HAMINE ETENA v. THE ASSISTANT GOVERNMENT AGENT, PUTTALAM

084-NLR-NLR-V-23-HAMINE-ETENA-v.-THE-ASSISTANT-GOVERNMENT-AGENT,-PUTTALAM.pdf


Present: Bertram CJ. and De Sampayo J,
1922.
HAMENE ETENA/e. THE ASSISTANT OGVEKNliENTAGENT, PUTTALAMl
10—D. a Chilaw, 6,428.
Waste Lands Ordinance, 1S97—Meaning of " Forest”—“ Waste "—“ Unoccupied "—“ Ohena -land ”—“ Uncultivated "-^Object ofthe Ordinance is not merely the investigation of legal-title—Equitable considerations to be taken into account—Customaryright of villagers to cut sticks—Communal rights.
The term “forest” in the Waste Lands Ordinance, 1897 (and InOrdinance No. 12 of 1840), most not be interpreted as meaning“ virgin primeval forest/*
The expression “ waste lands ” primarily denotes open countryin which there are few or no trees—land which "lies open, desolate,unoccupied, uncultivated.*9
A ohena land is land which either still is or within a reasonableperiod was under process – of periodical cultivation. —The mereintermittance of ohen&ing for some interval of time would notnecessarily destroy this character. ' Whether it has dime so in .any particular case is a question of fact. Land which was at onetime ohena, but has now been abandoned and left to lapse intojungle, though it was once ohena land, is ohena land no longer.
For the purpose of the yfaste Lands Ordinance land is consideredunoccupied, unless it has been both actually and uninterruptedlyoccupied for a period of five years prior to notice. The- word" occupied'99 is not used in the Ordinance in its ordinary sense,'andnot in the technical ’sense in which “ occupatio ” is used in Homanlaw.
By section 24 (c) of the Ordinance the term "unoccupied land"includes all land which at the time of the passing of the Ordinancewas not in the actual occupation of any person or persons.
' The Waste Lands Ordinance being an Ordinance intended notmerely for the bare determination of legal rights, but also for theequitable settlement of even undefined claims, the Courts in dealingwith cases under the Ordinance appropriately draw attention toequitable considerations, to which they themselves are not able togive legal effect/
rj^HE facts are fully set out in the judgment of the Chief Justice.
E. W. Jayawardene, for appellant.
V. Ml Fernando, G;C., for Crown, respondent.
24-_
Cur. ado. vuti.14-22/403
( 290 )
1922. .March 9» 1022. Bertram C.J.—
Hcmine Thifl Appeal arises in proceedings under the Waste Lands Ordi-Etena v. The nance (No. 1 of 1897). The case has already been the subject ofGtawmlw# criminal proceedings, and this Court, in an appeal in those proceed-Agent,ingg, referred the Grown to its civil remedy. A rei vindicaiio action
Pudalom wa8 undoubtedly contemplated by the judgment of this Court, but,in fact, the Crown has proceeded under the Waste Lands Ordinance.
I do not think, however, that the appellant has any grievance onthat account. There was, 1 think, no intention on the part of thisCourt to restrict the civil remedies open to the Crown. Moreover,proceedings under the Waste Lands Ordinance, if worked in thespirit with which that Ordinance was promulgated, afford an oppor-tunity for taking into account equitable considerations which aCourt of law must ignore. If such considerations escape the noticeof the special officer administering the Ordinance, there is anopportunity for drawing attention to them both in the DistrictCourt and in this Court, and in view of the recognized object of theOrdinance, this is an opportunity of which in appropriate casesadvantage may reasonably be taken.
A Court, however, must, in the first instance, decide the matteraccording to law, and as to the law in this case there can be nodoubt. -The ease depends on a legal presumption created by^Ordinance No. 12 of 1840, and extended and intensified by the WasteLands Ordinance itself. According to that presumption, all forests,waste, unoccupied, or uncultivated lands, andall chenas are presumedto be the property of the Crown unless the contrary thereof is proved.It is hardly contested that, if the presumption applies, the evidenceadduced on behalf of the complainant is not sufficient to displace it.Let us ascertain therefore in the first place whether the presumptionapplies.
