064-NLR-NLR-V-13-BABAPPU-v.-DON-ANDRIS-et-al.pdf
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Present: Mr. Justice Middleton and Mr. Justice Wood Benton. July22,1910BABAPPU v. DON ANDRIS et alD. C.t Matwra, 4,728,
Possession and cultivationof chenaland for twenty years—Possessor
acquires no right under s.8 of OrdinanceNo.12of 1840—
Ordinance No. 12 of 1840, ss. 6 and 8—Ordinance No. 9 of 1841, s. 2.
A person who possesses and cultivates chena (jungle) land for aperiod under thirty years does not acquire any right under section8 of Ordinance No. 12 of 1840. The effect of section 2 of OrdinanceNo. 9 of 1841 is to exclude the application of section 8 of OrdinanceNo. 12 of 1840 to any land referred to in section 6 of that Ordinance.
Middleton J.—The privilegeunder section 8 ofOrdinance No. 12
of 1840 was reserved for those usurping cultivated cinnamon orperhaps paddy lands forming a part of the Crown domain, thoughnot perhaps quite apparently. I think, therefore, that section 8will not apply to any lands of the description set out in section 6.if there is clear evidence before the Court that they are lands derivedby the parties or their predecessors in title from forest, chena, waste,or uncultivated lands of theCrown. If the periodofprescription
of thirty years against the Crown has elapsed, they will, of course,fall into the category of private lands, andcanbedealt with
without reference to section 8.
facts are fully set out in the judgment of Wood Renton J.
Sampayo, K.G., for the appellant, plaintiff.
H. A. Jayewardene, for the respondents, defendants.
Cur. adv. vvlt.
July 22, 1910. Middleton J.—This was an action for declaration of title to a piece of landpurchased by the plaintiff from the Crown, and for which thedefendants, set up a title their fathers derived from Don Bastian,who is said to have purchased on bill of sale in 1830 and to haveplanted the land with citronella thirty years ago. The DistrictJudge found that the land was jungle or chena and probablyCrown property, that the planting of citronella took place abouttwenty years ago as alleged by the defendants, and that at the dateof the sale to the plaintiff in 1907 by the Crown the defendants hadacquired a statutory right under section 8 of Ordinance No. 12 of1840, and dismissed the plaintiff’s action. Of the three pointsraised by Mr. de Sampayo, we only called upon the respondents’
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July 22,1910 counsel to meet his last point, and I agree with my brother WoodMmouraoN Benton, whose judgment I have had the advantage of perusing, thatJ-there is no obligation to put forward a claim under section 8 at aqy
Babappu v. given time, and that the failure to plead the statutory interest onlyDon Andrin affects the question of its bona fides when actually raised.
The important question raised by Mr. de Sampayo was whethersection 2 of Ordinance No. 9 of 1841 did not clearly exempt allforest, chena, and uncultivated lands as described in section 6 fromthe statutory indulgence conferred by section 6. 1 have carefullyread through the memoranda and documents obtained by mybrother from the Colonial Office, and they strongly confirm theopinion I had already formed from a study of the Ordinance, thatit was not intended that any benefit should be obtained from theusurpation of lands which could not or ought not to be mistakenfor private property. The wording of section 1 of Ordinance No. 12of 1840 is, in my opinion, singularly infelicitous. The summarydelivery up of possession of Crown land is to be ordered when it isproved to the satisfaction of the District Court (1) that the landwas taken possession of by a party or parties without any probableclaim or pretence of title; (2) and “ that such party or parties hathor have not cultivated, planted, or otherwise improved and helduninterrupted possession of such land for a period of five years orupwards.” According to this wording the order is to go, whetherthe alleged usurper has had possession for five years or not- This,I think, was hardly the intention of the English Law Officers of theCrown, whatever might have been the views of the local Governmentof the day. The section has no doubt been construed as meaningthat if five years’ uninterrupted possession by the alleged usurperwere proved, the summary order of ejectment provided for wouldnot be allowed to issue. The Crown land indicated in the Ordinance,I think, was in those days mostly cinnamon lands, which weresubject to encroachments by native squatters. Forest, waste,chena, and unoccupied land was' at the same time declared bysection 6 to be the property of the Crown; the theory of forest landsbeing so, having been derived from the Sinhalese and Kandyandynasties, and such theory being well implanted in the minds of thenative population. Section 6, however, embraces a great deal
