( 357 )
Present: Fisher C.J. and Driteberg J.
DINGIBI BANDA et al. v. PODI BAND ABA.
477—D. C. Eatnapura, 4,410.
Waste Lands Ordinance—Admission of claim—Absolute title—Claim onbehalf of co-owners—Ordinance No. 1 of 1897, s. 4 (2).
Where an order is made under section 4 (1) of the Waste LandsOrdinance containing the simple admission of a claim,—
Held, that the order embodying the admission did not giveabsolute title to the claimant.
Kiri Menika v. Appuhamy 1 distinguished.
PPEAL from a judgment of the District Judge of Batoa-pura.
H. V. Perera (with Dereniyagala), for plaintiffs, appellants.
H. H. Bartholomew, for defendant, respondent.
October 21, 1927. Fisher C.J.—
I have read the judgment of my brother Drieberg, with whichI entirely agree. I would only add that the respondent appearedbefore the Settlement Officer and laid claim to the land expresslyon behalf of himself and his co-owners. There is nothing in theWaste Lands Ordinance to make it unlawful or improper for oneof several co-ownerg to make a claim on behalf of himself and hisco-owners, and when he does so I think the co-owners must beregarded as persons making claim under the Ordinance.
This action was brought for the partition of a land 40 acres and11 perches in extent. The plaint alleged that it was the property of.associated husbands, Appuhamy and Mudiange. The 1st plaintiff-appellant, the 2nd plaintiff-appellant, and the 6th defendant,the respondent, are their children. The other parties derive theirtitle from the three other children of these two persons.
The respondent admitted the pedigree filed with the plaint, buthe denied that Appuhamy and Mudianse were the owners of theland; he pleaded that the land had been dealt with under section4 (1) of the Waste Lands Ordinances of 1897, 1899, and 1900, andthat he had been declared the purchaser of it. * This is however awrong description of what was done.
1 (1916) 19 N. L. R. 298.
( 358 )
After recording the evidence of the Reference Clerk and examin-ing the documents showing the dealings with this land, the learnedDistrict Judge held on the authority of Kiri Menika et al. v. Appu-hamy et al.1 that the respondent had acquired absolute title to theland and he dismissed the action.
It is necessary to examine fully how this land was dealt within the proceedings under the Waste Lands Ordinance.
By Proclamation (D 1) of March 24, 1911, 1,900 acres in the villageof Marapona were proclaimed under section 1 of the Ordinance.On May 3, 1911, the respondent by his letter P 1 claimed thathe- and his brothers were the owners of certain panguwas in thevillage, that he had documentary evidence to prove their right,title, and interest in them, such as notarial deeds, tvatdorus, &c.,and concluded, with a prayer that the Settlement Officer shouldinquire into their rights to these panguwas and “ do justice.
This petition was treated as a claim and there was an inquiry,at which the respondent said that he claimed by inheritance.He sought to prove that these were ancestral lands by the pro-duction of* a registered ola grant by Pileme Talawe to an ancestorof his.
On January 29, 1912, the respondent and the Settlement Officerentered into an agreement (6 D 4) under section 4 (1) of theOrdinance; by this the Settlement Officer agreed to settle a 10-acre lot as private property outside the Waste Lands Ordinanceand to declare the respondent the. owner of an allotment of 40acres more or less, shown roughly as No. 16 in lot 31 in the sketchattached to the notice. This is the lot in dispute and now appearsas lot 31ch of 40 acres and 11 perches in the published order. Therespondent agreed to withdraw all claims to the remainder of thelands in the notice, and the agreement was further subject to theclaims of all the other claimants being withdrawn or dismissed byjudicial decree or settled outside the Ordinance.
On January 18, 1918, the order made under section 4 (1) of theOrdinance was published; this order (6 D 5) is in the form of asimple admission of the claim of the respondent to lot 81ch;it contains no reference to the agreement, and deals only with thislot.
On February 8, 1918, another order (6 D 6) was published settingout the agreements entered into with the several claimants, amongthem the respondent, and declaring to be the property of theCrown the land claims to which had been withdrawn. This ordercontains no reference to the order 6 D 5.
