051-NLR-NLR-V-04-COEEA-MUDALIYAR-v.-PUNCHIRALA.pdf

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1809.
November 27
and
December 29.
made at intervals of many years; that the accused’s house adjoinsthe land cleared by him; that the villagers laid claim to the wholevillage where the land was, asserting communal rights on thefooting that they were the co-owners of all the low jungle, thoughthey had no sannas or deed of any kind in their favour. It wasadmitted that the land was well suited for cocoanut cultivation.
The accused, giving evidence in his own favour, deposedthat he and other occupants of the village claimed the particularallotment together with the rest of the village; that they wererelated to each other; that some of the villagers had married andgone to other villages; that neither he nor his co-owners hada sannas or other deed in their favour; that he claimed the land inquestion as communal property which had come down to himby inheritance; and that he and others cultivated chenas forthemselves without permits from the Government Agent.
The Police Magistrate found that some of the lands in thevillage had been chena before, but that the villagers had no rightto the land as against the Crown.
He convicted the accused and sentenced him to a fine of Rs. 20.
Accused appealed.
Rudra, for appellant.—This is not a proper case for criminalprosecution, as the accused claims the land by inheritance.In D. C,, Kalutara, 28,686 (Ram. 1877, p. 166), payment by a land-owner of one-tenth of its produce to Government was held to beevidence that it was a private land. It is proved in this case thatthe villagers paid one-tenth tax. In Queen’s Advocate v. Appu-hamy (1 S. G. C. 26), Pheab, C.J., held that in order to bringa land within the meaning of section 6 of Ordinance No. 12 of 1840it was necessary to show that the land is chena or other land,which, in the same sense as chena, is incapable of being cultivatedotherwise than at intervals of several years. So in Kirihamy v.Fernando (2 S. G. G. 88), it was held that if chena lands werepossessed as appurtenances to ancestral paddy lands, such chenaswould become private property. And in Meera Lebbe v. JuonFernando (2 8. G. G. 140), it was laid down that the mere fact thata land which had been formally occupied or cultivated was, at thetime when the dispute as to its ownership arose, unoccupied oruncultivated, would not by itself give rise to the statutorypresumption in favour of the Crown. Chena lands are differentfrom ordinary lands. Ordinarily, land though not cultivatedevery year is cultivable every year, but chena lands being poorerin the soil cannot be so cultivated, they are left fallow for a numberof years before they become fit for produce. It has not beenproved that the land in respect of which the accused is charged is
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such chena land. No presumption in favour of the Grown cantherefore arise. On the contrary, accused claims it as an appur-tenance to his field and says he and his ancestors had cultivatedit from time to time.
Ramanathan, S.-G., for respondent.—A great deal of miscon-ception exists as to the nature of chena lands. In olden timesthe natives were devoted to paddy cultivation, which was annual,being dependent on rain or irrigation, and to the raising of yams,potatoes, dry grain, &c., which required a great deal of manure,in the absence of which it was not possible to carry on such chenacultivation regularly. Villagers therefore resorted to the easyexpedient of raising “ chena ” produce by clearing jungle land,setting fire to the jungle, and allowing the ashes to enrich thesoil before planting it with chena shrubs. After the harvest theyallowed the land to run into jungle again so as to secure a freshsupply of ash manure before raising another chena crop. Landsubject to this kind of treatment, for the purpose of raising suchcrops as yam, potato, dry grain, &c., fitfully and at intervals ofseveral years, were henas, corrupted into “ chenas. ” Hena seemsto be derived from hirt, i.e.—weak, irregular—as opposed to regularor annual: hence hena cultivation means irregular cultivation ofsuch things as yam, potato, hill paddy, or fine grain, as distinctfrom the regular rice cultivation, which depends on systematicirrigation or regular monsoon rains.
Thus, the words “ chenas and other lands which can be onlycultivated after intervals of several years,” occurring in theOrdinance No. 12 of 1840, section 6, must be taken to mean landswhich had been used, at the time of the passing of the Ord'nance,by the natives of the country for the raising of chena produce bythe expedient of felling jungle and setting fire to it for thepurpose of getting a supply of ash manure. If there is a plentifulsupply of ash manure to be had every year, there is no reasonwhy these very lands should not give a crop every year. Indeed,cocoanut plants grow well enough on what are called “ chena ”lands. With a little hoeing round the trees and some ash manure,the cocoanut plants thrive there. In these circumstances, thereis no point in the argument that, because lands dealt with bysqattters are fit for cocoanut cultivation, therefore they are notchena lands under the Ordinance. The authorities cited bycounsel for the appellant must be read by the light of the pastagricultural history of the Island and the fact of 'the existenceof improved methods of cultivation at the present day, as alsothe opportunities which cultivators have of transporting manureof different kinds from one part of the country to the other
1899.
