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to rajakariya, or any public service to the Crown, or to a superior,
Db Sampayo could not be disposed of either by gift, sale, or bequest to a vihareJ* or dewale without Hie sanction of the king, or the superior to whomAppuhamy the service was due. ” This passage is very important. Here para-v. Menike veni nilakarayas are included in the class of persons who have " ‘ theabsolute possession of and right to ” landed properly, and Icannot imagine that it would have been necessary to prohibit raja-kariya land from being put ~m mortmain without a license unlessthe holder was considered to be the owner. In this connection Imay refer to Leana Aratchy v. Mukelamea.1 There the Crownclaimed the land in dispute adversely to both the parties to the action,on the ground that land within a gabadagama or royal village be-longed to the Crown as owner, and Phear C.J., in deciding against the .Crown, said:- “ But we are of opinion that this is not, as a generalrule, an incident of all gabadagamas, and we know of no principle of'Kandyan law which should lead us to hold that the relation of theCrown to the gabadagama is materially different from that of theprivate owner or lord to the nindagama. ” Here the obvious com-parison was between the paraveni nilakarayas of a gabadagama andthose of a nindagama, and the Court, which included Dias J., a Judgeof eminence and wide experience, impliedly stated it as an accept adproposition that the paraveni nilakaraya, and not the proprietor ofthe nindagama, was the owner of his holding.
The state of the law to be gathered from the above references is-made clearer by the Service Tenures Ordinance, No. 4 of 1870. Itis remarkable that nowhere in the Ordinance is the lord of a ninda-gama referred to directly or indirectly as the owner of the lands heldby the paraveni nilakarayas. On the other hand, section 24 declaresthat if services are not rendered or commuted dues paid by theparaveni nilakarayas for a period of ten years, the panguwa shall bedeemed free thereafter from any liability on the part of the nilaka-rayas to render services or pay commuted dues. It seems to mfeclear that in such a case the Ordinance intends that what was pre-viously qualified ownership shall become absolute ownership.Section 25 lays down the order in which the property of the nila-<?karaya may be sold in execution • for default of payment of damagesfor non-performance of services, and provides that the value ofservices shall be recovered in the last resort “ by a sale of the pangu. ”Here the pangu does not mean the possessory interest, becausethe same section enacts that the tenant shall not be ejected fornon-performance of service. The pangu is defined in the Ordi–nance itself as the “ allotment or share of land ”; there is, to my*mind, no meaning in providing for the sale of the pangu, unless thetenant is the owner of the allotment. A difficulty is no doubt created^by such cases as. Siripina v. Kiribanda Korala,3 but I confess I cannotquite understand the principle by which it was held in ‘.thosei (1878) 2 S. C. C. 2..2 (1878) 5 N. L. R. 826.
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oases that neither the proprietor of the nindagama nor the tenantcould gem or dig for minerals, without the consent of the other. TheCourt appears to have struck out a middle course, with regard togeffns and minerals in the absence of anything to be found in the lawrelating to agricultural land such as those belonging to a panguwa.In any case I do not think that this consent to gemming or miningreally affects the question of ownership of the land.
For the reasons I have above stated, 1 am of opinion that paraveninilakarayas are the owners of the lands comprised in the panguwa.This, however, is not a complete answer to the issue stated in thiscase, for there is the further question whether such land can be thesubject of a partition action under the Ordinance. The services areindivisible, and it would be an' anomalous thing to divide the landand yet to keep the services undivided. The analogy of land subjectto fidei commiasum does not apply, because in Babey Nona v. Silva,1which is the chief authority as regards the partition of fidei commie-sum land between the fiduciari, it has been held that the partitionwill bind the fidei commissarii when their interests accrue, and thatthe rights of the various sets of fidei commissarii will attach tothe portions allotted in severalty. I may say that that case decideda point as to which there had been great doubts, and the de-cision reaches the limit and should not, in my opinion, be extended tocases like lands subject to service, which are, primd facte, not withinthe purview of the Ordinance. I therefore agree that on this groundthe appeal should be dismissed with costs.
De SampayoJ.
Appuhamyv. Alenike
Appeal dismissed.