031-NLR-NLR-V-05-ATTORNEY-GENERAL-v.-WANDURAGOLA.pdf
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AJTORN KV-CKNERAL „. WANDURAGOLA.
D. Kvrunegala, 1,601.
Ordinance. Nu. 12 r,f 1840, s. <;—Chena landsCultivated lands—Forest—
Presumption as regards forest or chena lands—When rebuttedevidence—Survey—Tenement sheet.
$er Lawme, A.C.J.—A chena, according to Sir John d’Oyly, is hi(.h.jungle ground, in which the jungle has been cut and burnt for manure atintervale -of from five to fourteen years, for the purpose of cultivatingdry grain (suchashill paddy, kurakkan, &c.).androots (such as man-
noca. sweet potatoes, &c.), and other vegetables.
The periodical cutting of the jungle and sowing of the land with fine-
grain, %being hurtful to the soil and the villagers, cannot be said to lebringing the land into cultivation, and this seems to be one of the reasouswhy the l>gislature, by section 6 of the Ordinance Xo. 12 of 1840, declaredthat, chena lands should be deemed to be " forest or waste lands. "
The better the proof that the land in dispute between the Crown anda private -party is chena. the stronger is the presumption that it belongsto the Crown.
In the caseoflands situate within theKandyan Provinces, this
presumption is rebuttable only by proof of a grant by the Crown orby payment of tax to it.
It is not to be rebutted by proof such as that, more than a hundred yearnago, the "land was private property, and bail been chenaed lot sixty-years before the institution of the suit by the Crown.
If it had been a-chena for sixty years since 1840.the. Ordinance No. 12
of 1840 applies:-Ifit has ceased to be a chenaandis now a forest, then
too the. Ordinance applies.
The -presumption is. not confined only to cases instituted under
jeetion'l of the Ordinance, but arises generally.
The. deneinent sheet attached to a survey made by an officer of theSurveyor-General's- Department cannot be referred to in explanation ofthe survey, unless jt is properly proved. .
A
CTION rei vindicatio by ;the .C-rbwn instituted on 80th June,1898. The Attorney-Gen era], on behalf of the Crown,
alleged in his plaint that- the defendants in February, 1898,trespassed upon five contiguous allotments pf land forming theforest called Kekirigoda-mukulana, mined for plumbago in two ofthe said allotments (F and H), and removed 'ten' tons of plumbagotherefrom of the value of Rs. 2,500. He prayed that the forestmay be declared the property of the Crown, that defendants beejeete.d therefrom, and that they be condemned to pay Rs. 2,500 asdamages,,&c.
The first defendant denied the trespass, but admited that inFebruary, 1898, he took on lease lots G and H from one Mudali-hami, who claimed to be the owner of them, dug a pit on lot H,and removed ten tons of plumbago, but that he desisted fromworking the. pit after the Crown asserted title to it.
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Tiie second defendant denied the title of the Crown and averredthat, as lessee under certain persons, he held possession of acertain portion of the land described in the plaint and had beenworking a pit on lot H since April, 1898.
It appeared in evidence that she land in dispute consisted of51 acres, and was bounded on the north and east by villages, andon the south and west by private properties, that in a portion ofthe land adjoining the private properties in the west severalplumbago pits had been opened by different persons; and that thepit from which the ten tons mentioned in the plaint were removedwas one of these pits.