more than forest lands properly, so called, and in fact makes all
«
unoccupied and waste lands the property of the Crown. On thisbasis, i.e., from the popular impression that forest lands were theproperty of the Crown, it was no doubt considered by the Govern-ment of the day that such lands, together with others embracedin section 6, might be particularly exempted froin the statutoryindulgence under section 8 applicable to lands in or presentlysusceptible of cultivation. Such lands as forest lands were Crownlands in popular estimation, and the others described in section 6had been declared to be so by legislative enactment; ergo, no one
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was to suppose that if he usurped forest, waste, or unoccupied July 22,1910lands, he was to obtain the privileges under section 8 of the Ordi-nance. That privilege was reserved for those usurping cultivated J.cinnamon or perhaps paddy lands forming a part of the Crown Baboppuv.domain, though not perhaps quite apparently. I think, therefore, Don Andristhat section 8 will not apply to any lands of the description set outin section 6, if there is clear evidence before the Court that theyare lands derived by the parties or their predecessors in title fromforest, chena, waste, or uncultivated lands of the Crown. If theperiod of prescription of thirty years against the Crown has elapsed,they will, of course, fall into the category of private lands, and canbe dealt with without reference to section 8* I agree to the orderproposed by my brother Wood Benton.
Wood Benton J.—
The plaintiff-appellant claims a declaration of title to the landdescribed in the plaint by virtue of the fact that he purchased itfrom the Crown in 1907; the defendants-respondents deny theappellant’s title, and allege that they acquired the land from theirfather, who derived title from one Don Bastian. Don Bastianpurchased on bill of sale 447 of 1830. The respondents allege thathe planted the land with citronella thirty years ago, and that theyhave been in possession ever since. The learned District Judgeupheld the latter contention in so far as the facts of planting andpossession are concerned. But he says that the planting took placeabout twenty years ago, and that consequently the respondents'possession must be taker to have been of about twenty years'standing. He goes on to hold that before that date the landwas jungle (chena), occasionally cleared, and probably Crownproperty, although the respondents had a deed for it. On thesefacts and findings the District Judge adopts the view that, at thedate of the sale by the Crown to the appellant in 1907, the respond-ents had, by virtue of the provisions of section 8 of Ordinance No* 12of 1840, a statutory right, either to a grant of the land from Govern-ment on payment of half the improved value, or, if Governmentrequired the land for public purposes, to a right to retain possessionof it till they were compensated for it. In the present case, Govern-ment has not required the land for public purposes. We are,therefore, concerned only with the former of these alternatives. Itappears from the evidence that the first defendant-respondent infact went to the sale and objected to it; but He states that he wasasked at the 6pot if his name was Dasen, that he said it was not, andthat he was then informed that it was not his land that was beingdealt with. Dasen was in fact the claimant of the land at the sale.The first defendant-respondent added that the Settlement Officerhad not told him that he could take the land for Bs. 10 an acre, and
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July 22,1910 s aid that he was a little deaf. Mr. Fox, the Chief Assistant Settle -Woos ment Officer, who conducted the sale, stated in his evidence that the
Renton J. “ claimant ” had refused to buy it at Bis- 10 an acre, and that he had
Babappuv. produced nothing in support of his claim. We were asked by Mr.