The fullest, and, indeed, the only intelligent description of theland before us is that of Mr. Wait, who conducted the proceedingsunder the Ordinance, and who was at the time Assistant Govern-ment Agent at Chilaw. His description is as follows: “ When Iinspected the land I found lot 2 and lot 4 were fairly old jungle,from which most of the big trees had been cut. I found stumps,and there were two or three big trees on those lots more or lessadjoining the Gansabhawa path. The rest of the land was thickjungle, except in the south of lot 4, where the growth thinned awayas the soil was poor. There was a clearing of a few perches on thenorth-west comer of lot 4 . . . •. There was no cultivationwhatever on this land. Lots 2 and 4 were thick jungle, they werecertainly fifteen to twenty years old, and probably more. The bigtrees were more than thirty years old. There were no signs ofoccupation. There were one or two natural water-holes; theycannot be called wells. I saw only* two stumps of old trees. , Iconsider this land to be jungle which has not been cleared for years
( 291 )
and yean and years. There could not have Been chena for a veryconsiderable length of time, at least fifteen or twenty years.”Another witness, the local Mudaliyar, said: u The jungle appears tobe about thirty-five or forty years old …. I have alwaysregarded the land as Crown forest . . . Another witness,the Vidane Arachchi, said: “ The big trees are about seventyyears old … . from the height and thickness I made outthat some trees were seventy years old. Even on the roadsidethere is a kahata tree—very high and about seventy yearsold.”
Beading Mr. Wait’s description and comparing it with theformula in which the presumption is embodied, one feels that itcould scarcely be possible to imagine a piece of land to which boththe letter and the spirit of that formula, under one head or another,was more obviously intended to apply. I will, however, take thecategories contained in the formula and consider them seriatim.They may be most conveniently arranged as follows :—(1) Forest;
waste; (3) chena ; (4) unoccupied ; (5) uncultivated.
Is this land “ forest ” ? No definition of the word is containedin the Ordinance. There is an interesting discussion of its meaningto be found in a notable contribution to the interpretation of theWaste Lands Ordinance, namely, the judgment of Sir PonnambalamArunachalam, as .District Judge, irithe Adipolla Saunas case. (Seethe Appendix to his Digest of the Civil Laws of Ceylon, pp. cviiiei seq.). He there refers to a case cited before him (Wickrenteratne v.Tenne1), in which Lawrie J. seems to suggest that” forest” must beinterpreted as meaning “ virgin, primeval forest.” I agree WithSir Fonnambalam’s observations on this point. “ Forest ” doesnot necessarily mean “ virgin forest,” nor can any s&tisfactoryreason be given why it should have this artificial meaning here. Theword “ forest ” is used in England in more senses than one. It maymean, as it is defined in the English Encyclopaedia Dictionary : “ Anextensive wood or tract of wooded country; a wild uncultivatedtract of ground interspersed with wood.” In this sense “ forest ”may often include wild stretches of open moor land. On the otherhand, it may be used in its more, natural sense, the sense in whichit is ordinarily used in literature and conversation, namely, a tractof country continuously or all but continuously covered with largetrees. A forest in this sense is something at once more dignifiedand more extensive than a wood, but it is of the same nature. Inmy opinion this tract of land (6 acres) was sufficiently extensive,and the trees which it comprised were sufficiently large to entitleit to be described as “ forest” in this sense of the word. It wouldbe sufficient to. decide the point on this ground alone, but I willproceed to consider the other categories.
1922.
Bebtram
CJ.
HamineSiena v. TheAssistantGovernmentAgent,Puttakim
1 {2994)$ S. O. B. 99.
1982.
Bb&sbam
C.J.
