051-NLR-NLR-V-60-HERATH-Appellant-and-THE-ATTORNEYGENERAL-and-another-Respondents.pdf

202
BASNAYAKE, C.J.—Herath v. The Attorney-General
the following letter dated 19th March 1953 (P14) and the award (P15)annexed to it:—
(P14)
I have the honour to forward herewith my Notice of Award madeunder Section 16 of the Land Acquisition Act No. 9 of1950 in connectionwith the acquisition of the above land for the purposes of the LandRedemption Ordinance, No. 61 of 1942.
(P15)
I, Victor Alexander Justin Senaratne, Assistant Government Agentof the Nuwara Eliya District in the Central Province of the Island ofCeylon, make the following award:—
1. Every person referred to in column I hereunder shall be
entitled to the interest specified in the corresponding entry incolumn II
_in
Name and address of personNature of interest in
entitled to compensationland to be acquired
Mr. R. B. Herat, Ananda Transport By Right of Purchase
Services, Hanguranketa
Trustee,Hanguranketa Pattini By Kapu Services
Dewale (Mr. A. B. Pananwela, (Rajakariya) due toBasnayake Nilame, Talatu Oya)the Dewale
The total amount of the claims for compensation for theacquisition of the land or servitude is Rupees Fifteen thousand only.
The sum of Rupees Three thousand three hundred and thirtyonly shall be paid by the Government of the said Island for theacquisition of the said land by way of compensation to the saidpersons, each person to be paid the amount specified below againsthis name.
Names of persons entitled tocompensation
Mr. R. B. Herat
Trustee, Hanguranketa Dewale
Amount ofCompensationRs. 3,108.50Rs. 221.50
On 8th March 1954 the Divisional Revenue Officer of Uda Hewaheta.placed the 2nd defendant in possession of the lands and reported to theplaintiff as follows:—
(P16)
This is to inform you that I have handed over lots 1 and 6 in P. P. A.1684 acquired under the L. R. O. to the applicant Mr. P. B. Attanayakeof Damunumeya today.
2. In this connection your reference is requested to my letter ofeven number dated 13.2.54.
BASNAYAKE, C.J.—Herath o. The Attorney-General
203
The plaintiff next received from the Assistant Government Agent,Nuwara Eliya, the following letter of March 23, 1954:—
(P17)
With reference to my letter No. LD. 1051 dated 19.3.1953 forwardingmy Notice of Award under Section 16 of the Land Acquisition ActNo. 9 of 1950,1 have the honour to request you to receipt the annexedvoucher for Rs. 3,108.50 on a 06 cts. stamp duly witnessed by aresponsible person and to return same early to enable me to tenderyou the amount of my Award by cheque.
The plaintiff did not comply with the request contained in the letterP17 and he did not return the voucher. It is produced in these pro-ceedings marked P18. As his action in the District Court of Kandy hadbeen dismissed for default of his appearance and his further representationsto the Land Commissioner and the Assistant Government Agent had beenunsuccessful he decided once more to seek his legal remedy and on 9thApril 1954 he wrote the following letter to the Land Commissionerwith a copy to the Assistant Government Agent, Nuwara Eliya:—
(P19)
I have the honour to inform you that I am instructed by my lawyersto file action for the recovery of the property known as WalliwelaCumbura in the above acquisition for the purpose of the Land Redemp-tion Ordinance No. 61 of 1942 Lots 1-6 in PPA. 1684 No. LD. 1051.
I understand that the A. G. A., Nuwara Eliya, has given instructionsto the D. R. O., Uda Hewaheta, to harvest the crop of the above propertyreferred to.
As the property is under litigation I wired the A. G. A., NuwaraEliya, to suspend the Paddy pending the decision of the action. FurtherI beg to state that I will hold you responsible for damage to the valueof the paddy harvest.
Please acknowledge the receipt of this letter and take immediatesteps.
His request was turned down by the following letter
(P20)
With reference to your letter of 9.4.54,1 have the honour to informyou that I regret that your request cannot be complied with.
The plaintiff purchased the rights he claims in the lands in questionfor Rs. 5,000 on 28th October 1946, but he has been offered as compen-sation only a sum of Rs. 3,108.50 on 19thMarch 1953. These proceedingsdo not show why the plaintiff has been offered less than the purchaseprice. His claim was Rs. 15,000. As all his attempts to stop his landsfrom being acquired were in vain, and as his action against the LandCommissioner failed owing to default of his appearance on the date oftrial, he had to resort to the Courts to obtain relief.