November 27and
December 29.
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1899.
November 27
and
December 29.
by means of roads and railways, which did not exist in 1840,when the Ordinance to prevent encroachment upon Crown landswas passed. As to the payment of one-tenth tax, there is noevidence of it save the bare statement of the accused. His claimto the land as property belonging to the villagers as a body isunmeaning, because accused does not show that he and his fellow-villagers are descended from a common ancestor and what hisparticular share is by such inheritance. Nor does he produceany other evidence of co-ownership, such as a deed or sannas,showing what interest his fellow-villagers and he in particularhave in the land claimed.
Cur. adv. vult.
29th December, 1899. Lawrie, J.—
As this case was presented to me and argued as a test case onwhich many others depended, I delayed to give judgment until1 had time carefully to consult the authorities cited to considerthe case in all its respects.
It is (I think) a simple case. The appellant cleared for chenacultivation half an acre, covered with low scrub of about four orlive years’ growth. He did so claiming right: he did not ask norget a permit from the Government Agent. The land had beenchenaed before—indeed so far as the memory of any livingwitness goes it has been chenaed. It was argued that this wasnot, properly speaking, a chena, because chenas are defined in theOrdinance No. 12 of 1840 to be land which can be only cultivatedafter intervals of several years, and that there was evidence herethat in Milagahahena the soil is fertile, and that cocoanuts andother permanent food-producing trees might be planted. Thewords “ can be only cultivated after intervals of several years”mean (I think) I have hitherto been so cultivated.
Science and experience discover permanent plants suited tochena land, notably tea, which has been planted and flourishes onhundreds of acres which were formerly chena. I cannot but holdthat this half acre, and indeed the whole of the land spoken to bythe witnesses, is chena land within the meaning of the OrdinanceNo. 12 of 1840.
The 6th section of the Ordinance No. 12 of'1840 seems to con-template that the best proof that chenas (in other parts of Ceylonthan the Kandyan Province) are private property are the ThomboEegister heretofore established. I am ignorant whether there bea Thombo Eegister in the village or district in which the land lies.None has been produced. It was open to the appellant to provewritten title to the land; it is admitted that he had none. Itwas open to him to prove title to it as an appurtenant of his paddy
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fields, but be has not done so. It was open to him to prove titleto it by prescriptive possession for a third of a century on a titleadverse to the Crown, but he has not done so. He has not saidthat he individually, or his father or any ancestor or any one fromwhom he derives title, possessed or cultivated this part of Milagaha-hena. He claims as communal property, as the property of theinhabitnats of the village Midellawatawenna. In many parts ofCeylon there are traces of the old communal system: these areinteresting to a historian or antiquarian, but communal propertyis not (I think) recognized by our Common Law.
The claim made by the appellant (and I presume by those whoare defendants in other cases which depend on this) has not beenstated with precision, and the question whether there be commonor communal property in Ceylon, and if there be what the rightsof individual villagers in the common property are, and how theyare to be regulated, cannot be decided in a criminal case.
I am bound to hold, on the evidence before me, that the appel-lant cleared a chena land deemed to be a forest or waste landwithin the meaning of No. 12 of 1840, and hence presumed to bethe property of the Crown; that he did so without a permit, as isrequired by the Forest Ordinance rules, and that the appellant hasfailed tc make a primd facie case that the land is his privateproperty.
It was urged with force and ability that, in cultivating, the appel-lant acted in good faith, that he had a colourable title. I do notdoubt that he believed that he and all the men of his village haveright to possess and cultivate the chena. That belief rests on thetradition that the villagers have done so from time immemorial, butit is proved that Government has of late years asserted adversetitle. It is said that customary taxes have been imposed, but asno permits or receipts were produced I do not know whether thetax implied that the land was Crown or private land. Latterly,the Crown has sold parts of the high and chena land in thevillage. While the belief that their claim was good prevents thevillagers of Midellawatawana being regarded as criminal whenthey chenaed the chena, I am not able to say that good faith wasfounded on such reasonable grounds as to furnish a completedefence to a charge under the Forest Ordinance.
It is said that a Police Court is not the right tribunal to tryquestions of disputed title to land. Of course it is not, but aPolice Court prosecution is less burdensome to a villager than acivil action. It does not last for long, and there are no costs. Ifthe accused has a good title—if he even has a. colourable title—hecan produce his deeds or prove his possession and he will be
1890.
November 87and
December 19.
liAWRIE, 3.
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1899.
