016-NLR-NLR-V-02-CASIPILLAI-v.-RAMANATER.pdf
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CASIPILLAI v. RAMANATER,C. R., Jaffna, 397.
1896.
March 18.
Cretan land—Right of possessor to a Crown grant—Prescription—
Improved value—Ordinance No. 12 of 1840, 8. 8.
Possession, as defined in clause 3 of Ordinance No. 22 of 1871,of Crown land for fifteen years prior to alienation thereof by theCrown dannot avail as a plea in bar to a claim to such land by aprivate individual who has purchased it from the Crown.
Semble, per Bonseb, C.J.-—That the Crown cannot by conveyingaway land in the possession of a private individual deprive thepossessor of the benefit of section 8 of Ordinance No. 12 of 1840,under which a possessor of Crown land, in certain circumstances,is entitled to a grant of such land from the Crown on payment-of half its improved value, and cannot be ejected from such landexcept on payment to him of such share of the improved value.
Qusere—Whether a purchaser from the Crown does not get anunimpeachable title.
'JpHE facts of the case fully appear in the judgment.
Domhorst, for appellant.•
Wendt and Sampayo, for respondent.
18th March, 1896. Bonseb, C.J.—
This is an unfortunate litigation about a very small piece ofland, some thirty-six perches in extent. It is admitted thatthe defendants have been in possession of it since 1879, thatit was within a clearly marked boundary, and was enjoyedby the defendants as part of their holding. In 1879 the firstdefendant purchased a piece of land from the Crown, and it wasduly conveyed to him by the Crown. The plan on the con-veyance to the defendant is the usual sort of thing which is affixedto a Crown grant, but which for any practical purposes might bedispensed with. It is a mere geometrical figure drawn ona blank sheet of paper. The defendants took possession of whatthey conceived to be the land which was conveyed by the grant,and on the eastern boundary they erected a dam, they culti-vated the land, asweddumized it, and brought it into cultiva-tion as paddy land. No one disputed their title till 1893. Theythus enjoyed the land for a period which, against any body butthe Crown, would be sufficient to establish their title even if theyhad no previous title. In 1893 the Crown put up for sale thetract of land on the eastern boundary of the defendant’s land.
Vol. H.12(c5)29
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1806.March 18.
Bonseb,O.J.
The plaintiff became the purchaser of this land, and it was dulyconveyed to biin by a conveyance on which was drawn ‘a plan.The plan was not made an integral part of the conveyance, but itwas referred to incidentally in the body of the deed. The landis described as “ containing eleven acres and thirty-six perches
“ according to the annexed survey and description thereof .”
The plaintiff, when he bought this land, was aware of thepossession by the defendant of the piece of land in dispute whichwas a strip on the eastern boundary of the defendant’s land andtherefore on the western boundary of the land bought byplaintiff. He admits that he was aware of the possession by thedefendants and of the existence of the boundary dam. The landwas jungle land, and it was sold . by the Crown as unculti-vated land; and I do not for a moment believe that, when theplaintiff purchased this land at the Government sale, he intendedto purchase with the uncultivated land this strip of land whichhe knew to be cultivated and in the possession of the defendants.However, after the conveyance he called in a surveyor, who toldhim that he was entitled under that conveyance to this disputedpiece, and he therefore raised this claim. The defendants beingin possession, the proof of title rests with' the plaintiff, and he.must prove, beyond doubt, that this strip of land which he claimswas included in the Crown ’grant. SurveySrs were called bythe plaintiff, who testified that by comparison of plans they wereof opinion that this strip was included in the plan annexed. to the plaintiff’s grant. But this involves, what seems to be, agreat difficulty. On the western boundary of the defendant’sland, as it has been enjoyed by them for many years past, thereis a wide channel or water-course. Now, the case for the plaintiffthrows the western limit of the defendant’s land on the otherside of the water-course, giving him a narrow strip of land on theother side of the'water-course—a narrow strip of land practicallyuseless. I find great difficulty in believing in such a state ofthings. It appears to me in the highest degree improbable that thewater-course—a natural feature—was not the defendant’s westernboundary line. Various plans were put in by the surveyors forthe plaintiff, and although they all agree in throwing* thedefendant’s western boundary line on the other side of the water-course, yet they do not agree in its dimensions. Some of themmake the strip of land and the further side of the water-coursewider at the southern extremity and narrower at the northern;others make it wider at the northern and narrower at thesouthern extremity. The surveyors, therefore, are not agreed asto this, western boundary of the defendant’s land. The Court is
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always desirous to give effect to long possession, and nnder all thecircumstances of the case I cannot come to the conclusion thatthe plaintiff has made out that this strip of land in dispute wasbought by him and conveyed to him. I am perfectly satisfiedthat it was not bought by him. I am not satisfied that it wasever conveyed to him. Jt was suggested by Mr. Domhorst, forthe defendant, that length of possession—fifteen years—wassufficient to give the defendant’s title in any case against theplaintiff; ljut I am of opinion that that contention cannot be sus-tained, that if the plaintiff succeeds to the title of the Crown heis entitled to the rights of the Crown as far as regards prescription.Another point was raised in argument, which it is not necessaryto decide, as to the effect of section 8 of Ordinance No. 12 of 1840.That section provides that if a person has taken possession of,and cultivated, planted, or otherwise improved any land belongingto Government, and shall have held uninterrupted possession thereoffor not less than ten nor more than thirty years, such person shallbe entitled to a grant from Government on payment of half theimproved value.; and only in case the land is required for publicpurposes or for the use of Her Majesty can the person in possessionbe ejected therefrom, and only then on payment of half the improvedvalue.
The defendants had such possession, and had done such acts aswould entitle them, to the benefit pi the section in question, andit was urged that the Crown would not, by conveying land awayto a purchaser, deprive the possessor of the benefit given to himby that section., The inclination of my mind is in favour of thatcontention. But it was not raised in the Court below, and in thecircumstances it is not necessary to express any decided opinionnow.
Then the question arises as to costs. As I said before, I am notsatisfied that the plaintiff thought he was buying this land. Hesought to take advantage of what he conceived to be bis rightunder the conveyance. He has failed in his action, and I see noreason for relieving him of the burden of paying the defendant’scosts.
I, would add that Mr. Wendt contended for the plaintiff that
the land was conveyed to him by the Crown, and that whether it .belonged to the defendants or not, the plaintiff got a good title;and that the remedy of the defendants was by an action againstthe Crown for conveying their land, regard being had to wha,twas apparently the law of this Court at a time not very long ago{2 Thomson’s Institutes, 509). But under the circumstancesof this case it is unnecessary to decide that point.
1890.
March 18.
Bonsbb, C.J.