204BASNAYAKE, C.J.—Herath o. The Attomey-Qeneta
On 1st May 1954 the plaintiff instituted the present action againstthe Attorney-General in which he challenges the authority of the LandCommissioner to acquire the lands in question, and asks—
(а)that he be declared entitled to them and to possess them,
(б)that he be restored to and quieted in possession of them, and
that the 2nd defendant be ejected therefrom.
The Attorney-General in his answer states—
(а)that the Pattini Dewale of Hanguranketa is not the “ owner ,r
of the lands within the meaning of the term in the LandRedemption Ordinance,
(б)that upon the determination by the Land Commissioner to acquire
the lands the Minister made a declaration under section 5 (1)of the Land Acquisition Act as modified,
(c) that the Minister made an order under section 36 of the LandAcquisition Act and that the order was published in the Gazette.
He contends that—
(а)the lands fall within the description of lands which are liable to
be acquired under the Land Redemption Ordinance,
(б)the declaration made by the Minister under the Land Acquisition
Act is conclusive proof that the lands are needed for a purposewhich is deemed to be a public purpose,
it is not open to the plaintiff to canvass in these proceedings the
question whether the lands fall within the categories of landswhich are liable to acquisition under the Land RedemptionOrdinance,
until the order under section 36 of the Land Acquisition Act is
set aside the plaintiff is not entitled to the relief he claims,
the dismissal of the plaintiff’s action in D. C. KANDY case-
No. L. 3632 operates as res judicata.
It is admitted by the Attorney-General that the lands in questionform part of the kapu panguwa of the Pattini Dewale and that the nila-karayas of that panguwa of whom the plaintiff is one are liable to renderservices to the Dewale in respect of the land held by them. There is noevidence as to what the services are. The sannasa or grant under whichthe lands in question were given to the Dewale has not been produced,nor has any evidence as to any special custom governing the tenure ofthese lands been placed before the Court. It was assumed at the hearingof this appeal that these lands are held on the usual tenure of dewalagamalands and that the services are personal services rendered to the Dewale.
The learned trial Judge held—
that the lands in question formed a part of the kapu panguwa.belonging to the Pattini Dewale of Hanguranketa,
BASNAYAKE, C.J.—Herath v. The Attorney-General
205
(6) that the plaintiff was by virtue of deed No. 6032 of 28th October1946 entitled to possess them,
that the Land Commissioner purported to acquire them under
the Land Redemption Ordinance, and that the Crown tookpossession of them on 8th March 1954,
that the lands fall within the category of lands liable to be acquired
under the Land Redemption Ordinance,
that the plaintiff is not the owner of the lands in question,
.(/) that the lands have vested absolutely in the Crown,
(</) that the decision in the D. C. Kandy Case No. L. 3632 is notres judicata.
It would be helpful if a brief reference is made to the system of landtenure under the Kandyan Kings before the questions arising on thisappeal are discussed. In this judgment I shall for the sake of conveniencerefer to the grantee of a gama (village) be it a nindagama, viharagamaor dewalagama, as the ninda lord.
