COOKE et al v. FREEMAN , Assistant Government Agent

049-nlr-nlr-v-08-cooke-et-al-v-freeman-assistant-government-agent

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COOKE et al v. FREEMAN, Assistant Government Agent.,[The Addipola Sannas Case.}
D. C.t Chilaw, 2,954:
Reference under Waste Lands Ordinance, 1897—Effect of Government AgenVsopinion as to nature of land—Meaning of “ chena ”—Effect of registrationof sannas—Deed thirty years old—Refusal of Court to presume its genuine-ness—Burden of proof—Sannas with words, Ac., of a period later than thedate of the grant, and in characters in vogue at a period other than thatof the grant—Prescriptive possession of subject of grant—Duty of Judgewith reference to administration of law.
Qucere, whether in the case of a reference under the Waste LandsOrdinance, No. 1 of 1897$ the mere fact that the land which is the subjectof the reference has appeared to the Government Agent to be forestvchena,waste, or unoccupiedland andthathehasgiven- the notice
required by the Ordinance in respect thereof is not of itself sufficientgroundof presumption that the landissuchasfallswithin the scope
of the Ordinance.
The word “ chena *’ in section’1, sub-section 1, of the Ordinance stand*unqualified by any other words, and means lands which is commonlyknown as “ chena land ” in this country: that is to say, land subjected-to
the process of what is known as ” chena cultivation ‘ • or left-V-uncuItivated .»and allowed to lapse into jungle with the object of bein^ subjected tosucJ) process. So, when .it is shown that land which is the subject of areference under the Ordinance answers to this description, it is to bedeemedto be land within thescope ofthe Ordinance. It is not necessary
that itshould be shown thatthe landissuchascanbe cultivated only
after intervals of years.
1906.
Aug. 28 SoSept 1 andSept. 8.
1005.
Avg. U toSept. 1 and■ Sept. 8.
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The registration of a saunas under Ordinance Ho. 6 of 1866, ia nottantamount “to an admission by Government of its genuineness. Byregistration the initial objection to tbs reception of a saunas in evidenceis removed, but its validity or effect or claim of any party to have itreceived in evidenoe may be questioned on any ground other than lackof registration.
When a Court refuses to presume, under section 90 of the Evidence. Ordinance, that a saunas thirty years old is genuine, the party relyingupon it is bound to prove it. In the absence of such proof it is notnecessary that the opposite party should lead evidence to show it is a.forgery.
Where a saunas purporting to have been’ granted in the Saka year1247 (corresponding to 1325 a.d.) by King Bhuwanaka Bahu tit Kotte,was contested on the ground, inter, alia, that the Sinhalese city • ofJayewardenapura, now known as Kotte, was not in existence then, heldthat historical research disclosed facts . adverse to that contention, butthe fact that the saunas contained certain Sinhalese words, expressions,and names of more recent origin, and that the characters did not appearto be thoee: in vogue at the period of the alleged grant, sufficiently indicatedthat the document was not genuine.
The fact that a certain number of families composed of an indefinitenumber of persons claiming to be the descendants of the grantee on analleged saunas have lived in the land which is the subject of the allegedgrant for many years, and that individual members of these familieshave for upwards of thirty years cultivated such portions of the land asthey chose and at such times and intervals as were found to be convenient,is insufficient to give rise to prescriptive rights- in the absence of evidenceof any individual members of these families and their predecessors intitle having been in possession of any particular allotment of land actuallyor constructively during the .prescriptive period.
Itx is the duty of a Judge to administer the law as he finds it, andprotestation by a Judge against the supposed injustice or severity of alaw on each occasion he is required to administer it is unavailing andcalculated’ under certain conditions to produce mischievous results.
fjlHE facts are sufficiently set out in the judgment.
The Hon. A. G. Lascelles, K.C., A.-G., and Fernando, C.C., forthe defendant.
. Domhorat, K.C. (with him E. II’. Perem, for the plaintiffs.
Cur. adv. vult.
8th September, 1905. Pebeira, J.—
This is a case under the Waste Lands Ordinance, No. 1 of 189*7,as amended by Ordinances No. 1 of 1899 and No. 5 of 1900. On areference made under the Ordinance to the District Judge he hasmade order under section 16. He has held that eighteen of theallotments of land described in the statement of reference bel°nSto the Crown, and he has dismissed the reference as regards theother lots specified therein. With reference to three of the lots(P 1,176, Q 1,176,.and 1,106) adjudged to belong to the Crown therewas practically no contest. Each party appeals from that part of
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0
the judgment as regards the rest of the lots that is adverse to 1905.his claim. The claimants, who under the Ordinance are to beregarded as the plaintiffs in this proceeding, questioned the rightof the Government Ageht to take steps under the Ordinance inj
respect of the allotments of land specified in the reference on theground that they were not such lands as were contemplated bysection 1, sub-section 1, of the Ordinance, and accordingly thefollowing issue seems to have been framed by the District Judge:
“ Are the lands under reference in this case forest, chena, waste,or unoccupied lands within the meaning of Ordinance No. 1 of1897 ?” This is admittedly the principal issue in the case.
