DIAS v. SPECIAL OFFICER

034-NLR-NLR-V-30-DIAS-v.-SPECIAL-OFFICER.pdf


( 129 )
Present: Dalton and Drieberg JJ.1928
DIAS v. SPECIAL OFFICER.
60—D. C. (Inly.) Batnapura, 4,622.
Waste Lands Ordinance, 1897—Presumption in favour of Crown—
Nature of proof required in rebuttal—Lekam mitiyas—Refusalto produce—Evidence Ordinance, s. 123—Ordinance No. 12 of1840. s. 6.
In a proceeding under the Waste Lands Ordinance the pre-sumption created in favour of the Crown by section 24 can onlybe rebutted in the manner indicated by section 6 of OrdinanceNo. 12 of 1840.
Section 24 of the Waste Lands Ordinance is not inconsistentwith the provisions of the earlier enactment.
Kiri Banda v. Government Agent, Sabaragamuwa,1 followed.
No adverse presumption can be drawn from the refusal of theGovernment Agent to produce registers known as lekam mitiyaswhere the party demanding production has failed to take the stepsprovided by section 123 of the Evidence Ordinance.
T
HIS was a reference under section 5 of the Waste LandsOrdinance, the claimant being the plaintiff and the Special
Officer, the defendant.
The plaintiff claimed title to an undivided 2/5 of an undivided71 /84 of Kahatagahadeniyahena. The learned District Judge heldthat the land was chena and was situate in the Kandyan Provinces.
The main question argued in appeal was as to the manner in whichthe presumption created in favour of the Crown by section 24 ofthe Waste Lands Ordinance could be rebutted.
V. Perera (with D. E. Wijewardene), for plaintiff, appellant.—
The Waste Lands Ordinance, No. 1 of 1897, is self-contained andmust be read apart from Ordinance No. 12 of 1840. Section 24 (a) ofOrdinance No. 1 of 1897 states that “ all chenas …. shallbe presumed to be the property of the Crown, until the contrarybe proved.” Any method of proof is here contmplated, e.g., proofby the production of title deeds or by prescriptionIn Mudalihamy v. Kirihamy2 Bertram C.J suggested that it wasopen to a party to set up a plea of prescription against the Crownin proceedings under the Waste Lands Ordinance.
Equitable claims should be considered. See Hamine Elana v.Assistant Government Agent of Puttalam.3
1 4 .4. C. R. C!)* 24 X. L. R. 1.
3 23 A’. R. 230.
5–XXX.
J. X. 9487 (11,46)
( 130 )
1988.
JPw v.SpecialOfficer
In proceedings under Ordinance No. 1 of 1897 it is open to theJudge to adjudicate on the equitable claims of two plaintiffs. TheJudge is not restricted to an inquiry is to whether the land isCrown or not. He must make such order “ as he may considerjust and proper.”
3. Obeyesekere, Acting Solicitor-General (with Meruyn Fonselca, '
C.), for Crown, respondent.—Ordinances Nos. 12 of 1840 and 1of 1897 must be read and construed together. They are statutesin parii meleria.
“ Proved ” in section 24 (a) of Ordinance No. 1 of 1897 meansproved according to law, and the only method of proof availableto the plaintiff was that set out in section 6 of Ordinance No. 12 of1840, as the land is a chena situate in the Kandyan Provinces.
In Kiri Banda v. Government Agent, Sabaragamuwa (supra) thepoint was expressly considered. It was there held that section 6 ofOrdinance No. 12 of 1840 was not impliedly repealed by section 24of Ordinance No. 1 of 1897 and that the two sections were notinconsistent. See also Gamarala v. Vigors.l
Lelcam mitiyas contain evidence as to “ affairs of state ” withinthe meaning of section 123 of the Evidence Ordinance. Wherean official refuses to produce a lelcam mitiya, the aggrieved partyshould appeal to His Excellency the Governor.