A village or gama in respect of which services (rajakariya) were per-formed are of four kinds, viz., gabadagama, nindagama, viharagama,and dewalagama. A gabadagama is a royal village which was the exclu-sive property of the Sovereign. The Royal Store or Treasury was suppliedfrom the gabadagama, which the tenants had to cultivate gratuitouslyin consideration of being holders of praveni panguwas. A nindagamais a village granted by the Sovereign to a chief or noble or other personon a sannasa or grant. Similarly, a village granted by the Sovereign toa vihare is a viharagama and to a dewale is a dewalagama. Each gamaor village consisted of a number of holdings or minor villages. Each suchholding or minor village was known as a panguwa. Each panguwa consistedof a number of fields and gardens. Panguwas were of two kinds, viz.,praAreni or paraveni panguwa and maruwena panguwa. A praveni panguwais a hereditary holding and a maruwena panguwa is a holding givenout to a tenant for each cultivation year or for a period of years. Theholder of a panguwa was known as a nilakaraya. They were of twokinds: Praveni or paraveni nilakarayas and maruwena nilakarayas.The praveni nilakarayas are generally those who were holders of panguwasprior to the Royal Grant and the ninda lord is not free to change them.They were free to transmit their lands to their male heirs, but were notfree to sell or mortgage their rights. They were obliged to perform servicesin respect of their panguwas. The services varied according as the nindalord was an individual, a vihare or a dewale. In the case of vihares oror dewales personal services were such as keeping the buildings in repair,cultivating the fields of the temple, preparing the daily dana, partici-pating in the annual procession, and performing services at the dailypooja of the vihare or dewale. In the scheme of land tenure the panguwathough consisting of extensive lands is indivisible and the nilakarayasAre jointly and severally liable to render services or pay dues. Thoughthe panguwa was indivisible, especially after a praveni nilakaraya’sright to sell, gift, devise, and mortgage his panguwa came to be recognised,the practice came into existence of different persons who obtained rights
206BASNAYAJCE, C.J.—Herath v. The Attorney-General
from a nilakaraya occupying separate allotments of land for convenienceof possession. The maruwena nilakaraya though known as a tenant-at-will held on a tenancy which lasted at least for one cultivation yearat a time. Unlike the praveni nilakaraya he could be changed by theninda lord; but it was seldom done. He went on year after year, butwas not entitled to transmit his rights to his heirs. On the death of amaruwena tenant his heirs are entitled to continue only if they receivethe tenancy. Though in theory maruwena tenure was precarious, infact it was not so. So long as he paid his dues the ninda lord rarelydisturbed him. Besides the praveni and maruwena panguwas in a nin-dagama, viharagama or dewalagama, there were also lands ownedabsolutely by the ninda lord both ownership and possession being in him.
Under the Kandyan Kings and during the early British period therewere also lands held by nilakarayas directly under the Sovereign. Theholders of these lands were not free to gift, sell, bequeath or mortgagetheir rights. Their rights were transmissible only to their male heirsand the possession reverted to the State on the failure of the male heirsor breach of the Conditions of Tenure. The rights of the State in respectof such lands called in early British legislation “ Service Parveny Lands ”were declared by Regulation 8 of 1908 thus :
Whereas there is reason to believe that abuses prevail with respectto the lands called Service Parveny Lands, in prejudice of the Rightsof Government, and to the impoverishment of Families holding thesaid Lands.
His Excellency The Governor in Council deems it necessary to declare,conformably to the ancient Tenure of the said Lands, and it is herebydeclared accordingly—
1st. That all such Lands are held, as in former times, immediatelyunder Government:
2ndly. That the privilege of succeeding thereto is in the Male Heirs only,of those who die possessed of such Lands, and that the samerevert to His Majesty’s use on failure of such Male Heirs orbreach of the Conditions of Tenure :
3rdly. That the same are not capable of alienation by Gift, Sale,Bequest or other Act of any party, or of being charged, orincumbered with any Debt whatsoever:
4thly. That the said Lands, are not liable to be sold by virtue of anyWrit of Execution or other legal process of any Court orCourts in this Island:
The Service Praveni Lands Succession Ordinance of 1852, however,extended to female heirs the right of succession to persons who diepossessed of service praveni lands. It also declared that service pravenilands were capable of alienation, gift, sale, devise or other act or ofbeing charged or encumbered with any debt. Similar legislation wasnot enacted in respect of service tenure lands not owned by the Statebut by a ninda lord. The Service Tenures Ordinance which applies tosuch lands did not give the nilakaraya power to sell, gift, devise, or
BASNAYAKE, C.J.—Herath ». The Attorney-General
207
mortgage his panguwa but provided for the commutation of his servicesby a money payment and imposed a period of limitation of one yearin respect of the recovery of arrears of personal services and two yearsin the case of commuted dues. The right to recovery of services or duesif not enforced for ten years was to result in the loss for ever of the nindalord’s rights and on the nilakaraya becoming the owner (section 24).The Ordinance also deprived the proprietor of the right to proceed toejectment against the nilakaraya (section 25) on his failure to renderpersonal services or dues. He was permitted to recover the value of theservices by seizure and sale—
(а)of the crop or fruits of the panguwa, or failing them,
(б)of the personal property of the nilakaraya, or failing both,
(c) by the sale of the panguwa, subject to the personal services orcommuted dues in lieu thereof.
