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Present: De Sampayo J.HELLINGS v. JAYASEKERA et til.
396 to 398—P. C. QdUe, 10,221.
Ordinance No. 6 of 1866—Thombus.
Ordinance No. 6 of 1866 applies only to deeds in private bands.- The Ordinance does not contemplate the registration of a thombu,nor need an extract issued by tbe Crown itself be registered asproof of its truth.
-Attorney-General e. Kiriya 1 followed.
facts appear from the judgment.
Baton, K.C. (with hjm Amaraeekera), for appellant.
Obeyesekere, G.C., for the Crown.
July 23, 1919. J)e Sampayo J.—
The accused have been charged with having cleared without apermit a land which the prosecution calls Miriswattamukalana, andas property belonging to the Crown. The land is high land,and is of the description which raises the presumption in favour ofthe Crown. The first accused claims it as part of the land called.Kalubinihala upon a Dutch thombu extract of 1891 in favour of hisancestor. The extract includes a field of that name, and the firstaccused appears to claim the high land as an appurtenant. HiePolice Magistrate rightly considered that the questions for determi-nation were whether the first accused had shown primd facie title tothe land, and, if not, whether in giving the land to the other accusedfor chena cultivation he acted bona fide.
The reception of the Dutch thombu extract was objected to onbehalf of the prosecution, on the ground that it had not beenregistered in pursuance of the Ordinance No. 6 of 1866. The PoliceMagistrate upheld the objection and rejected the document, andaccordingly he held that the first accused had failed to upset thepresumption in favour of the Crown by proof of his own title. Theruling of the Police Magistrate on this point appears to me to beerroneous. In Attorney-General v. Kiriya 1 Lawrie A.C.J. observed:“ The Ordinance applies only to deeds in private hands; it does notaffect public records, thombus, Ac., in the public archives, nor thedecree of Court, and the like.” I am in entire accord with this view.The preamble of the .Ordinance states its object to be to provide
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. against false deeds, sannases, and olas purporting to bear old dates,which are not uncommonly produced in evidence in. Courts ofiustice Now, the thombu was a register made by the Dutch Govern-ment itself, and was in its sole custody, and this fact at once takesit out of the category of instruments aimed at by the Ordinance.An extract is only a copy issued to the private property, the thombuitself being the basis of the title. It is obvious that the Ordinancedoes not contemplate the registration of the thombu, nor need anextract which is issued by the Crown itself be registered as proofof its truth. I think the Police Magistrate wrongly rejected the -document produced by the first accused, and his decision of thequestion of title is therefore vitiated.
The extract, however, will not prove title unless the identity ofthe land is also established. Here the accused failed to satisfy thePolice Magistrate. The nature, situation, and extent of the landappear to militate against the assertion that it is included in or is .an appurtenant of the field which is referred to in the extract asKalubinihala. The accused may, nevertheless, have a bone fide beliefthat it is so. Here, again, the Police Magistrate has expressed astrong opinion against him. I may note that the first accused's claimis not based on mere descent from the original thombu holder, buton a deed of gift dated June S, 1917, and in this deed the amunamsand kurunies which are mentioned in the extent are stated withoutany justification to be amunams and kurunies of “ fine grain ” sowing.This misdiscription, for which, in the circumstances of the case, thefirst accused must be taken to be responsible, affects the questionof bona fides. It is true that in a number of cases with referenceto some other lands included in the same thombu extract the firstaccused was successful, but the Police Magistrate considers that hetook advantage of these very successes and set up an unconscionableclaim to this land. I am not in a position to characterize thatconclusion a^ untenable. Nor do the replies of the GovernmentAgent to certain petitions of the first accused, upon which so muchreliance is placed, afford good ground for any mistaken belief onthe part of the first accused. These replies acknowledged the rightof the first accused to the lands mentioned in the thombu extract,but stated that it was necessary to make a survey, for whichinstructions had been given to the Surveyor-General in order toseparate them from the Crown lands, and one of the replies concludedwith the assurance that “ if the lands are within the scope of thethombu extract, he will not be interfered with, pending settlementby the Settlement Officer. ” It appear that no survey has yet beenmade or settlement proceedings taken, and it is argued, on behalfof the first accused, that by these replies the Government Agenthimself permitted him to do such acts as he has now been prosecutedfor. But if is plain that the -replies in question are very guarded,and expressly referred to lands “ within the scope of the thombu
( M8 )extracts," and, in my opinion, there were not aiich as to misleadthe first accused. I am, therefore, unable to dissent from thePolice Magistrate’s opinion on the question of bona fidea. But itshould be dearly understood, as the Ordinance itself provides, thatthe Police Magistrate’s findings are good only as regards the criminalprosecution, and are in no way to prejudice the first accused in anyquestion of title that may arise between the first accused and theCrown in any civil proceedings.
The appeal is dismissed.
HELLINGS v. JAYASEKERA et al