As regards thirty of the allotments the District Judge hasdecided, this issue in the negative, and the question that should beconsidered first is whether these allotments answer to the descrip-tion of land mentioned in section 1, sub-section 1, of the Ordinance.
The contention for the Crown, in the main, is that with theexception of some three or four of the allotments, which arecolored with water and which may therefore be treated as wasteland, the lands are chena lands. In considering this question it isimportant to note, in the first place, the words used in section 1,sub-section 1, of the Ordinance. The sub-section runs thu$:
“ Whenever it shall appear to the Government Agentthat any
land or lands ,is or are forest, chena, waste,, or unoccupied,
it shall be lawful for such Government Agent to declare by noticethat such land or lands or any of such lands in respect of whichno claim is made to him witfiin the period of three months fromthe date specified in such notice shall’ be deemed the property ofthe Crown/’ A preliminary question arises whether the fact thatcertain land has appeared to the Government Agent to be forest,chena, waste, or unoccupied,’ and that he has given the requirednotice in respect thereof, is not of itself sufficient -proof that theland is such as falls within the scope of the Ordinance. Anauthority that would appear to be applicable to the question is adecision under the Land Acquisition Ordinance. It is the decisionin the case of Government Agent v. Perera (7 N. L. B. 313). Itwas there held that the decision of the Governor on the questionwhether a land was needed or. not for a public purpose. was final,and the District Court had no power to entertain objections to theGovernor’s decision. The words of the Ordinance are very muchthe same as the words of the sub-section referred to above of*the Waste Lands Ordinance. The words are: “ Whenever it shallappear to the Governor that land in any locality is likely to beneeded for any public purpose, it Bhall be lawful for the Governorto direct,” &c. I shall hot, however, decide the question as to
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1005.
Aug, 28 to
%
1 andU 8.
PffiUBii J.
whether the Government Agent’s decision as to the nature of theland is binding on all parties to the extent oi precluding them fromquestioning the Government Agent’s right merely to initiate pro-ceedings under the Ordinance. I shall rather address myself to aconsideration of the ground on which the District Judge has heldthat, the thirty allotments of land referred to above did not fallwithin the scope of the. Ordinance. That ground is that thedefendant has not proved that the lands are such as can be culti*vated only after intervals of several years. The judgments he hasrelied upon and many that have been cited in the course of theargument in appeal have, in my opinion, no application whateverto the question as to the meaning to be given to the words used insection 1, sub-section 1, of Ordinance No. 1 of 1897. Those , aredecisions under section 6. of Ordinance No. 12 of 1840. True,the words of that section are very much the same as those ofsection 24 of the Waste- Lands Ordinance, but section 24 comesinto play after the., proceedings are once floated—after the ma-chinery of the Ordinance -i£ once started, that is to say, when theserious question of actual.. ownership has to be decided by theCourt, the parties being brought to close quarters. All the require-ments necessary to commence proceedings—to start the machinery—are to be looked for within the four comers of section 1, sub-section 1, of the Ordinance. There the word ” chena” standsunaccompanied, unqualified, by any other words, and the simplequestion is whether the land is such as would ordinarily in thiscountry be called chena land. “ Chena land ” in this country isunderstood to mean jungle land burnt and cleared at intervals ofyears and sown with fine grain and vegetables. The meaninghere given has reference to certain methods of cultivation adopt-ed by the Sinhalese villager. Land that is now subjected to chenacultivation may, under certain conditions, be capable of perennialcultivation every year, but from poverty or indolence. the Sin-halese villager is not in the habit of making an effort to inducethoses conditions, especially in the direction of irrigating the landand feeding the soil with suitable manure. He would ratherallow Nature to do that, and stand by with folded arms until shehas done it; in other words, he would allow the land to liefallow, let jungle grow on it, wait until the land receives suchnutrition as it may from rain and other natural sources, andultimately cut the jungle down, bum it, and let the ash minglewith the soil so as to form a rich superstratum for his next cropof fine grain. Fine grain and vegetables that are grown on chenaland having a tendency to exhaust the soil, no further crop canJbe raised until after another interval of years. ‘‘Chena land,” as
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understood in this country, is land subjected to this process. Itanay be capable of being subjected to aAy other process of eultivation, but that does not make it any the less chena land. If it isldnd which in fact is subjected to thiB process or left uncultivatedand allowed to lapse into jungle with the object of being sub-jected to it, it is chena land. Now, what is the evidence in thecase? The plaintiffs have supplied all the material necessary.Their witness, Mr. Ferdinands, the surveyor, has described allthe thirty allotments with, the exception of three or four whichare under water as chena land. He has said so in plain terms.It is not quite clear that he has allowed the “ general instruc-tions ” that he has referred to in his re-examination to influence<»
his opini&n as to the nature of the land; but, assuming he has,I have no fault to And with those instructions. The lands thatthe instructions require should be regarded as chena land maywell be’ so regarded. The evidence* of • the witness AndirallaAppuhamy also shows that the lands were chena lands. Whetherthey were cultivated as private lands or Oovemment lands,the description “chena” applied t6′ them. I have no ‘ hesitationin holding that the thirty allotments of land in question werechena lands and fell within the scope of Ordinance No. 1 of 1897.