The proceeds of sale have to be applied in payment of the amountdue to the proprietor, and the balance, if any, is to be paid to the evictednilafearayas. If there is a prior encumbrance upon the holding the balanceis to be applied to satisfy such encumbrance. Despite these far-reachingchanges the character of the ninda lord or proprietor remained the same.In course of time it seems to have been assumed, though no expresslegislative provision in that behalf was made, that the nilakarayas ofa nindagama, viharagama or dewalagama had the same rights of aliena-tion, gift, and mortgage as the holder of a service praveni land.
Though the nilakaraya’s rights in respect of his holding becameenlarged in the course of time it was never at any time doubted thatthe ninda lord was the owner of the soil and the legislation relating toservice tenure lands recognised that position of the ninda lord and didnot alter but preserved it. Sections 12 and 27 of the Buddhist Tempora-lities Ordinance refers to the nilakarayas as “ temple tenants ” (section 21)and speaks of the transfer of “ a paraveni pangu tenant’s interest inany land held of a temple” (section 27), and gives implied legislativerecognition to the alienability of a nilakaraya’s rights and not the. land.
It leaves no doubt as to what the praveni nilakaraya may transfer.Section54of the Partition Act No. 16 of 1951 also proceeds on the footingthat the nilakaraya is not the owner of his panguwa, for it provides“ Every praveni nilakaraya shall, for the purposes of this Act, be deemedto be a co-owner of the praveni panguwa of which he is a shareholder/?.Today the ninda lord stands in the shoes of the Royal Grantor subjectto the restrictions or conditions imposed by the sannasa or grant andthe nilakarayas continue as tenants of the grantee, though with fargreater rights than they ever enjoyed under the Kandyan Kings. Desepitethe extension of their rights the nilakarayas had to render services orpay commuted dues to the ninda lord. If ever the line of succession ofthe nilakarayas of a panguwa became extinct the possession of the landwould revert to the ninda lord. As the nilakaraya was free to sell hisrights the ninda, lord was free in course of time by purchase to enlargehis rights of ownership, by adding to his rights those of the nilakaraya.
208
BASNAYAKE, C.J.—Herath «. The Attorney-General
It is not clear why the Service Tenures Ordinance refers to the nindalord as proprietor and not as owner. The same expression is used in thePartition Act No. 16 of 1951. Now to my mind there is no differencebetween the expressions proprietor and owner in the context in whichthe former expression is used. The Oxford dictionary defines “ proprietor ”as one who holds something as property: one who has the exclusive rightor title to the use or disposal of a thing; an owner. Webster’s dictionarydefines the expression thus: “ One who has the legal title or exclusiveright to anything, whether in possession or not; an owner. ” The nindalord is the owner of his service lands without possession and the nilakarayais the possessor of those lands without ownership. The waiters on Juris-" prudence, both ancient and modern, bring out clearly the differencebetween the concepts of ownership and possession. For the purposeof this judgment it is sufficient to quote a passage from Salmond, one ofthe modern writers. (Salmond on Jurisprudence, 11th Edn, p. 302)
No man is said to own a piece of land or a chattel, if his right overit is merely an encumbrance of some more general right vested insome one else . . . . In its full and normal compass corporealownership is the right to the entirety of the lawful uses of a corporealthing. This compass, however, may be limited to any extent by theadverse influences of jura in re aliena vested in other persons. Theright of the owner of a thing may be all but eaten up by the dominantrights of lessees, mortgagees, and other encumbrancers. His owner-ship may be reduced to a mere name rather than a reality. Yet henone the less remains the owner of the thing, while all the others ownnothing more than rights over it. For in him is vested that jus inre propria which, were all encumbrances removed from it, wouldstraightway expand to its normal dimensions as the universxim jusof general and permanent use. He, then, is the owner of a materialobject, who has a right to the general or residuary uses of it, afterthe deduction of all special and limited rights of use vested by wayof encumbrance in other persons.
How true these words are of the ninda lord and the nilakaraya. Thelatter cannot be said to be the owoier of the land as his rights are merelyan encumbrance of a general right vested in the ninda lord and the nindalord whose rights are reduced to merely the receipt of personal servicesor commuted dues is none the less the owner of the land. Apart fromlegal concepts even laymen in the Kandyan provinces will not regardthe nilakaraya as the owner of the nindagama. The difference betweenownership and possession is so clearly ingrained in the minds of thepeople in the Kandyan Provinces that the lands of a nindagama arespoken of as lands of the ninda lord and not of the nilakaraya. Theywould speak of nindagama lands as lands belonging to the Dalada Maligawaor Sri Maha Bodhi or Ridi Vihare or to such and such a family. In theinstant case the reference in the mortgage bond (1D4) to the mortgagor“ being in possession of” the lands referred to therein by virtue of thedeed recited and the absence of any reference to title are significantand to my mind indicate that the mortgagor and the notary realisedthe difference between the rights of the ninda lord and the nilakaraya.