HamineSterna v. TheAssistantGovernmentAgent,PuHalam
( 292 )
la this land “ waste land ” ? I have not been able to discoverthe source from whioh this expression percolated into our legislation.We had appropriated it as early as 1840, so that the source is morelikely to be English than Indian. Probably it dates from the eraof the Enclosure Acts, when the question of the utilization of “ wastelands ” seems to have been one*of the subjects of general discussion.See Jan Austeen: Northanger Abbey; “ By an easy transition ….to forests, the enclosure of them, waste lands, Grown lands, andGovernment—he shortly found himself arrived'at politics.” Thereare references in the nature of definitions in our own reports,but none of them are very full. Sir Ponnambalam Arunachalam,.in the Adipolla Sannas Case (p. dz supra), says: “ There is noevidence that any of these lands is not susceptible of cultivation,which I take it to be the meaning ofc waste.1 ” In Assistant Govern-ment Agent v. Samarasinghe1 Browne J. seems to define “ waste ”as land not susceptible to cultivation.. He says he would not classthe land in^question as “waste”: “ When there is evidence thathowever steep is the lie of the land there, it would have been suscep-tible to cultivation.” Ennis J., on the other hand, in D. C. Ghilaw,No. 5,053,3 speaks of waste land as land which was put to no directremunerative use.9
The Imperial Dictionary defines “ waste ” adjectively as “ nottilled or cultivated; producing no crops or wood,” and substan-tively as “ untilled or uncultivated ground; a tract of land not ina state of cultivation, and producing little or no herbage or wood.”Webster's Dictionary apparently following a common authority(referred to as “ Brande ”) defines “ waste land ” as “ any tract 'ofsurface not in a state of cultivation, and producing little orno usefulherbage or wood.” “ Waste,” however, in English law, has a moredefinite significance. The waste or waste lands of a manor are:lands which belong indeed to the lord, but which are left vacant,and over which the freeholders and tenants of the manor exercisecommonable rights. The term does not imply absence of herbage,as the normal use to which the wastes are put is that of pasture.
Neither, on the other hand, does it imply absence of trees. Otherforms of waste are recognized, which include both forests andwoodland. (See Halsbury’s Laws of England, article on “ Commons,”paragraphs 1016-1018)! and these forms of waste are subject to aright known as “estovers.” HaUbury (Supra), paragraph 1001,citing from Bracton, says: " Common of estovers is the profit whicha man has in the soil of another, to cut or prune from his forest orother wastes wood for his building, inclosing, and firing, or othernecessary purposes.” Nor does the term •1 waste ” imply that theland in question is incapable of cultivation. The numerous Enclo-sure Acts of the 18th century, now so universally reprobated,were all Aots for the enclosure of manorial wastes for purposes of
1 (1900) 1 Browne on p. 224.* 8. O. Min., Nov. 19,1916.
( 263 )
cultivation. Still, there appears to me nodoubt that the term “wasteland ” in English law (making all allowance for the specific forms ofwaste I have already mentioned) primarily denoted open countryon which there were few or no trees. The best legal definition of“ waste ” is that of Watson B. in The AUorriey-Qeneral v. Hammerand others.1 “ The word * waste * means desolate or uncultivatedground, land unoccupied, or that lies in commons. This is theplain and common acceptation of the word . . . . It lies open,desolate, unocoupied, uncultivated …. .Again, in thedescription of lands or manors, the terms 4 lord’s, waste ’ or * wasteof the manor,’ are well known. The large open commons, withinand parcel of the manor, over which rights of common or othercommonable rights are exercised are * wastes’of the manor. Moors,also, are strips of unoccupied land within the manor ….The true meaning of * wastes’ or* wastelands’ or4 wastegroundsof the manor’ is the open, uncultivated, and unocoupied lands,pared of the manor, or open lands, parcel of the manor, other thanthe demesne lands of the manor.” Making allowance for the factthat we have, unfortunately, no commons in Ceylon, I think thesame meaning should be attached to the same phrase in our ownOrdinance, and clearly on this interpretation the lend in questionis not waste land.
