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WIMALESEKERA v. SILVA.
D. C., Galle, 3,883.
Crown grant—Action rei vindicatio against grantee—Ordinance No. 12 of
Per Browne, A.J.—Under our law there is no more sanctityattaching to a Crown grant than the presumption accorded to itunder Ordinance No. 12 of 1840, and a person who chums title toa parcel of land is not precluded from instituting an action rei vindi-catio in respect of it, merely by reason of the Crown having made agrant of such parcel to a third party.
A Crown grant is unavailing to pass title, unless the land grantedbe, at the date of the grant, the land belonging to and at the disposalof the Crown.
De Silva v. Maivdorisa (8 S. C. C. 58) commented vipon. .
N this case the plaintiff sought to recover a parcel of land whichthe defendant had possession of, and which he claimed
under a grant of the Crown in his favour. At the trial thedefendant contended that it was not open to the plaintiff toinstitute an action rei vindicatio in respect of land of which theCrown had made a grant to the defendant. The Court belowdecided against his contention, and on the evidence gave judg-ment .in the plaintiff’s favour. The defendant appealed.
Dornhorst, for appellant.
Wendt, for respondent.
3rd November, 1897. Lawrie, A.C.J.—
In this action the burden of proof lay on the plaintiff.
* It is proved that Ahe predecessors of the plaintiff have heldwritten titles to this land, and have possessed it for more than athird of a century. It seems very clear that when the Governor ofCeylon, in the name of the Queen, professed to sell a part of it in1890 as waste land belonging to the Crown, the grant must havebeen made under a mistake of fact. It is proved that the landwas then planted and was not waste, and that it was land belongingto one of Her Majesty’s subjects.
The parties are litigating for the portion B in the figure of survey(filed p. 99) of Mr. Goonesekera, which is the portion containedin the figure of survey 151,196, numbered D 112, attached to theCrown grant of 30th June, 1890 (page 49), to defendant’s execution-debtor, G. M. Owen de Silva.
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The land therein depicted is part of 9 acres of the high groundrepresented in the figure of survey B (page 21) filed by plaintiff.
The learned District Judge has rightly held it has been provedthat this land was possessed by the plaintiff and his vendor inand since 1850, i.e., for forty years prior to execution of the Crowngrant in favour of defendant’s execution-debtor.
In his plaint of September, 1895, plaintiff claimed title to two-thirds thereof, but at the trial it transpired plaintiff had on the8th August, 1895, gifted the land to his three children, one ofwhom had since died childless, leaving as her heirs her husband,her father, and her two brothers. The gift gave her one-tbird oftwo-thirds, equal to two-ninths. Her husband would take a moietythereof or one-ninth, plaintiff a moiety of the other one-ninthor one-eighteenth, and each brother one-thirty-sixth. The learnedDistrict Judge held plaintiff entitled to one-sixth by one-eighth,equal to seven-twenty-fourths of inter alia, lot B (the only one indispute), but I do not see ho would be entitled to more than one-n'nth thereof.
fn the Court below, however, counsel for the defendant raisedan objection that the action rei vindicatio will not lie for land. which has been granted by the Crown, but that the action is notopen to those who have bought rent alienam a fisco aut a prin-ciple vel augustse domo eo quad hi statim securi sunt (Voet, 6, 1,23), Lorenz Civ. Prac. 68. Even the one indication of the opinionupon a question of evidence only that the onus of proof rests upona person setting up title against a Crown grant (8 S. C. C.58) has not, so far as I know, been upheld in any action institutedby a Crown grantee. In that and many other cases (2 S. C. C.189; 3 8. C. C. 80 ; 5 S. C. C. 194; 2 S. C. R. 12, Sella Naide v.Christie ; 2 C. L. R. 49, <fec.), the right of a party like the plaintiff
here to come forward and show that the land granted by the Crownwas never the property of the Crown, for it to be granted wasnever disputed, and the grantees never yet have stood securefrom all claim.
Assuming that action to lie against the Crown to the extentindicated in 2 N.L. R. 361,1 do not know it ever has been suggestedere now that a Crown grantee takes an absolutely safe title.On the contrary, I believe my Lord truly in the Ivies caseexpressed the state of the law to be “ that a Crown grant is unavail-“ ing to pass title unless the land granted be at the date of“ the grant land belonging to, and at the disposal of, the Crown,’’and that under our law there is no more sanctity attaching to aCrown grant than the presumption accorded to it under OrdinanceNo. 12 of 1840, when it conveyed land of the character
therein particularized. The Crown has in practice limited itsrights and powers by both that Ordinance and the Ordinancerelating to its powers to acquire land into the contingencies outof which the powers so given to it arise. It has never yet in Ceylonclaimed right absolute over all lands, or guaranteed absolutesecurity to its vendors in words or in practice.
This issue, however, was not raised in this action, save in argu-ment by defendant’s counsel after the close of the plaintiff’s case ;and when the precedents and practice thereto have never regardedsuch an immunity to exist with a corresponding liability uponthe Crown, I cannot say the learned District Judge was wrong indeclining to accede to the contention.
WIMALESEKERA v. SILVA