I
BASNAYAKE, C.J.—Herath v. The Attorney-General
2091
Learned counsel for the Crown has not been able to cite a single deci-sion of this Court in support of his contention that a nilakaraya of aservice panguwa is its owner. In fact the decisions of this Court arethe other way. They hold that a nilakaraya is not the owner and thatit is not competent for him to institute a partition action as he is notthe owner of the land of which he is in possession. The first of thesedecisions is the case of Jotihamy v. Dingirihamy l. In that case Wendt
J.observed—
Now the dominium in Service Tenures land is generally regardedas vested in the person usually described as proprietor of the Nindagama,or the overlord, while the Nilalcarayo are similarly spoken of as tenants.I do not of course forget that the interests of a Paraveny Nilakarayacannot be determined against his will by a proprietor although uponthe non-performance of services judgment can be recovered for damagesand the interest of the tenant sold up and so brought to an end. ButI do not see that this makes a tenant an owner; he cannot thereforeclaim partition of the land.
Tliis case was followed by Kaluwa v. Rankira2, which is also anaction for the partition of nindagama land. One of the defences set upwas “ that the plaintiff cannot maintain the action because he is notan ‘owner’ within the meaning of section 2 of .the Partition Ordinance10 of 1863, as the land is subject to Bajakaria Services ”. HutchinsonC. J.was invited by the plaintiff-appellant to hold that the case of Jotihamyv. Dingirihamy {supra), a decision of two judges (Wendt J. and Middleton
J.) was wrong. But he declined to do so as he thought the decisionwas right.
The next decision is the case of Appuhamy v. Menike 3, which wasan action brought by a praveni nilakaraya of a panguwa of the DodampeNindagama for the partition of certain lands appertaining to his panguwa.The proprietors of the nindagama intervened and disputed the rightof the plaintiff to bring an action for partition. That case was heardby a Bench of three Judges. Two of the Judges agreed with the deci-sion in Jotihamy v. Dingirihamy {supra) while De Sampayo J. dissentedfrom the view that a praveni nilakaraya is not the owner of his holdingbut agreed that he could not compel a partition. As stated above,to-day a nilakaraya can institute a partition action, though he is notthe owner of his panguwa, by virtue of the special provisions (sec. 54et seq.) in the Partition Act No. 16 of 1951.
I am in respectful agreement with the previous decisions -of this Courtcited above and the opinion formed by the majority of the Judges inAppuhamy v. Monika (supra). I must confess I am unable to followthe view taken by De Sampayo J. If a praveni nilakaraya cannotbring an action for partition it can only be on the ground that the landdoes not belong to him for if it does he is entitled to compel a partition.The relevant words of section 2 of the repealed Partition Ordinancewhich was considered in that case are “When any landed property1 (1906) 3 Bed. Report* 67.2 (1907) 3 Bed. Reportf 264.
(1917) 19 N. L. R. 361.
2«J. N. B 171 (2/59)
210
BASNAYAKE, C.J.—Berath v. The Attorney-General
t
shall belong in common to two or more owners, it is and shall be competentto one or more of such owners to compel a partition of the said property.
If it is not rights of ownership that the ninda lord has what are hisrights ? A ninda lord can gift, sell, or mortgage his nindagama, hisheirs can inherit it, or his rights can be sold in execution against him(TiUekeratne v. Dingey Homy) A nindagama can be acquired by pres-cription (G. P. Samanmnghe v. Badage Weerapulia and others2) byestablishing that a person has enjoyed the ninda lord’s rights over everycomponent part of the nindagama for the prescribed period.
In the course of his judgment in Samarasinghe's case Clarence A.C.J.observed —
The entry in the services tenures commutation register, though con-clusive against the tenants on the question of tenure, is not conclusiveagainst anybody on the question—Who is the owner of the nindagama ?
It appears from the judgment in that case that the fact that the nindalord is the owner of the nindagama was never in doubt or dispute. Ourlegislation has always assumed that the ninda lord is the owner of thenindagama and in the decisions of this Court too the ninda lord hasalways been regarded as the owner of the service lands of the nindagamaand the praveni nilakaraya as his tenant. However extensive the rightsof a praveni nilakaraya may have become in the course of time still henever became the owner of his holding ; he remained a nilakaraya.
