendants are descendants or heirs of the men whose names appearin the Service Tenures Begist-er hs tenants. It is impossible to saydint the plaintiff hns proved that the defendants are tenants in -onysense. I have already, held that the plaintiff and her predecessorsin tide bad no right to any land suhjeot to sendee. . The plaintiffis entitled to a shure in certain mutteta fields originally panted toWanduragnla Mnhot-tnla by the Crown, but the defendants are notIn possession of them nor dispute the plaintiff’s tide to diem.Their claim is only to the holdings which they have possessed .foryears as their own property.
In my opinion the judgment appealed from is erroneous, andmust be sot- aside witli costs in both Courts.
WANDURAGALA v. SENMANDA et al