111-NLR-NLR-V-22-FERNANDO-v.-HENDRICK-et-al.pdf
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Present; De Sampayo J. and Schneider A.J.
EERNANDO v. HENDRICK et al.
86 and 87—D. C. Matara, 8,418.
Proceedings under the Waste Lands Ordinance—Decree entered of settle-ment declaring certain lots property of the Crown—Partition actionfor remainder—Sale by some claimants before waste lands case—Does decree in waste lands case wipe out title of vendees f
In a proceeding under the Waste Lands Ordinance a settlementwas arrived between the claimants and the Crown, and decree wasentered declaring certain’lots to be the property of the Crown andthe rest private property. Thereafter an action was instituted forthe partition of the portion declared to be the property of theCrown. The appellants claimed shares under deeds executed bysome of the claimants prior to the proceeding under the WasteLands Ordinance. The District Judge refused to admit any deedsprior to the decree.
Held, that they were admissible in evidence to prove the appel*lants’ title.
“ In reality the decree in favour of the claimants in the wastelands case must be held to enure to the benefit of those to whomthey transferred their rights previously.**
r |^HE facts appear from the judgment.
Keuneman (with him Croos-Dabrera), for the appellants in No. 86.
E. W. Jayawardene (with him M.B. A. Coder), for the appellantsin No. 87.
Cooray, for the plaintiff.
September 27, 1920. De Sampayo J.—
This is an action for the partition of a tract of land shown in theplan filed in the case. There are two appeals in this case. Inappeal No. 86 the appellants are the eighth defendant, the eleventhto the nineteenth defendants, and the twenty-sixth defendant.
It appears that the title which they set up in this case was derivedby purchase from some claimants in a waste lands proceeding. Itappears in 1900 the Crown took steps under the Waste LandsOrdinance to have it declared that certain tract of land was theproperty of the Crown. In connection with it a reference was madeto the District Court, and the claimants as plaintiffs sued theGovernment Agent claiming the land as private property. Butthere was a settlement arrived at between the claimants and theGovernment Agent, the terms being that certain lots Bhould bedeclared the property of the Crown, and the rest of the land to be
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private property. A decree was entered in these terms. Thepresent action is for the partition of the lots whioh were declarednot to be the property of the Grown. The appeal of the appellantsin No. 86 has reference to an order of the District Judge, by which heexpressed his determination not to accept deeds in favour of theappellants which were prior to the decree in the waste lands pro-ceedings. It appears that the appellants themselves did not oomeforward as claimants in the waste lands matter, but their vendorsdid. The idea involved in the District Judge’s order appears to bethat, notwithstanding the deeds executed by these claimants infavour of the appellants, the decree had the effect of wiping out anytitle which vested in the appellants, and the claimants, by virtue ofthe decree, must still be regarded as entitled to the shares whiohthey claimed. I think this is an erroneous view. The real effectof the decree was to declare the Grown entitled to certain portions,and that the balance of the land belonged to private parties. Thetitle of the private parties inter se must be determined by otherconsiderations and upon evidence heard with regard to it.
In reality the decree in favour of the claimants in the waste landscase must-be held to enure to the benefit of those to whom theytransferred their rights previously. Consequently, I think theDistrict Judge ought to have accepted the deeds, and to havedecided the question of title upon these deeds and any otherevidence relevant to the question.
In appeal No. 87 the appellants are the sixth and seventh defend-ants. The sixth defendant appears to claim under the sixthclaimant in waste lands case, and the seventh defendant washimself the seventh claimant in that case. The point which I dealtwith as regards appeal .No. 86 arises in appeal No. 87 also, andshould, I think, be determined in the same way. That appeal is alittle more complicated by.the reference which has been made to thewritten terms of settlement submitted to the Court in the wastelands case.
On July 25,1900, the claimants, other than thesixth and seventhclaimants, filed a statement expressing their willingness that certainlots- specified amounting to 175 acres odd should be declared theproperty of the Crown, and that they themselves be declared theowners of the other lots. The sixth and seventh claimants werenot parties to that statement. But on July 26 another statement,to which all .the claimants were parties, was submitted to Courtpractically having the same effect, but slightly different in form.
For in that statement the parties, including the sixth and seventhclaimants, expressed their desire to settle the case On the terms thatthe lots comprising 175 acres odd should be deolared the propertyof the Crown; and that the'rest of the land alleged to be 200 acresin extent declared not the property of the Crown. It was objectedin the Court below that, in view of the previous statement of July 25,
1980.
Db SunxoJ.
Fernandov. Hendrick.
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1920b
Da BamtayoJ.
Fernando«. Hendrick
on whioh the decree is supposed to have been entered, the sixth andseventh claimants had no right, and were excluded by the decree.It seems to me that it was on the statement secondly referred to,namely, that of July 26, 1900, that the decree was entered byCourt. However that may be, it is the decree itself that should belooked at in connection with the question raised. With regard tothat there is no question that the decree was in favour, not only ofthe other claimants, but'also of the sixth and seventh claimants,for it runs that the plaintiffs (otherwise the claimants) be declaredentitled to the lots specified corresponding to the land now sought tobe partitioned. I think in regard to both these sets of appellantsthe District Judge’s order is erroneous, and in my opinion heshould have heard the respective claims on their merits and deter-mined the question of partition accordingly. I would set aside theorders appealed from, and send the case back for proceedings in duecourse. There is no need to make any order as to the costs ofappeal, because the District Judge at the conclusion of the orderstated that it was his own view which he gave effect to, and not anyobjection raised by any of the parties.
.Schneider A.J.—I agree.
Semi back.
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