I shall now turn to section 3 (1) (V) of the Land Redemption Ordinance.It speaks of agricultural land “ transferred by the owner of the land toany other person in satisfaction or part satisfaction of a debt which wasdue from the owner to such other person and which was, immediatelyprior to such transfer, secured by a mortgage of the land ”. In the instantcase the transfer was by the praveni nilakaraya of his interests in theholding of which as I have said above he is not the owner. It was notthe land that was transferred, but the right to possess and enjoy it withthe attendant rights of a praveni nilakaraya subject to the rendering ofservices or payment of commuted dues. The debt was not due from theowner but from his tenant the 2nd defendant. The debt of the praveninilakaraya the 2nd defendant was not secured by a mortgage of the landbut by a mortgage of the 2nd defendant’s rights as praveni nilakaraya.It will therefore be seen that section 3 (1) (6) has no application whatso-ever to the transactions evidenced by deeds 1D4 and 1D5. The LandCommissioner had therefore no authority under section 3.(1) (b) of theLand Redemption Ordinance to acquire the lands. His determinationthat the lands should be acquired is not one to which sub-section (4)applies as the determination which is declared by that provision to befinal is a determination in a case in which “ he is authorised by sub-section (1) to acquire the lands”. The meaning and effect of sub-section (4) has been discussed in my judgment in Ladamuttu PiUai v.Attorney-General (supra). In this case too the Land Commissioner’s deci-sion is not final as he has by a wrong construction of the expressions“ owner ” and “ land ” in seotion 3 (1) (b) given himself a jurisdiction he
1 Ramtmathan 1860-61-62, p. 114.
* (1882) S S. C. C. 40.
BASNAYAKE, GJ.—Herath a. The Attorney-General
211
did not have. I think I should take this opportunity of referring tothe case of Bogolle Punchiralct and others v. Kadapatwehera Ding andothers1 (which was not cited in my previous judgment) wherein a similarmatter under the Service Tenures Ordinance was decided. In that case itappeared that the Service Tenures Commissioners had travelled outsidetheir powers and entered in the register they were authorised to makeunder the Ordinance particulars which they were not required to deter-mine or enter in the register. The defendants claimed that their deter-mination of the matters they were not empowered by the Ordinance todetermine was not final and conclusive as the finality and conclusive-ness conferred on their determination by section 9 of the Service TenuresOrdinance did not extend to the determinations made outside the scopeof their authority. This Court upheld their submission.
There is a further circumstance which appears in document P15 whichcannot be allowed to pass unnoticed. The acquiring officer appears tohave acquired the interests of the dewale as well. His act is clearly illegal.The praveni nilakaraya did not, and could not in law, transfer to hiscreditor the rights of the ninda lord, the dewale, nor did he purport to doso. The authority granted by section 3 (1) (b) is to acquire land trans-ferred by the owner in satisfaction or part satisfaction of a debt which wasdue from the owner and which was immediately prior to such transfersecured by a mortgage of the land. The ninda lord owed no debt, hisrights were not secured by a mortgage, he did not transfer his rights to the2nd defendant. Clearly the Land Commissioner had no authority toacquire the ninda lord’s rights and his determination to acquire his rightsbeing illegal cannot be final.
The result of this intrusion on the rights of the ninda lord is that thedewale has been illegally deprived of its rights to the services it received inrespect of these lands of the kapu panguwa and the 2nd defendant whopossessed the lands under a tenure which obliged him to render servicesor pay commuted dues is now in occupation of them by virtue of thepermit given to them by the Crown without any such obligation. TheLand Commissioner’s action in acquiring the interests of the nilakarayaand the dewale are both illegal and must be declared null and void.
I shall now deal with the question whether the legality of a declarationunder section 5 (1) of the Land Acquisition Act as modified for the purposeof the Land Redemption Ordinance can be canvassed in these proceedings.The Land Redemption Ordinance adapts the machinery of the LandAcquisition Act for the purpose of acquisition under the Ordinance.Provision for such adaptation is made in section 3 (5) of the Ordinance,the relevant portion of which reads—
Where the Land Commissioner determines under sub-section (4)that any land shall be acquired, the purpose for which that land is tobe required shall be deemed to be a public purpose, and the provisionsof the Land Acquisition Act, subject to the exceptions, substitutionsand modifications set out in the First Schedule, shall apply for thepurposes of the acquisition of that land …”
1 (1884) 6 S. C. C. 157.