Den Andris Sampayo to hold that the “ claimant ” here referred to was the firstdefendant-respondent himself. I do not think we are entitled todo so, and the learned District Judge finds that the first defendant-respondent is deaf, and that he probably did not hear the offer ofthe land at a low price, even if it was in fact made to him at the sale.He held that the land was not at the disposal of the Crown in 1907,and accordingly dismissed the plaintiff’s action with costs. Threepoints were urged by Mr. Sampayo in support of the appeal: (1)That a private party must claim the benefit of section 8 of OrdinanceNo. 12 of 1840 at the time when he has acquired a right to do so,that is to say, at any time between ten and thirty years of hispossession; (2) that in any event he should set up his statutoryinterest in the pleadings, which the respondents in the present casehave not done; and (3) that, even if both these points failed, theprovisions of section 2 of Ordinance No. 9 of 1841 precluded therespondents from claiming any interest in the land here in disputeunder section 8 of Ordinance No- 12 of 1840. In my opinion, thefirst and second of these points are bad. I do not think that thereis anything either in section 8 or in any of the other provisionsof Ordinance No. 12 of 1840 to compel the claimant to assert hisclaim to a grant of the land on payment of half the improved value.Section 8 entitles him to put forward such a claim, but nowhererequires him to do so at any given point of time. We were referredby Mr. Sampayo to a decision of my own {Perera v. Fernando *), butthat case can find no application here. It merely decides that thestatutory interest created by section 8 of Ordinance No. 12 of 1840is not an unfettered interest, and that it is subject to the conditionthat the claimant should be ready and willing to accept the grantand to pay the prescribed compensation to Government' when he isdirectly challenged to do so- Here, on the evidence and on thefindings of the District Judge, the first defendant-respondent wasprobably unaware that his land was being sold. He did not hearthe offer of it said to have been made to him by the SettlementOfficer. In my opinion there is nothing in the case of Perera v.Fernando 1 which can either bind or greatly assist us here. Thefailure of the respondents to plead their, statutory interest is a pointwhich, I think, can only bear on the bona fides of the plea when it isactually raised. Mr. Sampayo’s last objection, however, is a moreserious one, and indeed, raises an issue of far-reaching importance.Section 2 of Ordinance No. 9 of 1841 is in the following terms:—
‘ ‘ None of the provisions contained in the eighth clause, nor the.provisions touching prescription contained in the first clause of the
’ (1906) 2 A. C. B. 112.
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said Ordinance No. 12 of 1840, shall extend to any land referred 3<dy 22,1910to in the sixth clause thereof, nor to any public road, street, or wOODhighway, nor to any land known or held as toonhawul land.” Renton J.
This seotion is a substantial reproduction of section 9 of Ordinance Babappuv.No. 12 of 1840, which it repeals. That section is as follows:— . Andns
“ Provided always that nothing in the preceding or in the firstclause of the Ordinance contained shall extend to any land referredto in the sixth clause of this Ordinance, nor to any public road,street, or highway, nor to any land known or held as toonhawulland; and provided also that all judgments, orders, and decreesheretofore given or pronounced in any action, suit, or proceedingshall be conclusive, and bind the parties in such and the same wayas if this Ordinance had not been passed.”
We are dealing here with enactments which may fairly bedescribed as ancient statutes; and while I think we are bound bya series of decisions applicable alike to Imperial (Julius v. Bishopof Oxford *), Indian {Administrator-General of Bengal v. Prem LaiMriUich *), and Colonial (Crates, Stat. Law, p. 123) Acts, to excludefrom consideration the proceedings of the Legislative Council itselfin regard to them, we are entitled by the rules in Heydon’s case 3and by many later authorities (Crates, ad. loc. cit., pp. 120, 122)to look “ not merely to the words of an Act of Parliament, but tothe intent of the Legislature, to be collected from the cause andnecessity of the Act being made, from a comparison of its severalparts, and from foreign, meaning extraneous, circumstances so faras they can justly be considered to throw light upon the subject ”
{Wear River Commrs. v. Adamson *). Among such “ foreign ” or" extraneous ” circumstances the public history of the time whenthe Act {Crates 120) was passed is included, and we are not requiredto be oblivious of the history of the legislation itself (Holme v. Guy s),always excluding its history as disclosed by debates in Parliament(Miliar v. Taylor,* A.-G. v. Bittern,1 R. v. West Riding C. C.#).
