BANDARA et al, Appellants, and DINGIRI MENIKA et al., Respondent

103-NLR-NLR-V-44-BANDARA-et-al-Appellants-and-DINGIRI-MENIKA-et-al.-Respondent.pdf


Bandara and Dingiri Menika.
393
1943Present: Howard C.J. and Keuneman J.
BANDARA et al, Appellants, and DINGIRI MENIKAet al., Respondents.
240—D. C. Kegalla, 1,486.
Partition—Paraveni pangu—No services performed or dues paid for overten years—Land may be partitioned among the nilakarayas.
Land, which forms part of a paraveni pangu in a nindagama and inrespect of which no services have been performed nor dues paid to theoverlord for over a period of ten years, may be the subject of a partitionaction among the nilakarayas.
A
PPEAL from a judgment of the District Judge of Kegalla. Thefacts appear from the argument.
H. V. Perera, K.C. (with him Dodwell Gunawardana)., for the 3rd and4th defendants, appellants.—The plaintiffs seek to partition a land which,according to appellants, formed part of a paraveni pangu in a nindagama.The District Judge held that the land at the time of registration underthe- Service Tenures Ordinance (Cap. 323) belonged to the nindagama.The only question that arises for consideration on this appeal is whethernon-performance of services or non-payment of dues by the paraveninilakarayas for a period of over ten years would be sufficient to vest thedominium of the land in them by virtue of section 24 of, the ServiceTenures Ordinance. It is submitted that what is extinguished by lapseof, time is the right to services or commuted dues. The dominium isunchanged. The ninda lord, does not cease to be such unless there isouster and further adverse possession for a period of over ten years
394
HOWARD C.J.—Bandara and Dingiri Menika.
under the Prescription Ordinance—Naguda Marikar v. Mohammadu'.The rights of the itinda lord extend not merely to the services or duesbut also to the minerals and timber. As long as there is some vestige of aninda lord’s rights he remains an owner and therefore the land cannot bepartitioned—Dias v. CarlinahamyAppuhamy v. Menike Asmadale v.Weerasuriya.', Martin v- Hatana’.
L. A. Rajapakse (with him R. N. lllangakoon) for the plaintiffs, re-spondents.—In interpreting section 24 the scope of the Service TenuresOrdinance must be considered. A paraveni nilakaraya is defined as a“holder” subject to the performance of services. His position isanalogous to that of an emphyteutic tenant, who, in the Roman. Law,had the plena proprietas subject to the payment of a quit-rent. – Section24 first deals with the limitation of action in respect of services or duesand then goes on to deal with the total loss of the-right to claim per-formance of services or payment of dues. The cases cited for the appel-lant only decide that if the tenancy continues to exist no partition actioncan be brought. In Appuhamy v. Menike (supra) the three Judgesconstituting the Bench, came to one conclusion for different reasons.Whether such rights as claimed over minerals and timber existed at allin the time of the Sinhalese Kings is doubtful—Hayley: Laws andCustoms of the Sinhalese at p. 225. In this case there is no evidence ofperformance of services or payment of commuted dues for a period ofover fifty-five years. Ouster may be presumed in such circumstances—Tillekeratne v. B astian6; Ondiris v. Ondiris It is therefore submittedthat the dominium of the land is now vested in the nilakarayas andconsequently the land can be partitioned.
H. V. Perera, K.C., in reply.—Under section 24 only one obligation,viz., to perform services or pay dues, is taken away by lapse of time.The Ninda lord still remains the owner and the nilakarayas still remaintenants. The principle underlying the decision in. Appuhamy v. Menike(supra) is applicable to the present case.
Cur. adv. vult.