I shall, however, proceed to examine one or two of the autho-rities cited. The District Judge relies mainly on the judgment inthe case of Queen’s Advocate v. Appuhamy (1 S. C. C. 126). Thatwas a decision as to the construction to be placed on certainwords in section 6 of Ordinance No. 12 of 1840. The question inthe case’ was whether certain owita land was the property of theCrown; and Phear, C.J., held that in order to claim the benefit ofthe presumption created by section 6 of the Ordinance the Crownshould prove that the land in question was either chena or landwhich is, in the same sense as chena is, incapable of beingcultivated otherwise than after intervals of several years. TheDistrict Judge thinks that the decision is applicable to the presentcase, teause section 24 of the Waste Lands Ordinance is verymuch the same as section 6 of Ordinance No. 12 of 1840, but, as Ihave shown already, section 24 of the Waste ->Lands Ordinancedoes not contain any definition of ” chena land,” and it has no– thing to do with section 1, sub-section 1, of that Ordinance. Itcomes into play after the aid of the Ordinance has already beeninvoked, and when the final determination of the question as totitle is being discussed. -But assuming that the authority cited isapplicable, all that it decides is that in ‘the case of land other thanchena it has to be shown that in the same sense as chena (that is,the sense I have referred to already) it is incapable of being
1905.
Aug. 88 toSept. 1 and. Sept. 8.
Pnonu, J.
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1006. cultivated otherwise than alter intervals of several yeajs. ChenaAug. 28 to land is land which in fact is so cultivated and reserved as exploited%*£* above to be so cultivated. To expect proof that any land can be
cultivated only after intervals of several years in order to show
PpnwntA, j.jg 0hena land would be to nullify the effect of the Ordi-
nance, because, as I have observed above, chena land undercertain conditions may be capable of cultivation every year. Thecultivation referred to in the Ordinance is such cultivation as Ihave explained above. Mr. Justice Lawrie puts the matter clearlyin the case of Corea Mudaliyar v. Punohirale (4 N. L. R. 135).These are his words: “ It was argued that this was not, properlyspeaking, a chena, because chenas are defined in the OrdinanceNo. 12 -of 1840 to be land which can be only cultivated afterintervals of several years, and that there was evidence here thatin Millegahahena the soil is fertile, and that cocoanuts and otherpermanent food-producing trees might be planted. The words‘ can be only cultivated after intervals of years ’ mean, I think,have hitherto’ been so cultivated. Science and experiencediscover permanent plants suited to chena land, notably tea,which has been planted and flourishes on hundreds of acreswhich were formerly chena. I cannot but hold that this halfacre, and, indeed, the whole of the land spoken to by thewitnesses is chena land within the meaning of the OrdinanceNo. 12 of 1840.” It is indeed not necessary to discuss the “otherauthorities cited on this point. Most of them have no bearingon the questiou, -and those that are applicable support the view Ihave expressed above. For the reasons I have given I • thinkthe District Judge is wrong in holding that the thirty . allotmentsof land mentioned above do not fall within the scope of theOrdinance. When proceedings have once commenced under theOrdinance, the claimants arc, by the Ordinance, placed in theposition of plaintiffs, and the Government Agent in the positionof defendant, and the burden to prove title is thereafter on theplaintiffs as in an ordinary action in respect of land.