Acting on these rules, I propose now to refer to certain officialdocuments which, in my opinion, come within them, and to whichI have obtained access through the Colonial Secretary’s Office.
It would seem (see a valuable note dated November 8, 1907, byMr. Cumberland, on Ordinance No. 12 of 1840) that while, in strictlaw, waste and uncultivated land, whether forest or chena, wasalways regarded as the property of the Crown, the theory of the law,though never abandoned, was not strictly pressed to its logicalconclusions. Thus, claims to “ appurtenances ” were recognizedboth in Kandyan and in British times. Again, both under Kandyan
> (1880) S A. C. 214-(1817)5 OK D. 901
(1898) L. B. 22 Indian App. 118«(1769)4 Burr 3302
3 (1684) 3 Co. Bep. 87(1863)2 H. <k C. 621
* (1877) 2 A. C. 743, 7633(1906)22 Times L. B. 83
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July 29,1910 and under British rule, certain indefinite rights of grazing andy?OOD getting firewdOd were from time to time allowed, and thoughRenton j. chenas were permitted to be made with .license on the land notSabappu v. appurtenant to a field and, therefore, doubtless Crown land, roughDan Andris land which was not appurtenant, was chenaed without permission.
The “ Kandyan Government,” says Mr. Cumberland, " thoughstrong at headquarters, was not strong enough to check its sub-ordinate officers in districts remote from Kandy,* except perhapsspasmodically, and the rights of the Crown doubtless were notenforced by indolent or corrupt chiefs, while a similar laxityoccurred in early British times, partly from the same causes andpartly from «l*e fact that waste land was then practically of novalue. When (however) the price of land was raised from 5 per cent,to 20 per cent, an acre in the thirties, and a considerable demandfor land grew up, the authorities awoke at last to the necessity forenforcing the rights of the Crown more strictly.”
The first measure dealing with the subject was introduced in theSession of 1889-40, and ultimately became Ordinance No. 5 of 1840.Beciting that “ divers persons, without any probable claim or pre-tence of title, have taken possession of lands in this Colony belongingto ” the. Crown, it proceeded to make provision for the prevention ofsuch encroachments. The District Court was empowered on infor-mation supported by affidavits, and after summary inquiry, tomake orders for the delivery up of possession of lands entered uponby private persons “ without probable claim or pretence of. title ”(section 2). Any person, however, against whom such an order mightbe made was empowered to proceed by the ordinary course of lawfor the recc'” ry of possession of the lands; and in case he should beable to establish his title, might obtain reasonable compensation forany damage that he might have sustained (section 2). On dismissalof an information under section 1, the Government might beordered to pay costs (section 3). ” All forest, waste, unoccupied,or uncultivated lands ” were to be presumed to be the property ofthe Crown until the contrary should be proved; all chenas and“ other lands which can be only cultivated after intervals of severalyears ” were to be deemed to be the property of the Crown generallyand in the Kandyan Province,. except upon proof of a sannas orgrant, ” together with satisfactory evidence as to the limits andboundaries thereof, or of such customary taxes, dues, or serviceshaving been rendered within twenty years for the 6ame as havebeen rendered within such period for -similar lands being the propertyof private proprietors in the same districts ” .(section 5). Provisionwas made for the grant of certificates of non-claim (section 6).Section 7 was in these terms:—“ "Whenever any person shall have,without any grant or title from Government, taken possession ofand cultivated, planted, or otherwise improved any land belongingto Government, and shall have held uninterrupted possession thereof
for ten years, such person shall be entitled to a grant from19M
Government of 6uch land, on payment by him or her of half the woonimproved value of the said land, unless Government shall require Rbntoh J.the same for public .purposes, or for the use of Her Majesty, her Babappu v.heirs and successors, when such person shall be liable only to be DonAndriaejected from such land on being paid by Government the valueof the half of the improved value thereof. Provided always thatnothing herein contained shall extend to any land referred to in thefifth clause of this Ordinance/’
Ordinance No. 5 of 1840 was forwarded to the Secretary of Statewith despatch No. 31 of February 10, 1840. In that despatch theGovernor explains the object of the reference in section 7 to theacquisition of lands to the use of Her Majesty, and the paymentof compensation for lands so acquired. “ There were in many partsof the Government cinnamon plantations small spots of landoccupied and cultivated by persons who had no title, but who hadby sufferance been more than ten years in unmolested possession.