Next, is the land chena ? Mr. Wait says of it that it looks asif it had not been cleared for years and years. I take the effect ofthe evidence to be that certain patches of the land may at one timehave been cultivated by periodical clearances, but that this had longceased, and that the land had been abandoned for an altogetherlonger period than any owner, when cultivating it as chena, wouldthink of leaving for that purpose. A ohena land, in my opinion,is land which either still* is or within a reasonable period wasunder process of periodical cultivation. The mere intermittance of. chenaing for some'interval of time would not necessarily destroythis character. Whether it has done so in any particular case is a,question of fact. But land which was at one time chena, hut hasnow been abandoned and left to lapse into jungle, though it wasonce ohena land, is chena land no longer, and I hold on the factsthat this land is not chena land. It is quite true that the applicantin her statement to Mr. Wait speaks of this land as a ohena, butshe is an-ignorant woman not speaking with , precision, and I donot attach any importance to her use of the phrase.
We now come to what is perhaps the most important category.Is the land “ unoccupied land ” ? Oil this point we have theimportant case of Meera Lebbe v. Fernando*in which two eminentJudges,.Phear C.J. and Berwick J., expressed the opinion that inthe application of the presiunption created by Ordinance No. 12of 1810, the words “unoccupied” and *' uncultivated” must be
1 (7868) 27 L.J.Ch. onp. 840.• (1880) 2 B. C. 0.140.
1622.
Brora amC.J.
HamineSiena o. TheAssistantGovernmentAgent,Puitalam
( 294 )
Bbbtram
O.J.
Government
Agent,
Puhakm
interpreted as meaning unoccupied and uncultivated within livingmemory. Phear C.J., indeed, said that this had been more' thanonce held by this Court. I confess that I have some, difficulty in
r—^appreciating on what grounds the Court thought that the words
BtehaT’&he were to be so interpreted. * Sir Ponnambalam Amnachalam
Assistant apparently experienced the same difficulty in his judgment abovereferred to (see page cxiii of the work cited supra), and himselfproposed a solution. The interpretation adopted in Meera Lebbev. Fernando1 appears to be inconsistent with an opinion expressedby Lawrie A.C.J. in Assistant Government Agent v. Le Memrier?u Proof that the land now waste and unoccupied was occupied at atime before the memory of man does not rebut the presumption thatit is the property of the Crown. What has to be ascertained is thestate of the land shortly before the institution of the action.” It isnot clear whether Withers J. concurred in this latter dictum,though he expressed no dissent. At any rate, until the matter hasbeen considered by the Full Court ,4 think that, so far as the presump-tion under Ordinance No. 12 of 1840 is concerned, the principle/laid down by Phear C.J. and Berwick J.-must he considered asauthoritative.
' But under the Waste Lands Ordinance we are in a differentposition. That Ordinance itself explains the word “occupied”for the purpose of proceedings thereunder. By section 24 (b) itassumes that just as. the fact of a land being unoccupied creates apresumption in favour of the Crown, the fact of it being occupiedcreates a presumption of ownership against the Crown in favour ofthe occupier, and it declares that this presumption shall not apply“ for any greater extent of land than that actually occupied by him. ’ ’There is also a reference to “ actual occupation ” in paragraph (c) ofthe same section, and it seems clearly the intention of the sectionthat any occupation which is relied upon either as creating a pre-sumption against the Crown or as preventing a presumption infavour of the Crown from arising must be “ actual occupation.”It is further provided by paragraph (c) that the term unoccupiedland is to include “ all land which shall not be in the uninterruptedoccupation of some person or persons for a period exceeding fiveyears next before notice given by theGovemment Agent or AssistantGovernment Agent.” It thus appears that for the purpose of theOrdinance land is considered unoccupied, unless it has been bothactually and uninterruptedly occupied for a period of five yearsprior to notice. These provisions clearly make a very importantdifference.