The question then to be considered is whether the plaintiffshave proved title < to the lots mentioned in the reference otherthan the eighteen lots specified in the decree, or whether theyhave proved such possession of these lots as is defined in section 3of Ordinance No. 22 of 1871. The plaintiffs have produced a sannaswhich contains a grant, as I understand, of the whole of what isknown as the Addipola village, with the exception of the threelots P 1,176, Q 1,176, and 1.106. With regard to this sanvae, twoquestions appear to have been raised, namely—(1) whether it is agenuine document, or a forgery; and (2) whether it is competent
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to the defendant to question its genuineness. As regards, the 1W6.latter, it was pointed out that the sannas had been registeredunder Ordinance No. 6 of 1866, and it was argued that the regie-4.
tiation of a sannas under this Ordinance was an admission byj.
Government of its genuineness, and the Government was there-after estopped from impeaching it as a forgery. Reference wasmade to the preamble of the Ordinance to show that the objectof the Ordinance was to prevent false deeds, olas, and sannasespurporting to bear old dates being produced in evidence inCourts of Justice; and the contention was based thereupon thatthe registration was a guarantee that the registered deed wasgenuine, and it was thereafter to be deemed as such at least asagainst the Crown. I confess I have not been able to see theforce of this argument. My reading of section 7 of the ’Ordinanceis that an unregistered swnnas, whether genuine or not, cannot bereceived in evidence in any civil proceedings in any Court of Justicefor the purposes mentioned in that section; but if it is registered,while the bar in limine created by the Ordinance to its reception inevidence is removed, its validity or effect or claim of any party to haveit received in evidence may be questioned on any ground other thanthat of lack of registration. The second proviso to this section is notvery happily expressed; but the above I take to be its meaning; and itwas competent to the Government Agent to object to the reception ofthe sannas produced on the ground that it was not genuine. Itwas further contended that as the sannas purported, on the faceof it, to be more than thirty years old, its genuineness shouldhave been presumed. The. District Judge seems to have beenasked to do so under the provisions of section 90 of the EvidenceOrdinance, but in the exercise, as he says, “ of the discretionvested in him by law, and remembering the false sannases oftenproduced in Courts,” he was not prepared to presume that thissannas had been duly executed, and he called for proof of it.
No proof whatever of the sannas was adduced. The only expertwitness called by the. plaintiffs, namely, High Priest Dharmarama,did not venture to say that in his opinion the sannas wasgenuine. Of course, in a case like this, direct proof of executioncannot be expected. The document could only have been provedby the opinion-evidence of expert witnesses, however unsatis-factory such evidence may be; but no such evidence wasadduced by the plaintiffs, and on the District Judge’s ruling as tc/the t presumption provided for by section 90 of the EvidenceOrdinance the defendant was entitled to judgment on thequestion as to the genuineness of the sannas; and it was
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1909, somewhat inconsistent of the District Judge to have required irAug* 88, to allowed any rebutting evidence to be led when there was in poidtSepi^and Q£ fac^ nothing to be rebutted. The argument in appeal had,g-jIZZI, j however, proceeded on the weight . and value and effect of thisevidence to such an extent that I presume that a decision thereonis desired by both parties, and I shall proceed to examine thisevidence. The grounds on which the opinions of the expert,witnesses against the genuineness of the saunas are based havebeen summarized and arranged by the District Judge in sixgroups. I shall first, deal with the sixth, namely, certain ana-chronisms which are supposed to support their views. Thesaunas purports to have been granted by King Bhuwanaka Bakuof Kotte in $he Saka year 1247, equal to 1325 a.d. The granteeis one Suriyahetti ^Mudiyanse who is said to have come from theTelugu «ountry. Ih the* course of his argument in appeal itwas stated by Mr. Grown Counsel Fernando, who addressed ub onsome parts oi the case for the defendant, that the attitude assumedby the plaintiffs in the Court below was that Alakeswara,a ‘prominent figure in Sinhalese history, who was himself ana^ve- of South India (Chola country), had established himself atKotte, or Jay,awardenapura, as Bhuwanaka Bahu V., and that it washe. who, moved by the’ fact of Suriyahetti Mudiyanse also havingcome from South India, invited him to his presence and madehim a grant of land. This is borne out by what the DistrictJudge says in his judgment. He points out a mistranslation inwhat is known as the authorized translation of the Mahawansa,and says:—“ Though the Crown now admits the mistranslation inverse 9, and that Alagakonara was not Bhuwanaka Bahu V., theother side does not. Their witness Sri Dharmarama insists that* .so 9 in Pali has not the meaning now given to it.” So that,according to the contention in the Court below, the questions tobe decided were—(1) was Alakeswara the same person as Bhu-wanaka Bahu V.? and (2) did Bhuwanaka Bahu V. reign at Kotteor Jayawardenapura in 1325 a.d.? The District Judge, in viewof the contention in the Court below, has been at great pains to gointo the maze of Sinhalese history to show that Alakeswara wasnot identical with Bhuwanaka Bahu V.; but I might at once say thatit was not seriously contended in appeal that he was. The factsand figures cited by the District Judge are sufficiently convincing,but I might add that I have looked into the compilation ofSinhalese histor^ known as the Helle-diu~Rajaneyat the first workof its kind I believe, which seems to have been first published in1853, and re-edited at the instance of Government under thedirection of the Central School Commission in the year 1868; and