The sale of the cinnamon plantations ordered by Her Majesty’sGovernment must in consequence be greatly injured, if the partiesin question were not removed in the first instance; and further, theabsence of such a power would hold out to parties an actual induce-ment to take possession of the most central parts of the Crownland:; hereafter, as being of course the most valuable.”
Section 7 was amended accordingly. The Law Officers of theCrown in England, however—Sir John, afterwards Lord, Campbell,
A.-G., and Sir Thomas Wilde, S.-G., afterwards Lord Truro—towhom Ordinance No. 5 of 1840 was referred, in a letter to theSecretary of State, dated June 8, 1840, stated their opinion thatwhile in the case of a recent encroachment upon the property of theCrown the summary proceedings authorized by sction 1 might bevery necessary and proper, where there had been a quiet enjoymentfor any considerable period the title to the land ought to be tried bythe ordinary process and rules of law.
We think,” said the Law Officers, “ that the first clause iswholly inconsistent with the principle which ought to regulate thelaw of real property under every form of Government. If there hadbeen a limitation as to the period within which the party complainedof had entered illegally on land belonging to the Crown, the proceed-ings to eject him in a summary manner might be justified andmight be salutary; but as the clause is framed, when there has beenan undisputed possession for a century, a party may be turnedout of possession on the allegation that the original entry waswithout probable claim or pretence of title, thus giving no effectwhatever to prescription.”
Ordinance No. 5 of 1840 was accordingly disallowed. But theSecretary of State (despatch No. 98 of June 15, 1840), in intimatingthis" disallowance to the Government of Ceylon, 6aid that should the22-
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Jvty 22,1910 Legislative Council re-enact the law with the amendment suggestedWoOD by the Law Officers of the Crown, there would be no objection to itsRhntonJ. confirmation. Ordinance No. 12 of 1840 was then passed. In itsBabappuv. original form it fixed at thirty years the period of uninterruptedDonfAndris possession that would oust the summary procedure sanctioned bysection 1, and at “ not les6 than ten nor more than thirty years ” theperiod of such possession as would give rise to the statutory interestcreated by section 7 of Ordinance No. 5 of 1840 (Ordinance No. 12of 1840, sections 1 and 8). It re-enacted in substance in the form ofa separate section (section 9) the proviso to section 7 of OrdinanceNo. 5 of 1840; and it provided (section 5). that all cinnamon kindswhich should have been uninterruptedly possessed by Governmentfor a period of thirty years and upwards should be deemed to be theproperty of the Crown.