Sir Ponnambalam Arunachalam, in the judgment above referredto, seeks to give a specific legal meaning to the word “ occupation.”He would connect it with the term “ ocaupatio ” as used in Romanlaw. “ Occupatio ” in Roman law means a specific act. It means
1 {mo) z s. o. a. no.
1 (1899) 1 Matara Cases at p. 88..
( 285 )
the taking of land either by corporal seizure or by "any act indicatingintention to seize with a view to assuming possession animo domini.Bat it is dear that the word “ occupation ” in this Qrdinanceis notused in this special technical sense. It denotes not an act, but acontinuous condition. Land is spoken of as .being occupied in thisOrdinance just in the same way as in ordinary parlance, a houseis spoken of as being occupied when it has a tenant. If, therefore,we apply the test whether this land has been in actual and uninter-rupfced occupation of the plaintiff for a period of five years beforenotice, it is dear that theanswer must be in the negative.' The onlyoccupation she speaks of is that which took place in consequenceof the clearing of two perches and the building of a hut thereon,for which she was prosecuted in the Police Court, andher occupationof that house, according, to one of her witnesses, Ghristogu, onlylasted two weeks. It seems to me clear, therefore, that the landwas unoccupied land within the meaning of the Ordinance.
Apart from this test, there is another which might be applied.By section 24 (c) the term “ unocoupied land ” includes all land.which at the time of the passing of the Ordinance was hot in theactual occupation of any person or persons. There is no evidenceto show that this land was occupied at all in the year 1897, the dateof the passing of the Ordinance. On the contrary, there is positiveevidence that it had been wholly abandoned.
It is not necessary to discuss whether the land is uncultivatedland within the meaning of the Ordinance, for the Ordinance itselfsays (section 24>that the term/‘unoccupiedland ” includes unculti-vated land, and what I have said already applies to this category.
The legal position then is. this, that on several grounds a presump-,tion has arisen that this land is the property of the Crown. Allthat remains, therefore, is that we should ask ourselves whetherthe plaintiff has rebutted that presumption. Here, again, it hasnot been possible seriously to argue that she has done so. Therehas been no appreciable evidence to support a claim of prescription.The appellant’s father died over twenty years ago. He. was blindfor many years before his death. All that he is said to have donewas to cultivate a small tobacco garden. Both in her statement toMr. Wait and in two of her petitions drafted by her proctor theplaintiff frankly said that she had abandoned the land as she wastoo poor to cultivate it. See D 2 dated October 2, 1908: “ Thepetitioner has remained unmarried, but being hdpless and poor wasunable to plant the said land, and it has now reverted to theeonditionof jungle/’ See also P 17 dated April J), 1913: “ After the deathoi petitioner’s father, the petitioner obtained the said land andpossessed it, but reason of her extreme poverty and helplessnessshe was unable to make any plantation thereon.” Evidence hasbeen given that she and her father allowed a witness .to hunt forhares in the jungle upon the land, and that people cut sticks by
1922*
Bbbsbam
GJ.
SommeJBtena v. TheAssistantGovernmentAgent,Puttalam
( 296 )
Utopia—O.J. .
HamitleElena c. TheAssistantGovernmentAgent,Puttalam
her permission, bat this evidence, like all evidence o! catting ofsticks, is very dubious.
In $he Court below the case put forward by the appellant’s prootorwas that at someundefined point of time in the past this landformed part of certain lands held in common by a village community,being high land appurtenant to the paddy fields which the villagecommunity cultivated in common. This is merely a specula-tion, and rests on nothing which oan be regarded as evidence.Historical research up to the present does not seem definitely tohave established the existence of such communities in Ceylondaring historical times. The possibility of such lands as this bringheld not as the property of the villagers cultivating paddy in thevillage, but as lands over which they had a customary right to cutsticks, does not seem to have been specifically investigated. Usack a right was found to exist in connection with Nindagama lands,it woidd' be ah exact parallel to the oommon of estovers of Englishlaw, but there appears to be no record of any such i^ght in Ceyloneither in oonneotion with Nindagama lands or in connection withlands held direct from the king. Nor is anything of the sortclaimed here. What is churned here is not a oustomary right,- butactual title. The theory appears to be that at some uncertain datethe village community was dissolved, that its members apportionedthese lands among themselves, and that they finally acquiredprescriptive title against each other and against all the world. Thisis a mere conjecture not supported by any evidence.