November 27
and
December 29.
by means of roads and railways, which did not exist in 1840,when the Ordinance to prevent encroachment upon Crown landswas passed. As to the payment of one-tenth tax, there is noevidence of it save the bare statement of the accused. His claimto the land as property belonging to the villagers as a body isunmeaning, because accused does not show that he and his fellow-villagers are descended from a common ancestor and what hisparticular share is by such inheritance. Nor does he produceany other evidence of co-ownership, such as a deed or sannas,showing what interest his fellow-villagers and he in particularhave in the land claimed.
Cur. adv. vult.
29th December, 1899. Lawrie, J.—
As this case was presented to me and argued as a test case onwhich many others depended, I delayed to give judgment until1 had time carefully to consult the authorities cited to considerthe case in all its respects.
It is (I think) a simple case. The appellant cleared for chenacultivation half an acre, covered with low scrub of about four orlive years’ growth. He did so claiming right: he did not ask norget a permit from the Government Agent. The land had beenchenaed before —indeed so far as the memory of any livingwitness goes it has been chenaed. It was argued that this wasnot, properly speaking, a chena, because chenas are defined in theOrdinance No. 12 of 1840 to be land which can be only cultivatedafter intervals of several years, and that there was evidence herethat in Milagahahena the soil is fertile, and that cocoanuts andother permanent food-producing trees might be planted. Thewords ‘‘ can be only cultivated after intervals of several years”mean (I think) I have hitherto been so cultivated.
Science and experience discover permanent plants suited tochena land, notably tea, which has been planted and flourishes onhundreds of acres which were formerly chena. I cannot but holdthat this half acre, and indeed the whole of the land spoken to bythe witnesses, is chena land within the meaning of the OrdinanceNo. 12 of 1840.
The 6th section of the Ordinance No. 12 of'1840 seems to con-template that the best proof that chenas (in other parts of Ceylonthan the Kandyan Province) are private property are the ThomboRegister heretofore established. I am ignorant whether there bea Thombo Register in the village or district in which the land lies.None has been produced. It was open to the appellant to provewritten title to the land; it is admitted that he had none. Itwas open to him to prove title to it as an appurtenant of his paddy
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fields, but he has not done so. It was open to him to prove titleto it by prescriptive possession for a third of a century on a titleadverse to the Crown, but he has not done so. He has not saidthat he individually, or his father or any ancestor or any one fromwhom he derives title, possessed or cultivated this part of Milaguha-hena. He claims as communal property, as the property of theinhabitnats of the village Midellawatawenna. In many parts ofCeylon there are traces of the old communal system: these areinteresting to a historian or antiquarian, but communal propertyis not (I think) recognized by our Common Law.
The claim made by the appellant (and I presume by those whoare defendants in other cases which depend on this) has not beenstated with precision, and the question whether there be commonor communal property in Ceylon, and if there be what the rightsof individual villagers in the common property are, and how theyare to be regulated, cannot be decided in a criminal case.
I am bound to hold, on the evidence before me, that the appel-lant cleared a chena land deemed to be a forest or waste landwithin the meaning of No. 12 of 1840, and hence presumed to bethe property of the Crown; that he did so without a permit, as isrequired by the Forest Ordinance rules, and that the appellant hasfailed tc make a prima facie case that the land is his privateproperty.
It was urged with force and ability that, in cultivating, the appel-lant acted in good faith, that he had a colourable title. I do notdoubt that he believed that he and all the men of his village haveright to possess and cultivate the chena. That belief rests on thetradition that the villagers have done so from time immemorial, butit is proved that Government has of late years asserted adversetitle. It is said that customary taxes have been imposed, but asno permits or receipts were produced I do not know whether thetax implied that the land was Crown or private land. Latterly,the Crown has sold parts of the high and chena land in thevillage. While the belief that their claim was good prevents thevillagers of Midellawatawana being regarded as criminal whenthey chenaed the chena, I am not able to say that good faith wasfounded on such reasonable grounds as to furnish a completedefence to a charge under the Forest Ordinance.
It is said that a Police Court is not the right tribunal to tryquestions of disputed title to land. Of course it is not, but aPolice Court prosecution is less burdensome to a villager than acivil action. It does not last for long, and there are no costs. Ifthe accused has a good title—if he even has a. colourable title—hecan produce his deeds or prove his possession and he will be
1899.
November STand
December 19.
llAWRIE, J.
1899.
November 27and
December 29La wrie, J.
acquitted; if lie has no title, and if his possession be unjustifiable,a fine is less burdensome than the decree for possession and costsin a civil suit. In my opinion the fines imposed in such casesshould be moderate, so that the alternative of imprisonment maynot be necessary. In the present case, which I affirm, I reducethe fine to Rs. 10. This will doubtless be paid: I need not addthe alternative of imprisonment.