As regards the condition of the land, the District Judge (Mr. S.Haughton) found as follows: —
“ Now, what kind of land exactly are we dealing with in thepresent case? There appears to be no good reason for questioningthe evidence either of the Forest Officers or of the Ratemahatmayas,Xorala and Araehchi, who have given evidence for the plaintiff,and having inspected the land myself on the 16th ultimo incompany with Mr. Hansard and the Chief Clerk, Court Mudaliyar,the headman, the defendants, the plaintiffs, surveyor, and others,the result of my own inspection corroborates their evidence. Theland is undoubtedly what would be called forest land in ordinarylanguage; it is not mukalana in the sense of heavily timberedforest land, the timber on which might be of forest value, nordoes it, indeed, contain even moderately heavy timber, but itcontains thick and high timber of a decidedly poor descriptionnot worth more, Mr. Hansard thought, than from Its. 10 to Rs. 15an acre; these remarks refer to the large 40-acre lot (F), thegrowth of timber on lot G, H, I, J, being lower, and portions ofthese latter lots on the north and west of the entire block of fifty-one acres having been evidently cleared within comparativelyrecent years. These recently cleared portions are undoubtedlythose which were cleared by the villagers in 1883, who were suedin District Court case No. 21,631, and for felling timber on whichin 1893 other villagers were convicted in the Police Court on theirown plea of guilty. As I have said, I accept the evidence of theForest Officers as to the age and nature generally of the timber onthe land; the land shown on lot F and the eastern portions oflots G and J has either never been cleared at all, or else it musthave been cleared so long ago as to have become, the wildernesswhich it is, and thus reverted to the Crown. The timber is poor,though thick and tall, and the soil, which is sandy! is so poor thatthe comparative highness of the> timber on it may be quiteconsistent with very great age. ”
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,1901. . As regards the chena clearings attempted to be proved by theJuly 8,u, defendants; the' District Judge was of opinion that the land hadandi-i. n{jj. been cleared in recent times except in the plot H, where theplumbago pits had been opened.
As regards the title deeds of the lessors produced by thedefendants, the District Judge found that the indefinite metes andbounds mentioned in them did not sufficiently locate the lands asfalling within, the land in dispute, and that therefore the deeds inquestion cannot be taken as to any extent proving title againstthe presumption in favour of the Crown. ’ ’
He entered judgment for plaintiff for the land and gave'Bs. 1,250 as damages.
Defendants appealed, as also the Attorney-General on thequestion of damages only.
Rudra, for second defendant, appellant.—The onus is on plaintiffto prove that the land is forest, but he has failed to do so. The landwas surveyed at the instance of the Crown in 1898', and the tenementsheet referring to the survey, though not produced in the Courti below, is now before the Court in appeal, and it shows that F had“ jungle growth over 40 years old; ” G " jungle growth about 15years old; ” H “ contains plumbago,” and no mention is made ofjungle growth at all; I and J “ jungle growth about 15 years old.”'Jungle is not “ forest ” under section 6 of Ordinance No. 12 of 1840.The oral evidence led for the Crown as to there being forest in theland in dispute must be rejected in view of the statements in thetenement sheet. The 6th section of the Ordinance must not betaken as the general law of the Island. The presumption thereinenacted in favour of the Crown does not arise in all cases, but onlyin cases instituted under the 1st section.’ In Appurala v. Dawsonrknown as ” the Ivies’ Estate Case ” (3 S. O. R. 1), this point doesnot appear to have been considered, but in Attorney-General v.Samarasinghe, 1 Browne 220, it was raised and decided that thepresumption was not limited to suits under the Ordinance of 1840.[Lawrie, A.C.J.—*-It is now too late to raise this point. Thereare many decisions against you.] Yes, hut the point should bere-considered. [Counsel argued on the merits also.]
Seneviratna, for first defendant, appellant, argued on the facts ofthe case.
Rdmandthan, S.-G. for plaintiff, respondent.—The tenementsheet is inadmissible in evidence. It was not proved in the Courtbelow. The only evidence in the case as regards the conditionof the land is that given by the witnesses call 1 on either side'.The District Judge has found in favour .of the itiff’s witnesses
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that all the allotments except H contained forest. Fofest is jungle,which is a Sanskrit term adopted in the Hindustani language.The Century Dictionary, recently published by the' Times, givesthe meaning of jungle as a dense growth of rank and tangledvegetation, large and small, often nearly impenetrable, 6uch as ischaracteristic of some parts of India.This is the meaning of
forest also.
As regards the applicability of the presumption that forest landis Crown land—[Lawbie, A.C.J.—We shall not trouble you onthat point.] Counsel argued at length on the facts of the case,and left the question of damages in the hands of their lordships.
JCur. adv. vult.
15th July, 1901. Lowrie, A.C.J.—
The Attorney-General, on behalf of the Crown claimed 51 acresof land called Kekirigoda-mukalana, described on the surveyplan A.
In appeal, counsel for the defendants objected to this surveybeing received in evidence. As the case was unintelligible with-out it, it is necessary to dispose of that objection at once.