At the trial the learned Judge made the following note: “ Thepoint for decision now is whether this land vested absolutely in
1 (1916) 19 N. L. R. 298.
( 359 )
the 6th defendant in terms of the settlement' published in theCeylon Government Gazette No. 6,920 of January 18, 1918,” and inhis judgment he held that the order had that effect.
Mr. H. V. Perera, for the appellants, questioned the correctnessof the decision in Kiri Menika et al. v. Appuhamy et al. (supra);it is not necessary to go into that question, for assuming the correct-ness of the principle in that case as explained in the later caseof Gunasekera v. Silva et al.,1 viz., that it applied only t.owhere the admission of a claim proceeds upon an agreementof mutual concession between claimant and Crown, the admissionin 6 D 5 cannot be treated as one of that nature.
The order 6 D 5 was a simple admission of the respondent’sclaim.
Section 4 (1) provides for two modes of dealing with a claimother than cases where an order declaring land to be the propertyof the Crown with the special effect of section 2 (2) is provided for.The Settlement Officer can either admit the claim or enter intoan agreement in writing with the claimant; the scope of thisagreement is defined; it extends to the admission or rejection ofthe claim wholly or in part, or for the purchase of the whole Orpart of the subject of the claim. An order is then made which” shall embody such admission or agreement.”
Sub-section (2) provides that the order published in the Gazetteshall be " final and conclusive ” and that the Gazette containingthe order shall be “ conclusive proof ” of the admission or agreement,When there is a simple admission of a claim the ruling in KiriMenika et al. v. Appuhamy et al. (supra) has no application andthe claimant does not get absolute title by the order embodyingthe admission. Gunasekera v. Silva et al. (suprra).
Is it possible then to import into the simple admission of claimin the order 6 D 5 the fact of the agreement and with it the radicaldifference in its effect following on the decision in Kiri Menikaet al. v. Appuhamy et al. (supra) when the order contains no referenceto the agreement? It appears to me impossible to do so if anyeffect is to be given to the words ” final and conclusive ” and“ conclusive proof ” in section 4 (2), and when the clear distinctionwhich the section draws between an admission and an agreementis remembered. For this reason I am of opinion that the order6 D 5 does not confer absolute title on the respondent.
If this is so, the later publication, 6D 6, cannot affect that which6 D 5 had already made final and conclusive, and apart from this,though 6 D 6 recites the agreement regarding 31 ch, the order ordeclaratory part of it has reference only to the lots declared to bethe property of the Crown.
29/271 (Wi) 4 C. W. R. 220.
( 300 )
Further, the lot 31ch is treated differently in the two publica-tion; in 6 D 5 the Crown admits the title of the respondent;6 D 6 recites an agreement that he should be declared the owner.Regarded as a mere admission of the claim of the respondent it isnot easy to see how 6 D 5 can prejudicially affect the rights ofthose on whose behalf he avowedly claimed.
We have called for and examined the record of Kiri Meniha et atv. Appuhamy et al. (District Court,, Kegalla, No. 3,892); in that casethere was an agreement regarding two lots, 33 and 33a, by whichin consideration of the claimant withdrawing other claims theSettlement Officer agreed to declare him the owner of lot 33 andto declare him the purchaser of lot 33a on payment by hirn of theprice on an appointed day. The orders were published in thesame issue of the Gazette, but separately; that regarding 33a wasnumbered 36; it recited the agreement to purchase, the paymentof the price, and declared the claimant to be the purchaser; itcontained no reference to lot 33. The order regarding lot 33 wasnumbered 37 and was a simple admission of the claim withoutany reference to the agreement. It was held that the claimant gotabsolute title to both lots; the difference in the terms of the ordersand the question whether the order regarding 33 could be lookedupon as made in pursuance of an agreement which was not statedin it were not considered.
The judgment appealed .from is set aside, and the case remittedfor trial on the footing that the order 6 D 5 does not confer absolutetitle on the respondent.
The respondent will pay the appellants their costs of the appealand of the contest in the District Court.