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Present: Pereira J.
YATAWARA DISAWA v. LEKAMALAGE et at.
354—C. R. Kandy, 20,624.
Service Tenures Ordinance—Action to recover damages for non-perform-ance of customary services—Proof of damages—Assessment ofCommissioners under the Ordinance.
In an action by the overlord of a nindagama against nilakarayas*who have not commuted under Ordinance No. 4 of 1870, to recoverdamages for omission to perform the customary services,” it iscompetent to the Court to allow itself to be guided entirely bythe assessment of the Commissioners under the Ordinance if theproprietor does not prove that he is entitled to a larger sum thanthe assessed amount, although the Court may at its discretion•require the proprietor to prove the actual amount of damagesustained by him.
'J'HE facts appear from the judgment.
De Sampayo, K.C., for appellant.
J. W. de Silva, for the respondents.
Cur. adv. vult.
November 22, 1912. Pereira J.—
The plaintiff is the trustee of the Maha Dewale at Kandy, and the-'defendants are the paraveni nilakarayas of the dewale, and as suchthey hold the lahds described in the schedule annexed to the
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plaint. The defendants have not commuted under Ordinance No. 4of 1870,. and as they omitted to perform the ctistomary services,the plaintiff brought this action to recover the sum of Bs. 98,being damage sustained by the dewale.
The plaintiff led evidence to show that notice was given to thejfafendanta requiring them to perform the services, and that theyhave failed to do so, and he produced an extract from the ServiceTenures Commissioners’ register showing the amount at which thevalue of the services that the defendants were liable to perform hasbeen assessed by the Service Tenures Commissioners, and closed inscase. The Commissioner, relying on the decision in case No. 1,755of the Court of Bequests of Kandy, refused practically to be guidedby the Service Tenures Commissioners’ assessment in estimatingthe amount that the plaintiff was entitled to as damages. Whatwas held in that case was that the amount entered in a register aspayable by a tenant was not conclusive, but that the overlord mightprove far more. There is no doubt as to that, and it may also bethat if required by the Court the proprietor should prove the natureof the services and the damage actually – sustained by him, but thequestion is, What effect is to be given to sections 12 and 25 of “ TheService Tenures Ordinance, 1870 ”? The latter section providesin unmistakable terms that a proprietor may sue the holder of aparaveni panguwa who has not commuted and who has failed torender the service defined in the register, and the Court in assessingthe damage may award, not only the sum for which the services havebeen assessed by the Commissioners for the purpose of perpetualcommutation, but such further sum as; it may consider fair andreasonable to cover the actual damage sustained by the proprietorthrough the default of the nilakaraya. If these words ' meananything, they mean that it is quite competent to the Court to allowitself to be guided entirely by the assessment of the Commissionersif the proprietor does not prove that he is entitled to a larger sum.At the same time it is clear that the Court may at its discretion callupon the proprietor to prove the actual damage sustained by him,and refuse to be guided by the register. In the present case I seeno reason why the Court should not have allowed itself to be guidedby the register. When the plaintiff put the extract from theregister in evidence, he made out a primd facie case for the summentioned in that extract, and in the absence of evidence for thedefence showing that that amount was excessive, I think that theCourt should have given the plaintiff judgment for it. On thequestion of jurisdiction no evidence has been led, and I understoodfrom counsel at the argument of this appeal that the services werenot to be performed at places outside the jurisdiction of the Court.
set aside the judgment appealed from and enter judgment forihe plaintiff for Bs. 90 and costs.
YATAWARA DISAWA v. LEKAMALAGE et al