The survey is a tracing of a preliminary plan of six allotmentsof land surveyed by “ C. C. Wijetunga, Itinerating Surveyor,” inMay, 1898. On it is written ” True Extract. Surveyor-General’sOffice, Colombo, 10th August, 1898. Alfred E. Wackrill, ActingAssistant Surveyor-General. P. D. Warren, Acting Surveyor-Gen-eral. 8th October, 1898. ” As it was signed by the Acting AssistantSurveyor-General and also by the Acting Surveyor-General,. It ispresumed to have been made by his authority and to be accurateand is admissible in evidence. (See Ordinance No. 6 of 1864 andthe Evidence Ordinance of 1895.)
Counsel for the defendants contended that the survey wasincomplete without the tenement sheet or “ description ” of thelots by the surveyor, a copy of which was furnished by theSurveyor-General to the defendants’ proctor and is filed at page 409.
I am not sure whether that be a “ public document,” as definedin section 74 of the Evidence Ordinance; it is not signed by thePublic Officer who had the custody of it, as is required by section76. I cannot hold it as properly in evidence, though both partiesreferred to it in appeal as explanatory of the survey. The sur-veyor ought to have been called to testify to the accuracy of thefacts stated in that description.
I understand that the plaintiff and the second defendant areagreed that though the survey divides the land into several lots,it was originally, and still is, one land. In the course of theargument in appeal I expressed my doubt whether the lot H was
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not a separate land. I was assured that it had been taken forgranted by both parties at the trial that all the land in the surveywas one land, and that H, G, F, &c., must be taken together.
The defendants’ case is that they were digging plumbago froma pit under a license granted by an Araehchi when they werecalled on by the Crown to desist, and were afterwards sued fordamages in this action. They maintain that the Crown is boundto prove its title to the land, that they are not obliged to say whatkind of land it is, and that the whole burden rests on the Crown.The Crown has undertaken the burden; it has undertaken toprove that this is a forest belonging to the Crown.
That proof is not that it .has been declared % forest under theForests Ordinance, No. 10 of 1885, nor that it has been proved tobe a land at the disposal of the Crown under the Waste LandsOrdinance (No. 1 of 1897), nor is there evidence that this foresthas ever been under the supervision of the Forest Officer of theProvince. Nor is there evidence that the Crown ever gave per-mits for the felling and removal of timber. One or two headmensay it is Grown land, because they have always believed it to beso, but there is no proof of possession or of acts of ownership bythe Officers of the Crown, except the prosecution of trespassers in1883 and 1893.
The Crown rests its case on proof that the land in 1898 was aforest, a land covered with trees, and the Solicitor-General con-tended that, if that be proved, there is presumption in favour ofthe Crown’s ownership, a presumption created (or perhaps statedto be the law) in the 6th section of Ordinance No. 12 of 1840.
Counsel for the second defendant raised a question, which hasoften been argued, that the 6th section of the Ordinance No. 12of 1840 was not a statement of general law, that the presumptionin favour of the Crown applied only in proceedings commencedunder the 1st section of the Ordinance. In many ordinary-actions of ejectment by the Crown the presumption has beenpleaded and applied. In my opinion the rules for special proce-dure of the Ordinance No. 12 of 1840 end with section 4. Th^remaining sections are of general application, they are not pre-ceded by the words “ for the purposes of this Ordinance ” whichprecede section 24 of Ordinance No. 1 of 1897.
On the evidence of Mr. Hansard and of Mr. Fyers, ForestOfficers, I hold that the land in question is a forest. I will quoteonly a. bit of Mr. Hansard's evidence: “ I started inspecting the“ land on the N.W. point, and went along the north boundary“ of lots G and F, taking the measurements of -tain large trees" on the boundary-and estimating the growth of vest-.
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“ N. and S. of the north boundary the land is chena from 15
to 20 years old for about two chains in length, that is, lot G. I“ then went along the rest of the northern boundary and then“ down the eastern boundary. The forest on the northern portion“ of lot F is from 50 to 60 years old, and that on the rest of it between
“ 80 and 100 years, in my opinionThe forest on the
“ eastern portion of J is about 50 years old, and on the western" portion 25 to 30 and 15 to 20 years old.
