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CHENA MUHANDIBAM *. BANDA.
428—P. C. Anuradhapura, 40,457.
June 6, 1914. Labcblles C.J.—
This is one of a group of four cases in the Police Court of Anuradhapura,in which villagers appeal from convictions under the Forest Ordinance forillegally clearing land for chena cultivation at different places within theKiralawa korale.
As the defence is the same in all. four cases, I deal with the questions involvedin the present appeal, as the nature of the defence is more fully developedin this case than in the others.
The defendants claim to be entitled to the lands in question on a talipotfounded on a document known as “ the Kiralawa sennas. ” The talipot bearsdate 1548, according to one of the translations (or, according to another trans-lation* 1620), of the Sake era, and was registered in 1873. It purports to be agrant by Gomara Mudiyanse to Wahala Madurale of all the lands withincertain specified boundaries. The appellants claim descent from the originalgrantee. It is admitted that the defence is bona fide, that the lands in questionare within the boundaries named in the talipot, and that the appellant in thepresent case and his ancestors have claimed the land for a long time.
In cases of this nature I am very strongly of opinion that the questions atissue between the Crown and the claimant can only be satisfactorily disposedof either by civil action or by proceedings under the .Waste Lands Ordinance.The latter form of proceedings is preferable, as it is generally found possibleto arrive at a settlement which is accepted as equitable by the claimantsthemselves.
It is true that in prosecutions under the Forest Ordinance the Magistratehas jurisdiction, under section 4 of the Ordinance, to adjudicate on questionsof title arising in the course of the proceedings. There are many cases wherethis power may' be exercised properly and without injustice to those concerned.But it was never intended that this procedure should be resorted to as ashort cut to get rid of claims like that involved in the present case. Thecase is one where there is a bone fide claim to a village under an ancient grantsaid to be based on a saunas. I can imagine nothing more unfair than thatsuch a claim should be met by prosecuting the claimants summarily one byone in the Police Court.
But apart from its essential unfairness, this procedure is, and must be,futile. The questions involved in claims like these are far too intricate tobe disposed of by the summary procedure of a Police Court.'
The present case is an illustration of the result of attempting to dispose ofcomplicated claims in a Police Court.
The root of the claim appears to me the Kiralawa sennas. The Magistrategets rid of this document in a very .summary fashion. “ This sennas,’* hestates in his judgment, " has since been condemned as a forgery." For augh
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I know *hi» may be the case. Bat them is no evidence whatever to justifysneh a pronouncement. The sennas was not produced in Court, and noevidenoe was given as to its genuineness. The only foundation for the Magis-trate's condemnationof the sennas is a statementby theKerala that the
cuningh was declared a forgery “ in this Court,” meaning, I suppose, the PoliceCourt of Anuradhapura. Thus, purely on hearsay evidence, and without anyinvestigation at all, the sennas is ruled out of the question.
Another instance may be given of the essential unfairness of the procedureadopted in these cases. In appeal No. 421 one of the accused stated thathe has beenprosecutedand acquitted of a similar offence in P. C. No. 24,773.
If this pleahadbeenput forward in a civil case it would havebeen fully
investigated.Buthemit appears to have received no atitention.Yet what
the accusedsaidwassubstantially true. He was charged witha similar
offence; he pleaded the same defence, namely,thathe wasentitled to the
land under the talipot; the case was postponed to await the result of an appeal-to the Supreme Court in another case (No. 27,957). When the conviction inthat case was set aside by the Supreme Court, the following journal entryappears: " Vide letter No. 1,440 of 16/5/01 received from Government Agentand- filed and recorded in P. C. 27,957. Case to be dropped pending settlementof the genuineness of the sennas referred to in 27,957 in civil proceedings.”
But it appears from the letter of the Government Agent that, besides caseNo. 27,957, 172 other cases were dropped pending the settlement of thegenuineness of the sannas in civil proceedings.
This circumstance,which can hardly havebeenoverlooked, should have
been brought to thenotice of the Magistrate.Hisdecisionwould probably
have been otherwise had he been aware that the procedure now adopted hadbeen abandoned in 1901 in consequence of an adverse decision of the SupremeCourt.
It is clear to me that the issues involved in the defence bona fide .set upby the accused have not been properly tried, and on this account I set theconviction aside.
CHENA MUHANDIRAM v. BANDA