In proceedings under Ordinance No. I of 1897 the Court hasmerely to determine whether the lands are Crown or not.
V. Perera, in reply.
October 15, 1928. Dalton J.—
This appeal arises out of a reference under section 5 of the WasteLands Ordinance, No. 1 of 1897, the claimant being the plaintiffand the Special Officer the defendant in the case. The noticerequired by section 1 was given on October 17,1924, and publishedin the Gazette of that date. The total area of all the land in thenotice was 271 acres situated in the village of Nedurana, but theclaim of the plaintiff related to a land called Kahatagahadeniye-henyaya, which is stated to be 4 amunams of paddy sowing inexte.nt.
Plaintiff’s original plaint sets out that by right of purchase, bydeed of transfer (P 12) of December 10, 1919, from Jeronis Peiris,he is entitled to an undivided 2/5 of an undivided 71/84 ofKahatagahadeniyehenyaya forming part of the land under reference.In his amended statement of claim he sets out a chain of titlerelating to these 71/84 shares from the year 1885. In both originaland amended claims he then refers to inquiries before and nego-tiations with the Settlement Officer prior to this reference. It is
> 3. A. C. Jt. 95.
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set out that Jeronis Peiris was offered 40 acres in respect of hisclaim, of which only 16 acres were offered to the plaintiff. In hisfirst claim, on the basis that Jeronis was not entitled to any morethan he sold to plaintiff, he asked that he be allotted the wholeof the 40 acres. This is subsequently amended. In his amendmenthe, after setting out his alleged title, states he has been offered16 acres and Jeronis Peiris has been offered 24 acres. He thenasks that he be allotted this 16 acres, but that the 16 acres includea portion of 4 acres which the Settlement Officer is stated to haveoffered to another claimant named Jayawardena Arachchi. Thisoffer is stated to have been made to Jayawardena Arachchi inrespect of a claim made by him upon an informal agreementbetween him and one Punchi Mahatmaya. This statement, itshould be added here, is not borne out by the evidence of theSettlement Officer. The claim adds that Punchi Mahatmaya’sinterest has passed in part to the plaintiff.
With regard to the prayer of the plaintiff, objection was takenat the outset of the trial to all the issues which related to nego-tiations before and offers by the Settlement Officer. Even if allthe allegations in respect of them in the statements of claim hadbeen proved, it seems to me the Court had no power to do whatplaintiff asked, that is, allot to him 16 acres of Kahatagahadeniye-henyaya, whether it included the 4 acres offered to JayawardenaArachchi or not. In negotiations between the parties, as is usualwhen action is taken under the Waste Lands Ordinance, offers aremade by the one side and considered by the other, the claims ofthe parties are also considered and sometimes the offers are accepted.An offer can presumably only be accepted by the claimant, if theoffer is one to give a good and valid title to the land offered, on thefooting that the land is Crown land and not the property of theclaimant. If the offer is not accepted and the negotiations fall throughthen both parties are where they were before and then it is open tothe claimant to prove that the land he claims is his, and is not theproperty of the Crown. The suggestion in the argument for theappellant, that the proceedings in a reference under this Ordinanceallow a sort of paternal inquiry or arbitration by the District Judgeto do what seems to him just and proper without being bound byany rules of proecdure save those set out in the Ordinance or byany provisions of the law of the land whether on a matter of evidenceor otherwise, has not been supported by any authority, nor wouldI expect any such authority to be found. In Hamine Etana v.Assistant Government Agent, PuttaJam,1 Bertram C.J. does pointout that the Waste Lands Ordinance is not an Ordinance intendedfor the bare determination of legal rights but that' its object wasthe equitable settlement of even undefined claims. But so far
1 23 N. L. R. 289.
1928.
Dalton J.
Diasv.
Special
Officer
( 132 )
1928.
Dalton J.
Diacv.