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l have found that it bears strong testimony in favour of the deci-sion arrived at by the District Judge. It cannot, of course, becited as a work of authority, but it may be assumed to be the resultof careful research into all’ the reliable material available at thetime., A learned paper contributed by Mr. E. W. Ferera, Advocate,to the literature of the Boyal Asiatic Society, in September, 1904,also, I see, supports the District Judge’s decision. Alakeswarawas Praburaja or sub-king under Wikrama Bahu III., and it issaid that Bhuwanaka Bahu V., who succeeded the latter, reignedat Kotte under the ©gis of his great minister Alakeswara. Thatwas about the year 1391. So that the contention that Alakeswara,in the character of Bhuwanaka Bahu V;, was the grantor of this8anna8 may be dismissed from consideration altogether. Thereis an incident in Sinhalese history relating tb – the capture andremoval of a king of Ceylon by the Chinese. The Bajavaliyarefers to this event, and gives Wijayai Bahu as the name of the King,and says: “ After this there was no king in Lanka, but the ministerAlakeswara lived in the country of Baygama.” The question hasbeen much discussed as to which Wijaya Bahu is referred to here^still in the hope on the part of the plaintiffs, I take it, of identifyingAlakeswara with some one or other of the Bhuwanaka Bahus inthe long line of kings of that name. On the’ one side it has beensaid ’that the king referred to is Wira Bahu II. (No. 155 in theMahawansa list), and on the other that it is possibly Wijaya BahuIV. (No. 144 of the Mahawansa list) that is referred to. Inanswer to the latter the defendant’s counsel points out that it isauthentic history that Wijaya Bahu IV. was assassinated by hisminister Miththasena, and the plaintiff’s counsel replies thatpossibly the king had returned to Ceylon from his enforcedexcursion to China. It is difficult to unravel, as the DistrictJudge says, the tangled web of the history of this period. It issaid that an attempt has been made by some of the writers to mys-tify and conceal matters, so as to withhold from the .public gazethe humiliating circumstance of the capture of a king of Ceylonby the Chinese and the participation of an illustrious high priestin the assassination of a king. It cannot, however, be gainsaid thatbetween 1319 and 1361 there were two kings of Ceylon who borethe name Bhuwanaka Bahu, and the question remains whether it
was possible that either of these was at Kotte so as to be the author*of the saunas pleaded in this case. This brings me to the questionwhether Jayawardenapura was founded by Alakeswara or whetherit was in existence before his time. It is said that he was not thefirst builder of the city, but that he fortified the old town andcalled it ” New Jayawardenapura,” and reference has been made to
1905. .Aug. 88 0Sept 1 oimSept 8.
Pbabxha, J.
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the passage, Abhinava Jayawardena namin -prasidha KottaytkSept^ava ” *nNikaya Sangrahaya, meaning “ caused to be made a
t. 8.splendid fortunder the name New Jayawardena.” I cannot help
PhretraJ.observingthat Mr. Crown Counsel Fernando’s reply to this is
forcible.Hepoints to the Mahawama, which speaks (see page
320 of Mudaliyar Wijesinghe’s translation) of Alakeswara having” built the famous city of Jayawardene Kotte, and adornedit with rows of great ramparts and towers,” not where a city ofthat name already stood, but ” on the southern side of Kelaniyaand nigh unto the village Darurugama ’ ’; and as regards the name” New Jayawardenapura,” he argues that it does not necessarilymean that ah old Jayawardenapura was already there, but that aJayawardenapura may have been elsewhere, just in the same wayas the name “ New York ” does not necessarily imply that whenthe city was founded or” named there was already a city of the „name of “York” there. On the other hand, there is the strongtestimony cited by the District Judge—Colonel Yule’s ” Cathay,”in which it is stated that ” Kotte Jayawardenapura near Colombois first mentioned as a royal residence about 1314,” and DeMarignoli’s reference to Kotte in Ceylon as a place where he hadbeen in 1339. These and other and stronger authorities cited bythe District Judge afford strong proof of the existence ofJayawardenapura long anterior to the reputed buildilng of it byAlakeswara. If then Jayawardenapura was in existence in 1325,and if, as Colonel Yule says, it was a royal residence about 1314,what more likely than that either of the two Bhuwanaka Bahuswho, as stated above, was possibly the Sinhalese King in 1325,was temporarily or otherwise resident there, although hischief seat of government was elsewhere. Then, there is theAmbulugala sannas granted by King Bhuwanaka Bahu atJ ay awardenapura in Saka 1254, equivalent to 1332 a.d. On thewhole, I am not disposed to attach much importance to thecontention that Kotte was not in existence in 1325 or that therewas no king by the name Bhuwanaka Bahu at that time to issuea sannas from Kotte. I think that some of the other groundsurged tell with greater effect against the genuineness of thesannas, and I shall now proceed to deal with them. The sannasrecites (to put it shortly) that King Bhuwanaka Bahu of Kotte,c. having heard that Suriyahetti Mudiyanse of thq Telegu countryhad landed at Ponparippuwa, sent Suriyahetti Mudiyanse amessage, and the Mudiyanse thereupon, thinking it right th&t heshould ” show himself to and bow down before the kingafter offering presents,” presented to the king sixty Viliya (moreprobably Vilisa) kurun, and one hundred and twenty pure silver
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, Pereira, J.