It would appear, therefore, that regarding this question as a purequestion of law plaintiff has failed to establish any title to the land,and that her appeal must be dismissed. It has, however, alwaysbeen declared in connection with the Waste Lands Ordinance that
it was not an Ordinance intended for the bare determination oflegal rights, but that its object was the equitable settlement of evenundefined claims. It is possible that in the prolonged and earnestlyfought litigation in connection with this land, this aspect of theOrdinance may have been overlooked. In case it should be thoughtfit even at this stage torieal with the matter from another point ofview, it may perhaps assist those responsible if we recite what weunderstand to be the story of the facts in the case. ,
We first hear of this land in the year 1870, when this and theadjoining lands were surveyed by the Grown. ' The whole tract ofland of which this land was part consisted of some 26 aores. It wasin the. oooupation of various people, and .was to a considerableextent already cultivated with oboonuts, some trees being of con-siderable age. The cultivation had gone on for so many years thatthe. land which must originally have been jungle or ohena had come-to be known as Nagahawatta. In the survey of 1870 this land ismarked as claimed by Y&hapathhamy, father of the plaintiff, andone Puoohiralara member of his family. The land was described as
( 297 )
jungle land, and there was no name given to it. Inthi Mudaliyar’sreport of 1871 the names of the claimants and an estimate of theappraised value of this lot were given and a short description of theland. This land is itself called Nagahawatta, and is mentioned asbeingclaimed by the same two persons. It is described as low jungle,but as being good for coconuts. It would appearthat in thefollowingyew the Crown asserted its claim tothese lands, and at various dates“ settled ” most of them by disposing of them in various ways, insome instances by way of sale to the claimants at favourable prices.This land, however, was not so disposed of. The history of thispart of the case is more fully set out in the judgment of the learnedDistrict Judge. In the year 1886 there was another Mudaliyar’sreport, in which he speaks of it as claimed by Yahapathhamy andanother, as being low land and very good for coconut cultivation,and as bearing the name of Eahatagahakele. In the register keptat the time of the survey and the succeeding sales there is a noteagainst this lot that it was “ reserved as village forest.” This note.appears to be in the handwriting of Mr. C. M. Lushington, whowas Government Agent in the year 1885. It is an endorsementin indelible pencil, and appears to indicate either that it wasMr. Lushington’s intention to get the land formally Bet apart as avillage forest under the Forest Ordinance, or informally to indicatethat this land was not to be disposed of, but was to be retained forthe benefit of the villagers. It is clear that the Government didnot recognize the claim of Yahapathhamy. and Punchirala. We donot know how that claim originated, or to what extent Yahapath-hamy had ever cultivated the property.
It will be convenient now to take up the story from the point ofview of plaintiff herself. She made a statement at an inquiry heldby Mr. Wait, at which, unfortunately, her proctor was unable to bepresent. M*1ring every allowance for that circumstance, I haveformed the strong, impression that what she said in that statementwas the simple truth, more particularly as it is supported by thepetitions to which I have previously referred. “ I claim the landDawatagahakele in the notice by paternal inheritance ….Before the land was surveyed, when I was a gid, my father dug someweDs cm the land. One well is still there. My father lost his sight,and there was no one to work on the land, and so it reverted tojungle. The land was always chena with large kahaia trees on it.It has been chena as long as I can remember. I am about 60 yearsold. After my father’s death, fifteen years ago, I left the land alonetill last year, except for felling sticks …. I never occupied”(the word “used” implies “residence”) “ the land tiU last year, Ithen put up a sm»U hut by theside of the Gansabh&wa road withthe intention of malriwg a plantation, but the headman got the hutburnt on two occasions. My father had five daughters. My fathertold them that this land came to me, and asked my brothers and
10*
1982.