Special
Officer
as the Courts are concerned, dealing with questions.of law, as theplaintiff there failed to establish any title to land, she failed in heraction. He then goes on to consider the position of and treatmentof the plaintiff in that case prior to and during the proceedings,expresses a definite opinion, and then concludes that whether itmay be found possible to make any equitable consideration toplaintiff, either in connection with the land in question or otherland, is a matter for decision of authorities other than the Court.That is a state of affairs which sometimes arises in cases other thanoases under such an Ordinance as this. Pereira J. expresses thesame opinion in other words in Cooke v. Freeman.x The WasteLands Ordinance supplies special machinery for the adjudicationof these claims and, subject to the special provisions of the Ordinance,disputed claims come before the District Judge or Commissionerto be tried by him as an ordinary action between plaintiff anddefendant. Section 13 provides that except where the Ordinanceprovides otherwise, the Civil Procedure Code shall apply. Onthe claim before the Court the only issue the Court could try in myopinion was as to whether plaintiff was entitled to 2/5 of 71/84of Kahatagahadeniyahenyaya by virtue of the deeds set forth byhim. This works out, according to his evidence, at about 5 acres.
There is no provision in the special procedure allowed by theOrdinance for any answer by the defendant, which may be a hard-ship on the plaintiff. In this case, however, as presumably in allcases under the Ordinance, the answer is that the land is claimedby the Crown, but if plaintiff discharges the onus %vhich the statuteplaces upon him by directing that he shall be plaintiff in the actionthere is an end of the defence. The important question to bedecided in this case is what legal presumptions exist in favour cfthe Crown in such a case as this, and whether plaintiff has displacedthese presumptions by proper and sufficient proof to the contrary.
The evidence shows that the land—the subject of the reference—is in the Kandyan Provinces. The trial judge also finds that somuch of Kahatagahadeniyehenyaya as comes within the referenceis chena. That finding is contested by the plaintiff on his appeal.It was urged that there was no proof or no sufficient proof thatthe lands claimed by him, or at any rate the lot marked 3q, wasat the date material to these proceedings chena land. This lot3Q on plan D 5 coincides, with the exception of a strip reserved onthe east, with lot 1 on plan P 2. This lot 1 is area which is statedto have been offered to Jayawardena Arachchi and which plaintiffwished to be included in the 16 acres offered to him.
I do not propose to analyse again the evidence on this point.The trial judge has done so at considerable length. There isevidence to <»how that what are described by some of the witnesses1 8 N. L. It at pp. 270 ami 27S.
( 133 )
for plaintiff as a number* of plumbago pita on lot 1 were merelysmall holes, about 3 feet square on the surface, which were probablymade by neighbouring villagers, and that there was only one whichdeserved the name of “ mine ” on lot 1. Outside the land claimedby plaintiff there were however numerous abandoned pits, someof them large. In my opinion the evidence of J. S. Peiris andplaintiff on the subject of their mining ventures is far from con-clusive as to their ventures being carried out upon the land nowclaimed by plaintiff. They say that Mr. E. L. F. de Soysa was inthe venture, that the licence to mine was in his name and Peiriswas called his manager. He was not called as a witness, but thereis evidence to show that he had obtained mining rights on landbelonging to or said to belong to the Ellawala family.
With regard to the pits on lot 1, there is evidence to show thatit is not unusual for villagers to mine in areas cleared for chenacultivation. It is not questioned that up to 1908 the land wascultivated for chena crops. Peiris, mining operations, whereverthey were carried on, took place between 1909 and 1918, whenthey were abandoned. There is also evidence to show that thechena cultivation was not interfered with by the pits on lot 1.It was on lot 1 particularly that it was urged there had been nochena cultivation since 1908, but it is clear from the evidenceaccepted by the trial judge that the amount of mining for plumbagothere was far from being so extensive as plaintiff would try to makeout. It is around this lot that the dispute chiefly centres. In1923 Mr. de Saram describes lot 3q as a chena land with 6 or 7years’ growth of jungle, whilst in 1924 the Settlement Officer onhis inspection noted in his field book from his personal observations,although there was then no cultivation or occupation of lot 3q,that Kahatagahadeniyehenyaya was chena.
