( 347 )
Present: Middleton J. and Wood Renton J.
DON ANDRIS v. JAMESHAMY.
232—2). C. Tangalla, 1,116.
Crown land—Presumption as to Crown property—Extensive jungleadjacent to cultivated land—Appeal—Refusal to frame an issue.
The principle that the Crown is not to be presumed to be the. owner of scraps of uncultivated land adjacent to the cultivatedland belonging to its subjects can find no application where theextent cultivated is a small portion, as compared with the unculti-vated land.
The refusal by a Judge to frame an issue, the determination ofwhich depends on vivd voce evidence, is an order which underordinary circumstances ought to be made the subject of an im-mediate interlocutory appeal.
fJIHE facts are set out in the judgmentBawu, for the defendant, appellant.
Sampayo, K.C. (with him Balasingham), for the plaintiff,respondent.
Walter Pereira, K.C., S.-G., for the Crown.
Cur. adv. vult.
July 27, 1911. Wood Renton J.—
The facts of this case are clearly set out in the judgment of thelearned District Judge, and I do not propose to repeat them. Aftercareful consideration of the arguments on both sides. I havemyself come to the following conclusions. I think that the identityof the land in suit has been clearly made out. The evidence shows,that at the date of its being sold by public auctioii by the SettlementOfficer, namely, on July 20, 1909, it was noLland of a characterwhich could give rise to the presumption in favour of the Crownenacted by section 6 of Ordinance No. 12 of 1840, The land insuit—lot No. 7—was no doubt part in one sense of lot 6. Buteven if the District Judge is right in the opinion that he expressedthat if lot No. 6 had been in dispute the defendant-appellant andhis predecessors in title had made out in regard to it a title byprescription against any Crown claim, that finding does not concludethe case in the appellant’s favour as regards lot No. 7, which is landof a different character, and has been subjected to different treat-ment. The principle enunciated by Lawrie J. in Saibo v. Andris,1
1 (1S9S) 3 N. L. B. 218.
( m )July 27, toil that the Crown is not to be presumed the owner of scraps of unculti-vated land adjacent to the cultivated land belonging to its subjects,can find no application in the present case. Lot No. 7 is not aDon Andris scraP of ,and as compared with lot No. 6. It consists of 8 acresv. James-2 roods 3 perches, whereas lot No. 6 comprises only 1 acre 2 roods
homy 30 perches. Although lot No. 7 was not at the date of its sale bythe Settlement Officer land which could give the Crown the benefitof the provisions of section 6 of Ordinance No. 12 of 1840, it wasundoubtedly chena land originally, and the chena permits producedat the trial clearly prove an acknowledgment of the title of theCrown to portions of this land by a vendor to the appellant Welli-gamage Baba, by Kandabige Dingi Appu, one of his co-owners,by his brother Pedris, and by his father Abeyhamy, within periodsof time which negative the acquisition of any prescriptive title tothe land by the appellant.
At the trial the learned District Judge was invited to frame anissue as to whether under the common law the appellant wasentitled to compensation for improvements. Counsel for the re-spondent objected on the ground that that question had not beenraised in the pleadings, and the matter seems to have been droppedwithout any formal order having been made in regard to it by thelearned District Judge. I can find, at least, no such trace of suchan order in the record. If the appellant regarded the matter as ofimportance, he might have pressed the Judge for a formal ruling onthe question, and have appealed at once if that ruling was adverseto him. The refusal of an issue of this kind, the determination ofwhich depends on viva, voce evidence, is an order which, underordinary circumstances, ought to be made the subject of an imme-diate interlocutory appeal. The point is not taken in the petitionof Appeal, and it was raised only at the close of the appellant’sarguments before us. There is no evidence in the record of anyimprovements having been effected by the appellant of such acharacter as to justify us in sending the case back for furtherinquiry and adjudication on that point now.
I would dismiss the appeal with costs.
Middleton J.—I entirely concur.
DON ANDRIS v. JAMESAMY