kurun and a white milch cow with calf, and the king thereupon 1905,bestowed on him the title Telangapatha Suriyahetti Adicari Aug. 28 toMudiyanse, and granted for his ” belly-increase ” the tank called
Addipola. We have absolutely no facts regarding the position
and rank of the grantee in his own country. If the opinion ofHigh ‘ Priest Dharmarama—a witness called by the plaintiffs—isto be relied on, the thinness of the copper-plate on which thesaunas is written is evidence that the recipient of the royalbounty was not a person of very high rank; and yet his veryarrival at Ponparippuwa is said to have concerned the king somuch as to induce him to send him a message. If the visitorwas of such importance as to merit royal recognition in thatway, the thinness of the copper-plate on which the saunas iswritten is ■ altogether unexplained. The District Judge seernsto think that the granteewas “ anadventurerfromIndia/’
However that may be, if the story is true, he was certainly wisein his generation to part with his kurun and white cow, forthereby he secured for himself “ belly-increase ” for seons uponaeons during which (to use the descriptive words of the saunas)the sun, moon, earth,andsky shouldexist; butthereappears
to be too much 11 give and take ” in this transaction to sustainconfidence in the truth of the story, and it is not very clear that •gold, and silver kurun were presents befitting the dignity ofroyalty in those times. “ Sannases,” as stated by Mr. Bell(see page 91 of his Archaeological Report), ” were issued bySinhalese kings either to religious bodies or individual priestsor laymen usually to obtain merit in accordance with Buddhisticdogma or in acknowledgment of particular services to theState.” There are a few instances of grants made to artizans inrecognition of their skill, some of whom have on such occasionspresented specimens oftheir workmanship to theking.Among
the presents mentionedinthe saunasin questionare a certain
number of Viliya or Vilisa kurun. These words afford somehelp in the solution of the question before us. Mr.- Bell seemsto think that Viliya means King William IV. He does notappear to say so with much confidence* He merely says“ Viliya kurun I take to be the crown piece of William IV.”
I am inclined to think that this derivation is too far-fetched.
No British sovereign is referred to by the Sinhalese by the merecontraction of the name in that way. Mr. Bell himself has notfheaud of crown-pieces of the reign of Queen Victoria or any ofthe earlier sovereigns being referred to by any contraction of thetiame of the sovereigns being coupled with the word kurun.
There is little doubt that the word Viliya, • or more probably
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1006.
Aug. 28 toSept. 1 amiSept. 8.
Pbreira, J.
Vilisa—(it is difficult to say which it is in the sannbi, there beingmuch similarity between the terminal Sinhalese letters yayatutand aayanu of these words)—is a mere contraction of the wordVili8ianu. That is the evidence of the plaintiffs’ witness, HighPriest Dharmarama, and Mr. Crown Counsel Fernando did nothesitate to accept the correctness of that derivation. ‘Now,Viliaianu is not a Sinhalese word—at any rate not a word thathas come down to us from ancient times. High Priest Dharma-rama has not found it in any book. It is a word of very recentorigin, and may, as Mr. Crown Counsel Fernando suggests, bea mere corruption of the Italian word Veneziano, which Iunderstand is the, name of an Italian gold coin. However thatmay be, the word, as observed already, is of recent origin.