On the evidence before him, in my opinion, the trial judge wasfully justified in his conclusion that Kahatagahadeniyehenyayawas chena. I see no reason whatsoever to differ from his con-clusion on that point.
With regard to the ground of appeal based upon the refusalby the Government Agent to produce certain registers or lekammitiyas which are said to be in his possession, it is clear that,when the proctor for plaintiff in his letter (P 39) asked for anextract relating to the lands in Nedurana village he was askingfor a great deal that was quite unnecessary for his purposes, evensupposing that the register contained any entry in respect of theparticular land the subject of this reference. The statement ofinability to issue the extracts was followed by a summons toproduce. To this the Government Agent in his letter' to the Courtof September 30, 1927, replied that the documents are confidentialand that he was unable to produce them. On this letter no further
1928.
Dalton J.
Diasv.
Special
Officer
30/12( 134 )
1928
Dai/ton j.
Hiaav.
Special
Officer
action was taken by the plaintiff to compel production or toquestion the right of the Government Agent not to appear withthem on the ground put forward by him. If these records fallwithin those mentioned in section 123 of the Evidence Ordinanceand the provisions of that section are applicable, plaintiff couldhave applied to the Governor, but he took no further steps. Ifthe officer was actincg in the exercise of his public duty in refusingto produce these doouments, no such presumption can follow asto the contents of thse documents from the refusal of the witnessto produce them as Mr. Perera contends. It is admitted plaintiffwas quite ignorant as to whether the registers contained any entrythat could help him, and no provision exists we are told for hisbeing allowed to search them or any other puhlic records. Hemade no request to the final authority mentioned in the sectionand took no other steps as he could have done.
The land therefore claimed by plaintiff is chena land and withinthe Kandyan Provinces. The next question that arises is, whatpresumptions arise from those two facts, and how can they berebutted by the plaintiff. It is urged for plaintiff that, undersection 24 of the Waste Lands Ordinance, chenas are presumed tobe the property of the Crown “ until the contrary thereof be proved.The contrary can be proved, it is argued, by the production ofdeeds, and also by prescription for a third of a century. For thedefendant, who defends the action on behalf of the Crown, it isurged that under the provisions of section 6 of Ordinance No. 12 of1840 that presumption can only be rebutted by proof of a sannas orgrant for the same or of taxes, dues, or services having been renderedas set out in that section. This is the principal point arising onthe appeal.
It has been decided by a Bench of Three Judges in Attorney-Generalv. Punchirala 1 that in the case of chena lands in the KandyanProvinces title by prescription cannot be proved against the Crown.That was an action by the Crown for a declaration of title to certainlands. In the course of his judgment there de Sampayo J. says :—
“ So far as I can discover there is no trace of prescription in .theKandyan law, and with great respect I should say thatunder the Kandyan law the principle nullum temposoccurit regi was equally applicable …. Section 5 ofOrdinance No. 5 of 1852 provides that where the Kandyanlaw is silent on any matter arising for adjudication withinthe Kandyan Provinces for the decision of which otherprovision is not specifically made, the Court shall haverecourse to the law on the like matter in force withinthe Maritime Provinces. Consequently the law of pre-scription above laid down may be considered to have1 21 N. L. S. 51 at pp. 50 and 60.
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become applicable to the Kandyan Province. Thatbeing bo, if a question arose as to title to “forest, waste,or unoccupied or uncultivated lands ” within the meaningof section 6 of Ordinance No. 12 of 1840 or to chenas inProvinces other than the Kandyan Provinces, the privateclaimant might rebut the presumption in favour of theCrown by proof of prescriptive possession for a third of acentury. But the question now is as to chenas situatedwithin the Kandyan Provinces, and that depends on thoconstruction of the special provision in the same sectionwith regard to them.”
