109-NLR-NLR-V-24-APPUHAMY-v.-PETER-SINGHO.pdf
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Present : Jayewardene A.J.
APPUHAMY v. PETER SINGHO.
55—C. B. Rurunegala, 25,433.
Registration—Consolidation of two lands—Field and high land adjoiningthereto—Grantee sole owner of one land and owner of half shareof the other.
Two distinct lands, of one of which a person is sole ownerand of the other of which he is only entitled to one-half share,cannot be consolidated for purposes of registration without theconsent of the owner of the other half share.
Bug where a field and adjoining high land were treated in theearliest deed produced (P 1 of 1904) as one land, and it was only inrecent years the lands were treated as separate lands, the Courtheld that there was no consolidation of two distinct lands.
“ In the later deeds relied on by the defendant ' the lands havebeen treated as two separate lands, but that cannot affect thecorrectness of the description given in P 1."
Fernando v. Perera 1 considered.
T HE facts are set out in the judgment*
Samarawickreme, for defendant, appellant.
J. S. Jayawardene, for plaintiff, respondent.
March 28, 1923. Jayewardene A.J.—
In this action the plaintiff sued the defendant to be declaredentitled to a 5/48 share of a field called Rukgahakumbura and itsadjoining Kongahamulawatta, and- to the entirety of a strip on theeastern boundary of these two lands. He admits the defendant’sright to the rest of the high land. The defendant claims theentirety of the high land Kongahamulawatta. He makes noclaim to the field. The lands were surveyed for the purpose of thecase, and are shown in the plan at page 234 of the record. B 1 ismarked as the field Rukgahakumbura, A and B (the narrowstrip) as Kongahamulawatta. A 1 originally formed part of theKongahamulahena or watta. The defendant can make no claimto A 1, as the southern boundaiy of the land purchased by him isgiven as the Gansabhawa road, which separates A, from A 1. Thelearned Judge has given judgment in favour of the plaintiff asprayed for, with costs. The defendant appeals. It is commonground that the owners of lot A were Wijendra Naide and PunchiNaide. Wijendra Naide, by deed of gift No. 20,485 of December 30,
1988.
1 (1917) 20 N. L. R. 119.
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t8flp»1004, P1, gifted his half share to his daughter and her four children.
Jatawab-Tbe plaintiff Claims through some of them. Punohi Naide died
mnmleavingtwo children, Tikiri Appu Naide and Ban Naide, who
!appearsto have sold his one-fourth share to his brother. TOdri
AlS^SStfNude and Netti Naehire, by deed No. 14,410 of December
SHngke18, 1012, D 1, Bold the entirety of Jot A, calling it Rukgahamulla-
watta, to one Hapuwa, through whom the defendant claims. Thedefendant also purchased certain rights from one Themis Hamy,who derived title from the grantees of the deed of gift of 1004 (P 1).
The main contention of the defendant is based on the provisionsof theRegistration Ordinance of 1801. It will be seen, from
the facts stated above, that Netti Naehire, who was one of thegrantees under the deed of gift, P 1, conveyed a half share of thehigh land by D1 on January' 22, 1013. The defendant says thatthe registration of P 1 is invalid, as it included and described boththe field and the high land, which were two separate hinds, as oneland within certain specified boundaries. This amounted to aconsolidation of two distinct lands, of one of which the granteewas the sole owner (*.«., of the field), and another in which he wasonly entitled to a half share. Such consolidation is not possiblewithout the consent of the owner of the other half share' of thehigh land, of which there is no evidence, and, hence, the registrationof P 1 must be ignored, in view of the judgment of this Court inFernando v. Perera (supra). Before the principle laid down in thatcase can be applied, it must be shown that there were two or moreseparate lands which have been consolidatd and converted intoone corpus. Mr. Samarawickreme called the high land a chena,and 1 have no doubt it is chena land which in recent times hasbeen converted into a watta or garden. The first deed deedingwith these lands is P 1 of 1904, and there they are described as“ Rukgahakumbura of six pelas sowing extent and of the theretoadjoining Kongahamullawatta of two pelas kurakkan sowingextent,” and the boundaries given are ihe boundaries of the twolands treated as one land. In another deed, P 4 of 1913, in favourof Themis Hamy, from whom the defendant has purchased certainrights. (D 3 of 1916), the lands are described as: ** Rukgahakumbura… and its adjoining Kongahamulawatta. ” The same
description appears in P 5 of 1919. Now, these are lands in aKandyan district where chenas and high lands are considered asappurtenant to paddy fields. Sir John D’Oyly, in a passagereferred to by Lawrie A.C.J. in Attorney-General v. Wanduragala, 1has stated : ” Every field, with few exceptions, had attached toit a garden and a jungle ground called hena, which as a matterof course was inherited and transferred with it. ” See also Kiri-hami v. Fernando Appuhami. 2 There is no evidence to provethat until within very recent times the field and its appurtenant1 {1901) 6 N. L. B. 98.• {1879) 2 3. C. C. 88.
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chena or garden were treated as two distinct and separate lands. 1MS>The oldest deed produced, P 1, deals with them as forming one jAYbwa»-corpus, and this is in keeping with the Kandyan custom of treatingran
flhmag and gardens adjoining fields as appurtenances of those fields]
and a part and parcel of them. Jf this is the correct view, then
there has been no consolidation of two distinct lands in P 1, and Singho
tile grantee of P 1 was justified in treating Rukgahakumbura and
its adjoining Kongahamulawatta as one land, within one set of
boundaries. In the later deeds, relied on by the defendant, the
lands have been treated as two separate lands, but that cannot
affect the correctness of the description given in.P 1, On these
facts the case of Fernando v. Perera (supra) has no application to this
case. The deed of gift has therefore been duly registered, and the
title of the plaintiff is good. As regards the narrow strip, B,
I make no declaration in favour of the plaintiff, and leave thetitle to it to be decided in any subsequent action. The defendantdoes not claim B 1, an cannot claim A 1. The plaintiff will bedeclared entitled to 5/48 of lot A in the plan dated July 14, 1921,and filed of record. In other respects the judgment is affirmed,and the appeal is dismissed, with costs.
Appeal dismissed.