Ordinance No. 12 of 1840 was forwarded to the Secretary of Stateunder cover of despatch No. 183 of December 9, 1840. In thatdespatch the Governor pointed out that it had been necessaryto amend section 7 of Ordinance No. 5 of 1840 in consequence ofthe modification of section 1. He also explained as follows theprovisions of section 5 of Ordinance No. 12 of 1840 as regards thecinnamon lands: —1 ‘ In the course of the survey of the Governmentcinnamon plantations, which has been for some time in progress,in order to their sale as directed by Her Majesty’s Government,various claims have been from time to time set up to portions of theplantations, in some instances to portions lying in the very centreof them. In most cases the claimants found- their claims uponextracts from the Dutch thombos or land registers, showing that atsome distant period the lands in question belonged to their ancestors.It is, however, well known that the Dutch Government, at the timeof forming the cinnamon plantations, took these lands from thethen owners, and gave them either other lands in exchange or otheradequate compensation. The parties claiming have not, duringthe present century, in any manner possessed or derived any benefitfrom the lands, which have been uninterruptedly held by Govern-ment, whose possession has consisted in the undisputed right ofpeeling the cinnamon growing on them. While the cinnamonmonopoly lasted, and the privilege of peeling cinnamon was rigidlyconfined to the Government, a title founded on possession of sucha nature might- naturally be viewed with some suspicion, but YourLordship will observe that the monopoly has now ceased to exist forseveral years, and notwithstanding the Government has continuedto peel the cinnamon up to the present moment without any inter-ruption or objection from those claimants having been started.”Ordinance No. 12 of 1840 was in turn referred to the Law Officersin England (see despatch No. 93 of August 25, 1841), who reportedthat the period of thirty years or upwards of uninterrupted posses-sion. limited by section 1 as that after which a summary order for
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the delivery upof the possession of landmight not bemade,wasJuly 22,1910
*' unreasonablylong. ” It was reducedby Order inCouncil of
August 11, 1841, to five years.Renton J.
I have beenunable to find any official informationas towhyBabappuv.
Ordinance No.9 of 1841 was passed.But section2 ofthatDonAndri*
Ordinance clearly re-enacts the substance of section 9 of OrdinanceNo. 12 of 1840. I will consider in a little while the question whetherany raison d'etre for it can be found. It results from the foregoingsurvey of the history of the legislation with which we are concernedin the present case, (1) that the exclusion of forest, waste,unoccupied, or uncultivated and chena lands from the scope of thestatutory interest conferred by Ordinances Nos. 5 and 12 of 1840 onthe. occupiers and improvers of “ land belonging to Government *’formed part of the section (section 7 of Ordinance No. 5 of 1840)by which that interest was originally created, was re-enacted insubstance by section 9 of Ordinance No. 12 of 1840. and has beenreproduce—also without material alteration—by section 2 ofOrdinance No. 9 of 1841; and (2) that the substitution ofOrdinance No. 12 of 1840 for Ordinance No. 5 of i840, and theamendment of Ordinance No. 12 of 1840 by the Order in Councilof August 11, 1841, were due to objections, on the part of theimperial Government, first to the absence of any period ofuninterrupted possession which would protect the occupier fromsummary ejectment, and afterwards to that period being fixed atthirty years.
I would hold that the effect of section 2 of Ordinance No. 9 of 1841is to exclude the application of section 8 of Ordinance No. 12 of1840 ic any land referred to in section 6 of that Ordinance. Therecan be r»o doubt but that this is the strict and literal interpretationof the enactment in question, and I am not sure that its object in soproviding cannot be surmised. Section 1 of Ordinance No. Va of1840 confered on the Crown wide powers of resuming possession bya summary procedure, of lands of which private parties had takenpossession “ without probable cairn or pretence of title. ” Section8 embodies the common law principle of the right of retention oflands by a bona fide possessor in a special form applicable to landsbelonging to Government. Section 2 of Ordinance No. 9 of 18-11excludes from the scope of that remedy, as well as of the provisionas .to five years* uninterrupted possession in section 1, the landsreferred .to in section 6, which are of such a nature that a personentering upon them without grant or title from the Crown cannotbe said to be a bona fide possessor.
As regards other lands, the summary remedy by way ofinformation is applicable where .there has been less than five years'uninterrupted possession. Where .there has been five years’ butless than ten years’, uninterrupted possession, ejectment can beobtained only by ordinary process of law. Between ten years mi
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July 22,1910 thirty the occupier has the statutory interest created by section 8.
WoOD More than thirty years’ uninterrupted possession of an adverseRenton J. character will establish title by prescription against the Crown.Babappu v. It will be observed that the repealed section 9 of Ordinance No. 12Don Andris 0f 1840 provided that “ nothingin the first clause of this Ordi-
nance contained shall extend to any land referred to in the sixth.