“ Lot I contains jungle from 15 to 20 years old. The northern“ portion of G contains forest about 40 years old, a small portion“ just on the boundary, as stated above, being about 15 years old,“ and the rest of the forest on the south of G is between 25 and
“ 30, as well as a small bit 15 to 20 yearsThere is a
“ bund on the western boundary of lot K, there are three timber" trees, large ones, growing on it, on lot K; adjoining the bund“ there are rushes, showing the site of a tank, and on the north-“ east and south of K is forest 40 years old and 80 to 100 years“ old respectively,” and so on.
Mr. Fvers said: ” When I inspected the land it contained jungle“ from 20 to 60 years old and upwards; on the western portion of
“ it the forestwas moreor lessthinhot F contains
“ dense forest over 60 years old. ”
This evidencesatisfies methat thelaudsurveyed is a forest.
In it are trees of various ages, and though the trees in some placesare thinner than in others, the whole land in the early part of1808 was an unoccupied forest..’
This land must be presumed to be the property of the Grown.That presumption may be rebutted, but it holds until the contrarybe proved. Mr.Rudra wasunwillingtoadmit that he called
the land a cliena, but in my opinion the second defendant andhis witnesses alleged and led evidence to prove that it was achena land appurtenant to a field which of old belonged to^Mudianse Mohottala, and which they alleged had been possessedas an appurtenant chena from time immemorial by the descendantsof Mohottala and those deriving title from them.
But would proof that it was a chena advantage the defendantand rebut the presumption? The Ordinance enacts that “ all“ chenas and other lands which can be only cultivated after“ intervals of several years shall, if the same be situate within the“ districts formerly comprised in the Kandyan Provinces (where-‘‘ no thombu registers have been heretofore established), be-“ deemed to belong to the Crown, and not to be the property of.” any private person claiming the sjime against the Grown except“ upon proof only by such person of a sannas or grant for the11-
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" same, together, with satisfactory evidence as to the limits or“ boundaries thereof, or of such customary taxes, dues, or services“ having been rendered within 20 years for the same as have been“ rendered ""ithin such period for similar lands being the property“ of a private proprietor in the same district.” This enactmentwith regard to chenas has, I think, now made a change in the law.In Kandyan times high lands were acknowledged as appurtenantof fields. Sir John d’Oyly said: ‘‘ Every field, with a few excep-tions, had attached to it a garden and a jungle ground called hena,which, as a matter of course, was inherited and transferred withit.”
And in another place Sir J. d’Oyly said: ” A chena land washigh jungle ground, in which the jungle was cut and burnt formanure, after intervals of from 5 to 14 years, for the purpose ofcultivating the paddy called el-vi and other fine grains as cotton,or sometimes roots and other vegetables. After two or at the mostthree crops it was abandoned till the jungle grew again.”
Many men of experience in this land have considered thisperiodical cutting of the jungle and sowing with fine grain hurt-ful to the soil and injurious to the interests of the villagers, whobecame less dependant than they should have been on the steadylabour of working their paddy fields.
Cayley, C.J., in a judgment in D. C., Kalutara, 20,650 (December6, 1873), reported in Grenier’s Reports, 1873, p. 142, held that chenacultivation was an injury to land and could not be called bring-ing land into cultivation.
From these and other considerations the Legislature in 1840thought it right to bring chenas under the . immediate control ofGovernment by declaring them to be the property of the Crown,and I am not sure that the 20 years spoken of as the time withinwhich services or taxes had been rendered did not refer to the20 years before the Ordinance came into operation, and theenactment may have been absolute that for the future all chenasshould be decreed forest or waste land within the meaning of the6th clause.
The meaning of this part of the 6th clause was considered bythe Full Court .in D. C., Kurunegala, 10,277. The District Judgesays that is unreported, but it has been reported both in Morgan’sDigest, p. 419, and in Ramanathan's Reports, 1843-1855, p. 25.
In the D. C., Batnapura, case reported in 1 8. C. C. 28, Phear,C.J., held that to bring .the land within the enactment it wasnecessary to show that it was chena or other land which in thesame sense as chena is incapable of being cultivated otherwisethan after intervals of several years.