Bertram
C.J.
HamineSiena t>. TheAssistantGovernmentAgent*PuttaUm
1922.
Bbbxbam
G.J.
HammEtena v. TheAeeietantGovernmentAgent,Puttalam
( 298 )
sisters not to claim it. I maintained my father for twenty-threeyears while he was blind.”
The truth thus appears to be this. Many years ago, in the life-time of her father, there was a small tobacco garden on the laud,and wells or pits were dug for the purpose of watering it. Herfather’s infirmity prevented his giving any attention to the land,which he had, no doubt, occupied at the time when the other villagerscommenced their occupation of the adjoining lands. The Growndid not sell the land with the other lots, because there was an inten-tion to devote it to a village forest. Her father thus never got thechance of a settlement; After her father’s death she continued toregard the land as her own without any notion as to her precisetitle, and she not unnaturally regarded the fact of it not being soldwith the other lots as an indication that her father’s rights wererecognized. She herself did nothing to the land (possibly she mayhave allowed an occasional villager to cut sticks), but she continued,nevertheless, to regard the land as her own. She spoke afterwards'at the trial of occasional vegetable cultivation, but this is toouncertain and too disconnected to be taken into account.
How, then, did the question of her ownership of this land come up ?She says that she had a quarrel with the local Police Headman,Baronchi Vidane, and that he for the first time raised the questionof her right to this land. This is the only explanation we have, and.it may very well be true, because it is from the side of the womanthat action is first taken. She applies to her Proctor, Mr. G. E.Corea, and on October 2,1908, under his advice, she sends a petitionto the Government Agent (D 2) giving a very fair recital of thefacts as she understood them, and asking for a certificate of quietpossession. She received .a reply which must have seemed to herentirely satisfactory. It stated that no certificate of quiet possessioncould be issued to her because the land she mentioned had alreadybeen sold to one Kiri Etena. Kiri Etena was the name of theplaintiff’s mother, and she naturally assumed that in some way oranother her mother had purchased the land, and that it was conse-quently her own. Acting on the faith of this Government letter,towards the close of the following year 1909,. she sold some timbertrees on the land to a carpenter, who proceeded to cut them down.On October 20, 1909, the local Mudaliyar, no doubt, on the reportof the headman above referred to, reported to the GovernmentAgentthat plaintiff had got two trees cut in the village reserve. TheGovernment Agent called forhertitledeeds,and she naturally repliedby referring him to the previous correspondence. The GovernmentAgent on December 6, 1909 (P 1), wrote to her that the land onwhich the timber was felled had never been sold, and called uponher to pay Rs. 10*98. She must have regarded this letter with greatastonishment, inasmuch as only a year before she had been told thatthe land had been sold to a person whom she took to be her mother.
( 299 )
She paid nothing, bat the. Crown seized and sold the timber. Itwas not until January 9,1912, that her proctor obtained particularsof the Crown grant to Kiri Etena, and it was then apparent thatthat grant referred not to this land, but to another land, eitheradjoining it or in the same neighbourhood. As a matter of fact,the Kiri Etena referred to was not the plaintiff's mother, butanother Kiri Etena, though this was a circumstance which shedid not' at all readily recognize. On the contrary, acting still onthe advice of her proctor, the conclusion she came to was that theland now in question had been somehow acquired by her father,and that the other lot had been acquired by her mother, and thatBhe was entitled to both, and she proceeded to address a series ofpetitions to the Government commencing with one on April 7,1913.By this petition she again asked the Government Agent to directthe issue of a certificate of quiet possession in her favour. She gotno answer to this petition, and on January 12,1914, she sent another.Again she received no answer* and on May 9,1916, she sent a third.There can be no question that these three petitions which weredrafted by her prootor were sent, and that no answer was received.Probably, they were referred to the Mudaliyar for report and over*looked by him. The circumstance not unnaturally caused irritationto the mind of the plaintiff and that of her legal adviser, and thelatter, in order to bring her claim to an issue, advised her to occupythe land. She, thereupon, cleared a small portion of the land anderected a hut and lived there for about a fortnight. The hut was.burned down, and she evacuated the land. She asserts, no donbton mere suspicion, that the person who burnt the hut down wasthe headman, with whom she was at. enmity. This may or maynot be true, but certain circumstances seem to indicate that theperson who burnt the hut down was one who took upon himself tobe concerned in the dispute between the woman and the GovernmentAgent.