In Mvdalihainy «. Kirihamy,1 in which a question arose as towhether the presumptions enacted by section 6 of Ordinance No. 12of 1840 must be considered as having reference to the state of theland in question at the time when some dispute arises between theCrown and a subject, or whether they may be considered withreference to the state of the land at any time wihch may be materialto the title, Bertram C.J. expresses a doubt as to whether thereasoning he follows would apply to proceedings under the WasteLands Ordinance, as he says the material time there is the dateof the issue of the notice under section 1 subject to the retro-spective effect of section 24 (c). He then goes on to say:—
“ The presumption there enacted in section 24 (a) is merely forthe purposes of the Ordinance, and the object of anylegal proceeding under the Ordinance is to determinewhether the land in question at the date of the noticecame within any of the categories to which the presumphtion applies.
“ It may also be noted that the formula of thepr esumption iuthe Waste Lands Ordinance is not the same as theft insection 6 of Ordinance No. 12 of 1840, and; consequent lyif the reasoning of my brother de Sam payo (in whichLoos J. concurred) in Attorney-General v. PunchiraJa-(supra) is to be taken as expressing the law—a point onwhich I should like to reserve my own opinion—there isnothing to prevent a plea of prescription being set up tochena lands in proceedings under that Ordinance.”
With regard to these two cases, it seems to me that, having regardto the provisions of section 6 of Ordinance No. 12 of 1840, there isstatute law which, in respect of the Kandyan Provinces, in clearand explicit terms, provides for a certain presumption in respectof chenas which can only be rebutted upon proof to be adduced ina particular way.
1828.
Daltcot J„
Diaev.
Bpteiol
Offietr
24N.L.B 1.
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1928.
Diww J.
Diaev.
Special
Officer
When Bertram C.J. says that he doubts whether the reasoningapplied in this ease would apply to proceedings under the WasteLands Ordinance, it is to be remembered that the question with,which he is deeding is what is the material time. That, he pointsout, is the date of the issue of the notice under section 1. Hethen goes on to refer to the reasoning of de Sampayo J. in Attorney*General v. Punckirala {supra), which he says might justify a pleaof prescription being set up to chena lands in proceedings underthe Waste Lands Ordinance. I have carefully read that judgmentbut I am unable to find any reasoning there, taking the judgmentas a whole, which to my mind would satisfactorily support thatposition being taken up. Even if such reasoning be there, deSampayo J. comes to the conclusion that section 6 of OrdinanceNo. 12 of 1840 is a general enactment declaratory of the rights ofthe Crown, having earlier pointed out that if it had been intendedthat section 5 of Ordinance No. 5 of 1852 imported the law of theMaritime Provinces in respect of chenas into the Kandyan Provinces,the legislature would have been much more explicit in expressingtheir intention. That reasoning applies, it seems to me, just aswell to the provisions of section 24 (a) of the Waste LandsOrdinance.
It is true the formula of the presumption in the Waste LandsOrdinance is not the same as that in section 6 of Ordinance No. 12of 1840, but from the preamble of the former Ordinance it wouldappear that the principal purpose of the Ordinance is to providea means for the speedy adjudication of claims to forest, chena,waste, and unoccupied lands. This is confirmed on reference tothe various sections of the Ordinance itself. It is provided howeverby section 24 that certain presumptions shall arise. The materialpart of that section is as follows :—
24. For the purposes of this Ordinance—
(a) All forest, waste, unoccupied, or uncultivated lands and allchenas and other lands which can be only cultivated afterintervals of several years 6hall be presumed to be theproperty of the Crown until the contrary be proved.Having regard therefore to the words “ ' For the purposes of thisOrdinance ” it is argued that in the case of chenas in the KandyanProvinces the provisions of this section are inconsistent with theprovisions of section 6 of Ordinance No. 12 of 1840. In so far thenas section 6 provides that all chenas in the Kandyan Provincesare to be deemed to belong to the Crown except upon proof of asannas or grant for the same, it has been implicitly repealed, inso far as proceedings under the Waste Lands Ordinance are con-cerned, by the provisions of section 24 of that Ordinance.