July 29, 1943. Howard C.J.—
This is an appeal by the third and fourth defendant^ from a decree of theDistrict Judge of Kegalla-holding that a partition action in respect of theland described in the schedule can be maintained by the plaintiffs whoclaimed by virtue of inheritance and possession. The appellantscontended that the land which was the subject-matter of the actionformed part of a paraveni pangu in a nindagama and as such could notbe the subject of a partition action. The learned Judge held that theland in question at the time of the registration' under the Service TenuresOrdinance (Cap. 323) did belong to the Nindagama but, as over teryears had elapsed since the performance of any services or the paymentof any dues to the overlord in respect of this land, the dominium in suchland had, by reason of the provisions of section 24 of the Ordinance,become vested in the nilakarayas.>
1 (1903) 7 N.L.R.91.■‘ (1905) 3 Bal. 51.
* (1919) 21 N. L. R. 112"* (1913) 16 K. L. R. 92,
3 (1917) 19 T: R. 361 F. B.* (191S) 21 N. L. R. 12.
» (1935) 14 C. L. Rec. 201.
395
HOWARD CJ.—Bandura and Dingiri Menika.
.ZZ,
The contention of Mr. Perera that the learned Judge came to a wrongdecision is based on the following grounds—
that a paraveni panguwa cannot be the subject of a partition ;
that it must be shown that neither services have been performed
nor dues paid in respect of all the lands included in the panguwaand not merely in respect of the lands the subject of the action;
that the burden of proof that no such services have been performed
nor dues paid rests on the plaintiffs;
that even if it is established that no services have been, rendered
and no dues paid for over ten years and no action brought there-for, section 24 of the Ordinance merely provides that theright to claim such services and dues is lost but does not conferon the nilakarayas dominium in the land.
Proposition (a) is not disputed. In fact it was so held in Jotihamy v.DingirihamyThis case was followed by the Full Bench in Appuhamy v.Menike' where it was held that persons* entitled to an undivided sharein a panguwa in a nindagama are not entitled to bring a suit for thepartition of the land. In his 'judgment in this case Ennis J. cited withapproval the case of Asmadale v. Weerasuriya3 where it was held that theobligation was indivisible. Also the case of Martin v. Hat ana ‘ whereit was held that the liability to pay commuted dues was also indivisible.After quoting the definition of “ ownership ” from 2 Maasdorp 31 ascomprising (1) the right of possession, (2) the right of usufruct and (3)the right of disposition, and that these three factors are all essential tothe idea of ownership, but need not all be present in equal degreeat one and the same time Ennis J. said that in,his opinion a paraveninilakaraya holds all the rights which, under Maarsdorp’s definition,constitute ownership, but he, nevertheless, does not possess the fullownership, in that the ninda lord holds a perpetual right to service, theobligation to perform which attaches to the land. Appuhamy v. Mehike{supra) was subsequently followed by Schneider A.J. and Loos A.J. in thecase of Dias v. Carlinahamyz who held that lands subject to service tenurescannot be sold or partitioned under the provisions of the Partition Ordi-nance, unless it may be in cases where the proprietor of the ninda-gama and the paraveni nilakaraya are all consenting parties to theproceedings. It will be observed that in neither Appuhamy v. Menike 'nor Dias v. Carlinahamy did any question arise as to the position createdwhen the panguwa, by reason of section 24 of the Service Tenures Ordi-nance, was free from any liability on the part of the nilakarayas to renderservices or pay commuted dues therefor.
With regard to propositions (b) and (c), due regard must be paid to thedecision in Asmadale v. Weerasuriya (supra), which was followed inMartin v. Hatana (supra), that the obligation of the tenants of a panguwa ofa nindagama to render services is in the nature of an indivisible obligation,and therefore the liability to pay commuted dues is also indivisible. The., whole amount may be recovered from one tenant. The payment, therefore,of the dues by one tenant in respect of the w.hole panguwa prevents
1 3 Bed 67.'' 3 3 Bal 51.
’• 19 Ar. L. B. 361.4 16 N. L. R. 92.
» 21 N. L. R. 112.