The next incident was an unfortunate one. Instead of takingcivil proceedings to test the title, the local authorities proceededagainst the plaintiff criminally. In. so doing they were actingcontrary to the rule expressly laid down by-this Court, and recentlyconfirmed in a full Court judgment, that where there is an existingdispute between a claimant to land and the Government, it is anabuse of the process of the Court to set criminal proceedings inmotion in order to determine the question. The woman wasconvicted in the Police Court, but the conviction was set aside bythis Court, and the present proceedings were then instituted.
It is apparent from a recital of the above facts that the plaintiffhas no legal claim. But it is equally apparent that the story hasbeen fall of misunderstandings. The plaintiff not unnaturallyconceived herself as having a paternal connection with the land*She had every reasonto believe that she had some sort of claim.to it.
1922.
BiffttMS
O.J.
Etena v. TheAssistantGovernmentAgent,Puitalam
m
Bbrtbah
C.J.
HommeStena v. TheAssistantGovernment
Agent,Puttalam
( 300 )
She at first received an answer which seemed to confirm that claim.Then without explanation she receives a contradictory oommuni-cation. She addresses petitions to the Crown and receives no answer.She oooupies the land under legal advice. Here, no doubt, heraction was unjustified, but the action oi the Grown was also un-justified in setting criminal proceedings in motion. No one knowsunder what circumstances her father and the other villagers, whowere dealt with in 1872, came to take possession of this land. Thefact remains that other occupants were given an opportunity ofacquiring their land on easy terms, and this facility was not extendedto her father, probably because it was intended to keep this lot asa village forest. Still to this extent her father was treated lessfavourably than other villagers. This circumstance and the othercircumstances I have mentioned are not matter for the consideration^of this Court, but may, perhaps, be matters for the considerationof an officer who is not bound to look at the matter on a strictlylegal basis. Mr. Wait says that he made no attempt to oome to asettlement, partly because the plaintiff had no claim (by which hemeant no legal claim), and partly because the lot was required for avillage forest. On the other hand, the local .MudaJiyar says speci-fically that the land is not required for a village forest, and thathe has officially recommended that it be sold. I strongly doubtthe evidence produced by the Government to show that the cuttingof fence sticks had taken place in this lot under official permits.There was another lot close by—the “ cemetery lot ”—in whichthis was regularly done. Two permits for cutting timber Lave beenproduced by the Crown, but they seem to me as equally applicableto the cemetery lot as to this lot.
It is much to be hoped that the prolonged course of litigation inwhich this woman has bee ome involved may now be brought to an end.There appears to be some Police Court-proceedings pending againstthe woman in connection with the charge made by her in regardto the burning of the hut. We have not these proceedings beforeus, but it is high time that the dispute was allowed to drop. Thequestion of title is now decided. Whether, even at this stage ofthe case it may be found possible to make any equitable concessionto the woman, either in connection with tips land or elsewhere, isa matter for the decision of authorities other than ourselves.
In my opinion the appeal must be dismissed. The Grown wasnot specifically asked whether it churned costs* and would, I thinkif asked, probably have waived them. In all the circumstancesof the case I would make no order as to costs.
Ds Sampayo J. -I agree.
Appeal dismissed.