TEe result, if that provision haft stood unamended, would have beento prevent the Crown from summarily recovering under section 1 landwhich is declared by section 6 to be presumptively its property, andon which there could not well be an unauthorized entry by a privateindividual otherwise than ** without probable claim or pretence oftitle. ” Section 2 of Ordinance No. 9 of 1841 prevents this result bylimiting the exclusion of section 1 from the lands referred to insection 6 to “ the provision touching prescription contained ” in theformer of these sections. The Crown, that is to say, is to be atliberty to exercise its summary powers under section 1 againstunauthorized possessors, “ without probable claim or pretence oftitle, ” of any land deemed to be its property under section 6, and insuch a case the possessor cannot defend himself by setting up a pleaof uninterrupted possession for five years or upwards. If this viewis correct, it. not only supplies us with a possible raison d'etre for theenactment of Ordinance No. 9 of 1841, but points to the conclusionthat section 2 of that Ordinance means what it. says. That conclusionis still further strengthened by the reference in section 2 to publicroads, streets, or highways which are vested in the Government onbehalf of the public, and in regard to which there could not readilybe any bona fide possession by private individuals. I .think that theinterpretation of section 2 of Ordinance No. 9 of 1841, pressed uponus by Mr. Hector Jayewardene, the respondents’ counsel, viz., thatit contemplates, in such a case as .the present, the condition of theland not at the date of the original occupancy, but. at the date ofsale, is excluded not only by the history of the enactment, but by itsterms and by the language of section 8.
In my opinion the respondents cannot claim any interest in the landhere in suit, if it was in fact laud at the disposal of the Crown at thetime when their occupancy of it began. The learned District Judgehas held that i.t was then, jungle land (chena). It was thereforeone of the classes of land which is presumptively Crown property.It appears to me, however, that the learned District Judge hasconsidered the case almost solely from the point of view of section 8of Ordinance No. 12 of 1840, which, in my opinion, confers no rightson .the respondents, if the land here in question falls under any of thecategories indicated in section 6. I think that the respondents arefairly entitled, therefore, to a reconsideration of, and .to a furtherinquiry into, and adjudication upon, the question as to whether ornot Don Bastian under his deed of 1830, and his successors in title,hav*e established title against the Crown by over thirty years’
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prescriptive possession. I would, therefore, propose to set aside thedecree of the District Court, declare that if the land here in suit fallsunder any of the categories indicated in section 6 of Ordinance No. 12of 1840, the respondents have no statutory interest therein undersection 8 of that Ordinance, and send the case back to .the DistrictCourt for further inquiry into, and adjudication upon, the questionof prescription. The appellant is entitled to the costs of the appeal,but all costs of the original and also of the further inquiry shouldbe, I think, left to the discretion of the District Judge. If therespondents fail to establish title by prescription, the case must bedisposed of on the footing that the respondents' have no statutoryinterest under section 8 of Ordinance No. 12 of 1840.
We have been invited by the respondents’ counsel to reserve theirright to reuse, at the further inquiry in the District Court, thequestion whether in respect of the long cultivation * of the land iusuit by their predecessors in title they have any claim to compen-sation at common law. Mr. Sampayo does not object and we allowthis point to be reused accordingly, of course without expressingany opinion as to whether it is maintainable.
The construction that we sure placing in this case on section 2 ofOrdinance No. 9 of 1841 will, I fear, revolutionize for the future thepractice that has grown up under Ordinance No. 12 of 1840, of acknow-ledging in cases like the present a statutory interest under section 8of that Ordinance as a matter of strict legal right. That, however,cannot be helped. The issue has now been definitely raised,apparently for the first time, so far as the Courts of Law are con-cerned, and we have no option to do otherwise than determine itjudicially, whether our view of the enactments involved comes intoconflict with the hitherto received interpretation of them or not.
July 22,1910
WoodRenton J.
Babappu v.Don Andris
Sent back.