It is common in colloquial Sinhalese, and is presumablya corruption of some foreign word- Then, as to the word kurun—that too is not a Sinhalese word of any antiquity. There is nopretence that it is Tamil or Telegu. Any way, the learnedDistrict Judge who, I have no doubt, knows whether that is so,has given us no -information on the subject. The derivationattempted by High Priest Dharmarama is fanciful. He attemptsto derive it from the .Sanskrit Karshapana, but he admits thatthe Sinhalese word actually derived from it is Kahavanu.Where then is the room to wedge kurun in? It is a word ofvery recent origin. If it was a word in use in the time of theKotte kings, such an able scholar as Mudaliyar Simon de Silvamust know it. The Sinhalese language has been handed down tous With a completeness that is astonishing. From about the timeof Pandita Prakrama Bahu III, scholars and poets (among themcertain Kings, Queens, and Ministers of State) have shown restlessactivity in vying with one another to reach high excellence inliterary effort, and the literature that has come down to uscompares favourably with that of any other country in thecivilised world. If the two words under consideration werewords in use when Jayawardenapura was the seat of government,they must be found in the writings of that period or of latertimes. Their absence in those writings shows that there were no
l
such words then in use. Kurun is no doubt a corruption of theEnglish word “ crown.” The English crown-piece was a some-what rare coin in Ceylon even before the introduction of thecoins that are now current in the Island. The word “ crown ”was twisted by the Sinhalese into kurun or kuruma to signify it.The word having been originally applied to the crown-piece,which, as I have observed, was rare, its application graduallyextended to other rare coins and foreign coins, and hence those
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‘who were responsible lor this aannaa would appear to have used 1W8-it to mean coins which they imagined were brought over bySuriyahetti Mudiyanse from the Telegu country, forgetful or igno- Sept. 8.rant of the fact that the word was of recent origin, and its usej.
would lead to the detection of the forgery. There is one other wordwhich satisfies me that the aannas is not genuine, and that is Kotteafter the King’s name. The King is referred to as “ BhuwanakaBahu of Kotte.” In the first place it is clear that, if he was oneof the Bhuwanaka Bahus anterior to Bhuwanaka Bahu V., hispermanent seat of Government was not Kotte. The aannaa doesnot purport to have been granted at Kotte, but by King BhuwanakaBahu of Kotte. That is a very unlikely descriptiQn of the king.
In the next place the word Kotte would not have been used. It ismerely a word meaning “ fort. ” The city had its distinctivename Jayawardenapura. It must have been commonly spokenof as the Kotte, as perhaps the principal fortress of the Island wasthere. It must have been thus referred to by foreigners, andindeed the word has now passed into a name, and ancient Jaya-wardenapura is now called Kotte in the same way as Kandy, theSiriwardenapura of the Sinhalese kings, is at the present daycalled by the Sinhalese Nuwara (city) or Maha Nuwara. In theGanegoda aannas by Bhuwanaka Bahu V., in the Beligala aannaaby Sri Prakrama Bahu VI., and in the Devundera Dewala sonwosby Wijaya Bahu VH. the city is referred to as Jayawardenapura orJayawardena Kotte. The reference in the aannaa in question tothe city by the word Kotte shows that the aannaa is a manufactureof modem times after that word had actually lapsed into a namefor Jayawardenapura of ancient times. I do not attach muchimportance to the absence of the initial “ Sri ” in the aannaa at itscommencement. It is possible that like many other letters it hasdisappeared from the sennas. Besides, it is mentioned twice inthe body of the aannas immediately before the word ” aannaa. ”
But the fact that the writing is modem instead of being thecharacter in vogue at the period is a more serious’ objection..
Anybody examining the aannaa cannot fail to see that such lettersas can be deciphered are quite modem in form *and style. I think .complete reliance may be placed on Mr. Bell’s opinion on thispoint. On the whole I think there is abundant reason forconsidering that the aannaa ‘ is not genuine, and I hold with theDistrict Judge, though for reasons different in some respectsfrom his, that it is a forgery. ‘ Before quitting this part of the caseI must express my indebtedness to the learned District Judge forthe help I have derived from the vast amount of historical lorethat he has exhumed and set forth in his judgment.
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1906.
Aug. 28 toSept. 1 andSept. 8.
Fnrau, J.