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As held the proofs fall short of that, but Sir John Fheardoes not seem to have doubted that if it had been ohena land, theGth'section would have applied. In the case reported in 2 S. C. C.88, Phear, C.J.. held that land was not a chena within themeaning of section 6.
Counsel for the second defendant relied on Sir John Phear'sjudgment in D. C., Kalutara, 82,054, 2 8. C■ C. 139. I fail to seehow that case applies. He there interpreted the meaning of thewords “ unoccupied and uncultivated,” not “ chena,” and the landwas in the low-country, not in the-Kandyan Provinces.
In D. C., Ratnapura, 1,238, Cayley, C.J., recognized the right ofthe Crown to chena land, but drew a distinction between theright to the land and to the crops growing on it. In the Tangallacase reported in 5 S. C. 0. 195, Burnside, Q.J., held that the pre-sumption that chena land belonged to the Crown was a rebuttablepresumption, and that it had been rebutted by 60 years’ possessionand by proof that for upwards of 20 years the land had paid theusual tax to Government.
In the Ivies’ Estate Case, 3 S. C. Rep. 1 Burnside, C.J., andWithers, J., held that there was proof that the plaintiff’s pre-decessor in title paid 1/14 by way of tax for the chenas, whichwas primd facie evidence that the chenas belonged to privateparties.
So far as any of these decisions hold that proof that privateparties cultivated a land as chena is proof of private ownership,they seem to me to be contrary to the words of the Ordinance.
The better the proof that the land is chena, the stronger is thepresumption that it belongs to the Crown, and that presumptioncan be rebutted only by proof of a grant or by payment of tax.
Here there is no sannas or grant, no taxes for kurakkan on highlands as exacted in the North-Western Province.
I think it is probable that more than 100 years ago, MudianseMohottala lived on the land F, at a place where some stone-pillarsstill stand, but long ago he left that house and moved – to a housein Wetanga, where his descendant, the Registrar of Births, nowlives.
The part of the land marked K was formerly a tank, the bundof which is still visible. K is no longer a tank, the bund isbreached: at the south the surveyor shows, by two little arrowheads, how the water flows.
Mr. Hansard estimated the oldest trees to be about 100 years.From that I think it probable that when Mudianse Mohottalamoved to Wetanga the indigenous trees began to grow undis-turbed.
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Now continuing to rely on Mr. Hansard'6 evidence, I gatherthat on parts*'of the lanjl there is a pewer growth, on the north ofG 40 years old, on the south of G 30 or 25 years old, and on apart of the land a growth of about 15 or 20 years old.
The villagers of Wetanga, either the descendants of MudianseMohottala or others, in 1883, and again in 1893, it is well proved,out down the trees on a part of the land.
In 1883 the land was not cultivated in kurakkan, partly becausethe rain prevented the trees and branches being burnt, and alsobecause the cultivators were prosecuted and punished.
There was a later cultivation about five years ago, on a small6cale, and the cultivators were prosecuted and fined.
Has the presumption in favour of the Crown been rebutted byproof that more than 100 years ago this land was private property,
and by proof of chena cultivation for the succeeding 60 years ?
I think not.
When the Ordinance No. 12 of 1840 was passed, this was chenaland. I see no reason why the Ordinance did not apply to it, forit has not been shown that there was a grant, or that there hadbeen a payment of tax within 20 years of the passing of theOrdinance. If it- was a chena 60 years ago in 1840, if it remainstill now a chena, the Ordinance applies; if it has ceased to be achena and is now a forest, the Ordinance applies.
Th$ result to which I come is that the land in the survey isforest, the property of the Crown; that if it be a chena land it isequally the property of the Crown; and that the defendants mustyield *possession and must pay for the plumbago they have taken.
As to the question of damages, both the plaintiff and thedefendants have appealed. I think the District Judge has madea reasonable estimate, perhaps rather too favourable to the-defendants. I would not disturb the judgment.
Monoreiff, J.—
I also am of opinion that the Crown has proved that the landin dispute is forest. The attempt of the defendants to show thatit was private land has failed. Attempts were made to assertprivate rights in 1883 and 1893, but they were promptly sup-pressed.
I therefore agree to the order made by the Chief Justice.