212
BASRA YAKE, C.J.—Serath ». The Attorney-General
We are here concerned with the modified sub-sections (1) and (2) ofsection 5 of the Land Acquisition Act. They read as follows :—
Where the Land Commissioner determines that any land shallbe acquired for the purposes of the Land Redemption Ordinance, theMinister shall make a written declaration that such land is needed for apurpose which is deemed to be a public purpose and will be acquiredunder this Act, and shall direct the acquiring officer of the province ordistrict in which such land is situated to cause such declaration in theSinhalese, Tamil and English languages to be published in the Gazetteand exhibited on some conspicuous places on or near such land.
A declaration made under sub-section (1) in respect of any landshall be conclusive evidence that such land is needed for a purposewhich is deemed to be a public purpose.
It would appear from the copy of the declaration 1D1 that the Ministerpurporting to act under section 5 of the Land Acquisition Act on 10thMay 1951 made the following declaration:—
Declaration under Section 5 of the Land Acquisition Act,
No. 9 of 1950
Whereas the Land Commissioner has determined that the land des-cribed in the Schedule hereto shall be acquired for the purpose of theLand Redemption Ordinance, No. 61 of 1942:
Now therefore, I, Dudley Shelton Senanayake, Minister of Agricultureand Lands, do hereby declare under section 5 (1) of the Land AcquisitionAct, No. 9 of 1950 (read with section 3 (5) of the said Ordinance asamended by section 62 of that Act) that the said land is needed for apurpose which is deemed to be a public («tc) and will be acquired underthat Act.
In the first place the caption to the declaration is inaccurate. The textof the declaration shorn that it is not one which purports to be madeunder section 5 of the Land Acquisition Act, but one which purports tobe made under section 5 (1) of the Land Acquisition Act as modified forthe purposes of the Land Redemption Ordinance. Though, where thestatute does not require that a declaration should contain a caption, anincorrect caption to a declaration which is legal in all respects does notvitiate such a declaration, it is important that public functionaries chargedwith the responsibility of making statutory declarations, especially whenthey have far reaching consequences, should exercise extreme care inmaking them and they should not leave room for the impression that thedeclarant failed to give his mind to the document he was signing. Forif it can be established that the declarant signed a document of thecontents of which he was not aware he cannot be said to have dischargedthe function entrusted to him by the statute.
It would appear from the recital that the foundation of the declarationis the determination of the Land Commissioner under section 3 (4) of theLand. Redemption Ordinance. I have shown above that the lands in
BA8NAYAKE, C. J.—Eerath v. The Attorney-General
213
question are not lands the Land Commissioner is authorised by section3 (1) (6) to acquire and that his determination is in consequence not finaland that it being not a determination which he is authorised to makeunder the statute is bad in law and does not afford the Minister legalauthority to make the declaration he has made. Where there is no validdetermination under that Ordinance the Minister can make no declarationunder section 5 (1) of the Land Acquisition Act as modified and thereforethe declaration he has made in respect of the lands in the instant case isa nullity and is of no effect in law and is therefore not the statutorydeclaration contemplated in section 5 (1).
Where the declaration which purports to be made under section 5 (l)isa nullity it does not become “conclusive evidence” of the fact that the landis needed for a purpose which is deemed to be a public purpose; becauseit is only a valid declaration that is given that effect by the Act. Theopening words of section 5 (2) make the position clear. They are “ Adeclaration made under sub-section (1) ”, i.e., a declaration validly madeunder that sub-section, and not “ A declaration which purports to bemade under sub-section (1) ” though not validly made thereunder.Similarly the publication of an invalid declaration in the Gazette will notbe “conclusive evidence” of the fact that a declaration under sub-section (1) was duly made, for sub-section (3) also provides that thepublication of a declaration under subsection (2) in the Gazette shall beconclusive evidence of the fact that such declaration was duly made. Aninvalid declaration has the same effect as if no declaration was ever madeand cannot be acted on and confers no authority for taking the stepsconsequential on a valid declaration under the Land Acquisition Act asmodified and does not therefore have the conclusiveness given by section5 (2) to a valid declaration.