( 137 )
It is admitted that the question has already been deoided byauthority against the interpretation contended for by appellant.In Kiri Banda v. Government Agent, Province of Sabaragamuwa,1Wendt and Wood Benton JJ. held that the later section was notinconsistent with the earlier enactment. Mr. Perera has notasked this Court not to follow that decision, but to reconsider itand refer the question to a Bench of Three Judges should we haveany doubt as to its correctness. After due consideration of hisargument and examination of the authorities I have not anydifficulty in following that decision, nor do I feel there is any justi-fication in referring it for decision to a higher Bench. The judgmentof Wendt J. is, it is true, brief, but to the point, if I may be allowedto say so. In the same year a similar case under the Waste LandsOrdinance came before Wendt and Middlteon JJ. (Gamarala v.Vigors 2). No question was raised for the appellant there thatsection 6 of Ordinance No. 12 of 1840 had no application in pro-ceedings under the Waste Lands Ordinance. The plaintiff was inpossession of a genuine ola for the land in question from a privateindividual. Mr. A. St. V. Jayewardene who appeared for himon the appeal argued, not that the presumption under section 24had been rebutted, but that the ola was a grant within the meaningof section 6 of Ordinance No. 12 of 1840. He admitted that it hadnever been suggested before that the words “ saunas or grant ”did not mean a royal grant, but he actually relied upon the provirionsof Ordinance No. 12 of 1840 rather than seek to show they had noapplication. That of course is no reason why the argument shouldnot be raised at a later date, but it cannot be so obvious as Counselwould now seek to make out.
Numerous cases have been cited subsequent to Kiri Banda v.Government Agent, Province of Sabaragamuwa (swpra), all of whichwere examined in detail in course of the argument. I can findnothing in any of them that is inconsistent or that expresses anydissent with that authority. For the major part, in proceedingsunder the Waste Lands Ordinance, when the question of chenasin the Kandyan Provinces is mentioned it seems to me to beunquestioned or taken for granted that section 6 of OrdinanceNo. 12 of 1840 still has the force of law for all purposes (e.g., PereiraJ. in Silva v. Kindersley3). Bertram C.J. in Hamid v. SpecialOfficer* a case which went to the Privy Council,5 in the course ofthe argument read the two sections together, whilst in HamineEtana v. Assistant Government Agent, Puttalam (supra), he speaksof the legal presumption created by Ordinance No. 12 of 1840being extended and intensified by the Waste Lands Ordinance.
• (1908) 4 A. C. R. 69.*17 N. L. R. 109.
» 3 A. O. R. 95.« 21 N. L. R. 150.
1028.
Dalton J.
Diaav.
Special
Officer
» 23 N. L. R. 150.
( 138 )
1928
Dalton J.
Dicta v.SpecialOfficer
It does not seem necessary to say more than this. There is how*ever one ppint I would wish to refer to in respect of the argumentput before us. It is admitted that section 6 either confers uponthe Crown or is declaratory of a very valuable right. I do notthink sufficient importance has been laid upon the word “ deem ”in that section. Whether it be the creation of a new right or thestatutory declaration of an existing right as would seem to be thecase, that right cannot be taken away by inference in a laterstatute, unless the terms used make the inference irresistible.Can it be said here that in section 24 the legislature has expressedits intention to deprive the Crown of its rights under section 6in explicit terms, or in such terms as make the inference irresistible ?(See Maxwell on Statutes, p. 102.) It is impossible in my opinionto answer that question in the affirmative. The two sections donot appear to me to be necessarily inconsistent as has already beenpointed out. It does not seem to me that the decision in Munasinghev. Assistant Oovernment Agent, Puttalam,1 gives any assistance onthis point in this case. For this further reason therefore I am also 'of opinion that the argument must fail.