The only question that remains is whether the plaintiffs havehad prescriptive possession of the lots specified above. Certaindocuments have been produced by the Crown with the objectapparently of showing that certain parcels within the disputedarea were regarded by two at least of the claimants as belongingto the Crown, namely, two petitions by two of the claimantswhereby they apply to be allowed to purchase certain parcels ofland near or in Addipola. In my opinion it has not been satis-factorily shown that these claimants intended by these petitionsto refer to any part or portion of the lands now in claim. Nodoubt, plans have been produced to locate the parcels applied for,but in strict law this location has not been brought home to iheknowledge of either of the claimants concerned. On the contrary,one of them says that the land he applied for was land outsideAddipola, and when the surveyor came, purporting to act inpursuance of his petition, to survey the land applied for andactually surveyed land within the claim, he informed the Arach-chi that he did not want the land. In my opinion it has notbeen shown that either these documents or the register of permitsissued for the cultivation of Government chenas, produced by thedefendant, in any way bind the plaintiffs or conclude them inrespect of any rights that had to be adjudicated upon in this pro-ceeding. In approaching the question of prescriptive possession,the District Judge deplores the supposed unfavourable positioninto which the claimants are thrown by the Waste Lands Ordi-nance. That is an attitude that, in my opinion, is not to beapproved. Questions as to the expediency or inexpediency, thejustice or injustice, of this legislation had, I suppose, to be can-vassed at a different time on a different arena. We have to-administer the law as we find it. As stated by Jessel, M.R., inBunting v. Sargent (13 C. D. 335), “ a Judge has nothing to dobut to administer the law as he finds it, ” and protestations by aJudge against the supposed injustice or severity of a law, oneach occasion he is called upon, to administer it, are not onlyunavailing but calculated under certain conditions to producemischievous results’. Rightly or wrongly, the Legislature has placedclaimants under the Waste Lands Ordinance in the position ofplaintiffs, however favourable or unfavourable that position maybe, and if they base their claims on prescriptive possession theburden of proving such possession rests on them as plaintiffs.In the present case the only evidence of prescriptive possessionis practically that of the witness Punchirala. If a statement bythe plaintiffs’ witness Andiralla Appuhami is to be accepted asevidence, the plaintiffs’ claim to prescriptive rights must be
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1005.
deemed to have wholly failed. The statement I refer to is that Aug 28 toat the end of his cross-examination: “ I only remember that the Sep. landohenas of Addipola were cultivated at Grown rates, not private Sept‘8’rates.” I shall, however, not attach much importance to this Pb*biba*statement, but proceed to examine the other evidence. Thatevidence amounts to no more than, this—that some twenty familiescomposed of an indefinite number of persons claiming to bfe thedescendants of Suriyahetti Mudiyanse have lived in the villageAddipola for very many years, and that individual members ofthese families have for upwards of thirty years cultivated suchportions of land in the village as they chose and at such timesand intervals as were found to be convenient. There is noevidence of the possession of these lands by Suriyahetti Mudiyanse- himself. Of course such evidence could not be available. Thedescent of any of the claimants from Him has not been traced.
The exact relationship of the claimants among themselves hasnot been established, nor have they shown their relationship toany of their alleged predecessors in possession of these lands.
The families, I take it, are composed of men, women, and children,a large number of whom, I presume, are related to or connectedwith those who claim to be the lineal descendants of SuriyathettiMudiyanse by marriage. No individual members of these familieshave*been shown to have had possession of any particular allot-ment of land now in question, either actually or constructively,
■ during the prescriptive period, and I fail to see how any one orother of the claimants can be said .to have acquired prescriptiverights in respect of these allotments. The case at page 83. ofVanderstraaten’s reports has been “cited to us. There, thereseems to have been very clear and precise evidence of possessionfor thirty years, and (proof of possession for a third of a centurybeing then necessary under the Roman-Dutch Law) the Court heldthat, in the circumstances, possession for the short additionalperiod necessary to make up the third of a century might fairlybe presumed. In the present case there is no clear and preciseevidence of possession at all. The individual ^possessors and theportions of land possessed can only be evolved by an effort of theimagination of which, I confess, I am not capable. The brute factssworn to by the witnesses do not help me to decide in favourof the plaintiffs. I confess I cannot Bee in the village population ,of Addipola that reflex of .the *’ Teutonic Township M or of an” organized, autonomous, self-acting group of families ’’ that theDistrict Judge has seen, nor do I hear that ” echo from far-offtimes ’* that he has heard. I am left with a few dry facts to arriveat a’ decision, and I can only say that they do* not permit me to
1005*
Aug. 28 toSept, landSept. 8.
Fhbbxra, J.
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hold that the plaintiffs have had such possession or enjoyment.as is necessary to give any prescriptive rights in respect of the*lands in claim.
On the minor issues in the case I agree with the District Judge.I would set aside so much of the judgment as dismisses the-reference as regards lots other than those specified in the decree rimd declare that the Crown is entitled to the forty-eight lots*specified in the reference, and give the defendant cost in both.Courts.
Wendt J.—I agree.
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