396
HOWARD C.J.—Bandara and Dingiri Menika.
forfeiture of the liinda proprietors’ rights against the other tenantsunder section 24 of the Service Tenures Ordinance, and it is also a barto the other tenants gaining prescriptive rights under section 3 of thePrescription Ordinance. So far as the evidence in this case goes, I agreewith the learned Judge that the plaintiffs have established that neitherservices were performed nor dues paid in respect of the land, the subjectof this action for a period of ten years. No evidence has been tenderedby the appellants that such services were performed or dues paid in respectof other lands of -the panguwa. In view of the fact that the plain-tiffs had proved that no services were performed nor dues paid inrespect of the land sought to be partitioned, I am of opinion that theburden of proof rested on the defendants to show that such, performanceswere made or dues paid in respect of other lands of the panguwa.
With respect to proposition (d), Mr. Perera contended that section 24did not create in the nilakaraya a dominium over the land free fromservices. Residual rights over minerals and timber, so he asserts,retain for the landlord the dominium over the land. It is, therefore,necessary to consider what these rights are. In Molligodde Unambuwa v.Puncha Weda1 it was held that a tenant of a paraveni land has not theright to dig for his own use for plumbago to be found in the panguwa,or do anything permanently to diminish its value ; nor has the proprietora right to lease the mine to third parties. The judgment in this casealso referred to an unreported case, Avissawella No. 5,303, in which theSupreme Court decided that, in the absence of agreement authorising atenant to appropriate or-to cut down trees growing on the land, he hadno right to do so. The judgment also stated as follows :—“ It is true thata paraveni tenant is a proprietor in that he cannot be ejected solong as he performs services.” This seems to imply that the only clogon the full ownership of the nilakaraya is the obligation to performservices. Relief from such obligation Would, therefore, confer fullownership. This view was also apparently taken by Ennis J. in Appu-hamy v. Menike (supra) in the following passage : —
“ These cases seem to show that the ninda lord and the nilakarayawere owners in common of the mineral rights,' but I am unable to seethat the common ownership of such a right affects the question beforeus, as there would be no difficulty in limiting mineral rights to the several,shares after partition.”
■Further on in the judgment the following passage occurs : —
“ The present tenure of a paraveni nilakaraya could well be describedin much the same terms. It seems to me that this case enun-, ciates the rule as to whether or not a burdened ownership can be' the subject of partition, i.e., the question as to whether or not the■ burden can be made to attach to the partitioned parts in severaltydecides the point.”
The learned Judge then held that, as the. service of a paraveni nilakarayais indivisible, it cannot be made to attach to portions of the panguwa inseveralty and hence the decision in Jotihamy v. Dingirihamy (supra) was
1 (1875) Bam- 226.
Saurmma and Mohamadu Lebbe.
397
right. It is also relevant to refer to the following passages from thejudgment of de Sampayo J. delivered in the same case : —
“ The state of the law to be gathered from the above referencesis made clearer by the Service Tenures Ordinance, No. 4 of 1870. It isremarkable that nowhere in the Ordinance is the lord of a nindagamareferred to directly or indirectly as the owner of the lands held by theparaveni nilakarayas. On the other hand, section 24 declares that ifservices are not rendered or commuted dues paid by the paraveninilakarayas for a period of ten years, the panguwa shall be deemed freethereafter from any liability on the part of the nilakarayas to renderservices or pay commuted dues. It seems to me clear that in such acase the Ordinance intends that what was previously qualified owner-ship shall become absolute ownership …. A difficulty is nodoubt created by such cases as Siripina v. Kiribanda Korala but Iconfess I cannot quite understand the principle by which it was heldin those cases that neither the proprietor of the nindagama nor thetenant could gem or dig for minerals, without the consent of the other.The Court appears to have struck out a middle course, with regard togems 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.”
The only other case that in this connection merits attention is that ofSiripina v. Kiribanda Korala (supra) where it was held that in theabsence of proof of any custom, neither the landlord nor the tenant of anindagama can gem on land without the other’s consent.
Inasmuch as the land is no longer subject to a liability to perform in-divisible services I am of opinion that the learned Judge was right incoming to the conclusion that it could be the subject of a partition actionunder the Ordinance. The appeal is therefore dismissed with costs.Keuneman J.—I agree.
Appeal dismissed.