The decision of the trial judge must be affirmed and the appealbe dismissed, with costs.
Dbiebekg J.—
I agree with the judgment of my brother Dalton.
On the question of the right of the appellant to establish titleby prescriptive possession I would refer to the case of Attorney-General v. Punchirala,2 where it was expressly held that section 5of Ordinance No. 5 of 1852 has no effect as regards chenas in theKandyan Provinces, because to hold that the law of prescriptionapplied to such chenas would be to contravene directly theprovision of section 6 of Ordinance No. 12 of 1840.
Section 5 of Ordinance No. 5 of 1852 introduced into the KandyanProvinces the law of the Maritime Provinces only in matters towhich there was no Kandyan law or custom applicable and “ forthe decision of which other provision is not herein specially made.”Until this date the Kandyan customary law, which was customarylaw in the strictest sense of the term, was in full force by virtueof the Proclamation of May 31, 1816, which enacted that—
“ the ancient laws of Kandy are to be administered till HisMajesty’s pleasure shall be known as to. their adoptionin toto as to all persons within those Provinces, or theirpartial adoption as to the natives, and the substitutionof new Laws and Tribunals for the Trial and Punishmentof His Majesty’s European Subjects, for offences committedtherein.”
1 13 N. L. R. 129.
’ 1.1909) 21 N. L. R. 51..
( 139 )
No general provision for the introduction of other laws was madeuntil the Ordinance No. 5 of 1852 was passed.
The Ordinance cannot possibly affect matters which were madesubject of legislative enactment in the interval.
The summary procedure of section 1 of Ordinance No. 12 of 1840became obsolete after a few years, but the provisions of section6 have consistently been treated as a test of Crown ownership forall purposes.
In Mudalihamy v. Kirihamy Sir1 Anton Bertram C. J. said :—
“It is impossible to contend {though the attempt has beenmade) that the presumptions of section 6 were intendedto apply only to the summary procedure of the first section.The Ordinance was a general enactment dealing with thewhole question of encroachments of Crown property,and the section was intended, not only to declare or definethe general law, but also to provide an instrument forenforcing certain particular provisions of the Ordinance.”
In The Ivies Estate Case (Appurala v. Dawson)2 Lawrie J. said :—
“ The application of the Ordinance No. 12 of 1840 to any case butthose originating by affidavit, &c., under the first sectionof the Ordinance has been disputed. My opinion is thatthe 5th and 6th sections of the Ordinance are declaratoryof the general law applicable to all cases in which theextent of the right of the Crown, or grantees from theCrown, is in question.”
In contests between a purchaser from the Crown and a thirdparty the right of the former to prove title in the Crown undersection 6 of Ordinance No. 12 of 1840 has always been recognized.This was so in the two cases which I have just cited, and thereare many such cases in the reports.
If therefore section 6 of Ordinance No. 12 of 1840 is a generaldeclaration of Crown rights in land, it is not easy to see how thepresumption referred to in section 24 of Ordinance No. 1 of 1897 canbe rebutted in any other manner than that provided in section 6of Ordinance No. 12 of 1840. The mere fact that Ordinance No. 1 of1897 does not state the means by which that presumption can berebutted cannot justify it being held that other means of rebuttal areallowed. The Crown cannot be deprived of the right of propertyconferred by section 6 of Ordinance No. 12 of 1840 unless theintention to do so is in explicit terms or is an irresistibleinference (Maxwell on Interpretation of Statutes, 6th ed., p. 224).
Appeal dismissed.
! (1893) 3 S. C. R. I. (Full Bench).
1928.
Drxebkrg>
J.
Diaev.
Special
Officer
1 (1922) 24 N. L. R. I.