005-NLR-NLR-V-19-GONAMERUWEWA-CASE.pdf
( 86 )
1906.
Present: Layard C. J. and Wood Renton J.
GONAMEBUWEWA CASE.
152—D. G. Anuradhapnra, 436.
Reference under . the Waste Lands Ordinance—Priest claming lands onbehalf of temple—Trustee appointed under Ordinance No. 6 of1889 refusing to act—Power of Supreme Court in appeal to allowa new trustee to intervene.
Upon a reference under the .Waste Lands Ordinance plaintiff,as priest of Qonumernwewa pansala, claimed on behalf of thetemple the land in dispute.
A trustee was duly appointed under the provisions of the Ordi-nance No. 5 of 1889, but he refused to act.
Held, ' that the plaintiff could not maintain this action; but theSupreme Court gave an opportunity to the committee of appointinga trustee for intervening in these proceedings.
rpBCE facts are set out in the judgment.
Domhorst, K.G. (with him E. W. Perera), for appellant.
C. M, Fernando, G.C. for the Crown, respondent.
January 19, 1906. Layard C.J.—
In this case, upon a reference under the Waste Lands Ordinance,the plaintiff, as the prieBt of Gonumeruwewa pansala, claimed onbehalf of the temple an extent of over 2,462 acres of land underand by virtue of a sannas.
The learned District Judge rejected the plaintiff’s claim, on theground that the claim to the land in dispute was settled by theCommissioners of Temple Lands under Ordinance No. 10 of- 1886,and that the register made by them shows that the lots now indispute were claimed from the temple land, and that such exclusionbars the claim made by the plaintiff on behalf of the temple.
I am inclined to think that the District Judge has taken a right °view of the provisions of that Ordinance; but as the plaintiff is notthe trustee of the temple’s lands, and has no legal title to the landsclaimed, I think it would be undesirable for this Court to decidethat question until the person interested in protecting the right ofthe temple has been made a party to this suit.
It appears from the judgment of the District Judge that a trusteehas been duly appointed under provisions of the Ordinance No. 5of 1889, but has refused to act. That Ordinance provides that onthe appointment of a trustee all property belonging to the templevests in him, and directs that such trustee may sue, under the nameand style of trustee of the temple for which he has been appointed,for the recovery of any property vested in him as such trustee underthe Ordinance.
( 37 )
It further provides for the election by the committee forthwith
1906.
Qonamcru-t oewa Case
of a fresh trustee, 'in the event of any person elected as trustee Layakd OJ.
refusing to accept office, and in case of necessity enables the com-mittee to make provisional arrangements for the performance ofthe duties of the office pending the election of a successor to theperson refusing to accept office.
The District Judge treats the Ordinance as “ moribund," what-ever that may mean, and says such being the case the plaintiff hada right to protect the interests of the temple. I cannot find anylaw to support this proposition, and the counsel who appearedbefore us were unable to cite any authority in support of it. It isobvious that the plaintiff cannot maintain this action, having nolegal estate in the land claimed by him. We think, however, thatthe committee should be allowed the opportunity of appointinga trustee to represent the interest of the temple before the declaratorydecree in favour of the Crown is affirmed by this Court.
Counsel for the Crown seemed to doubt whether we could, inappeal, make an order such as we now propose doing. Sub-section
of section 18 of the Waste' Lands Ordinance, under which we arehearing this appeal, appears to give us power to make such orderas we consider the justice of the case may require, and in view of theprovisions of section 6 of the Waste Lands Ordinance, it is clear thatthe officer sending a reference to the District Judge may not onlyin such reference mention the name of the claimants or claimant,but may also include therein the name of any person whom he thinkshas any interest in the land the subject of his reference. It is truethat such officer did hot think it necessary to name the trusteeof the temple; he undoubtedly, however, could have done so hadhe wished. We do not think we would be doing justice in thismatter unless we gave the committee the opportunity of appointinga trusted should they desire to' do so, and on such trustee beingelected, giving him the right, should he be advised so to do, ofsubstituting himself as plaintiff in this matter, and being heard insupport of the present plaintiff's claim in this action.
We therefore make the following order: that the decree of theDistrict Judge declaring the lots which are the subject of thereference to him to be the property of the Crown be affirmed, unlesswithin six months from the date of this order a duly appointedtrustee intervenes in this reference, and moves to be substituted forthe present plaintiff. In the event of a duly constituted trusteebeing substituted for the plaintiff, the District Judge must proceedto hear this reference de novo.
The plaintiff must pay the Crown all costs to. date, and a decreemust be entered declaring that he has no interests or title in thelands the subject of this reference.
„ Woon Renton J.—I concur.
8- –