There is a further inaccuracy in the declaration in that it states that theland will be acquired under the Land Acquisition Act. The acquisitionis under the Land Redemption Ordinance; but the legislature has autho-.rised the use of the machinery of the Land Acquisition Act as modifiedfor the purposes of the Land Redemption Ordinance. It is the failureof the acquiring officer to appreciate the fact that the authority for theacquisition of lands for the purposes of the Land Redemption Ordinanceis in that Ordinance itself that has led him to acquire the rights of thedewale when he had no authority to do so. The copy of the declarationproduced by the Attorney-General 1D1 is in English alone. Neithercopies nor originals of the Sinhalese and Tamil declarations have, beenproduced nor is there any evidence that the Minister ever made them.
I am of the view that sub-section (1) of section 5 of the Act requires theMinister to make a declaration in each of the three languages and therequirements of the section are not satisfied if he does not do so.
Sub-section (1) of section 5 further requires the Minister to direct theacquiring officer of the province or district in which the land which isto be acquired is situated to cause such declaration in the Sinhalese,Tamil and English languages to be published in the Gazette and exhibitedin some conspicuous places on or near the land. There is no evidencethat such a direction was given nor is there any evidence that the acquir-ing officer of the province or district in which the land is situated caused
2f4BASNAYAKE, C.J.—Herath v. The Attorney-General
the declaration to be published in the Gazette in Sinhalese and Tamil.Learned counsel for the Crown tendered at the trial, not the Gazette inwhich the declaration was published, but an extract from the GovernmentGazette certified by an Assistant Land Commissioner (1D2) in which thedeclaration appears in the English language alone. This Court hasalways regarded the requirement that a publication should be made inEnglish, Sinhalese and Tamil as imperative. Failure to publish in allthree languages has been regarded as vitiating the publication. Thecases of H. Foenander v. M. Ugo Fernando1 and Dias v.A.G.A., MaJtara zare two of the cases that take that view. Apart from the fact that thedeclaration is invalid for the reason that the condition precedent to themaking of the declaration is absent these other defects I have pointed outabove also affect its validity.
I shall now deal with the contention of learned counsel for the Attorney-General that sub-section (2) of section 5 of the Act as modified precludes theplaintiff from questioning in these proceedings the legality of a declarationmade by the Minister, whether or not his action is within the powers con-fided in him by the legislature. No decision of this Court or of anySuperior Court in any other part of the Commonwealth was cited in supportof his contention. The sub-section embodies a rule of evidence and nota rule of law. In the instant case the plaintiff is not seeking to producecounter evidence to prove that the land is not needed for a purposewhich is deemed to be a public purpose ; but he is questioning the legalityof the declaration and the words “ conclusive evidence ” do not precludehim from doing so. The expression “conclusive evidence” which isfamiliar in the law of England and the United States though used in someof our statutes when a rule of evidence is sought to be enacted is not usedin our Evidence Ordinance which uses the expression “ conclusive proofThe former expression is used in the same sense as the latter and I for onethink the latter expression is more precise and for that reason the betterexpression. The effect of the words “ conclusive proof ” in the EvidenceOrdinance is thus stated therein (section 4 (3)):
When one fact is declared by this Ordinance to be conclusive proof ofanother, the court shall on proof of the one fact regard the other asproved, and shall not allow evidence to be given for the purpose ofdisproving it.
Here it is not sought to lead evidence to disprove the declaration madeby the Minister. Learned counsel’s contention is not sound and cannotbe upheld.
Even if the declaration had been a declaration intra vires of the statuteits imperfections are so many that it cannot be received even for thepurpose for which section 5 (2) declares it to be “ conclusive evidence
The rule of construction applicable to provisions which declare thedeclaration or certificate of a person who is not before! Court conclusive
1 (1881) 4 S. G. C. 113.
*(1898) 3N.L.R.175.
BASNAYAKE, G.J,—Herath V. The Attorney-General
215>
evidence of a fact is stated thus by Viscount Dunedin in the case ofPenrikyber Navigation Colliery Co. v. Edwards 1—
I think that a provision which gives this effect to a certificate of aperson who is not before the Court, and makes it conclusive againstthe evidence of competent witnesses who are, is, if any provision everis, one which must be applied strictly, and must be limited to an exactcompliance with its terms.
As the question whether the declaration in question may be admittedas conclusive evidence of the fact that the lands referred to in the plaintare needed for a purpose which is deemed to be a public purpose doesnot arise for decision on this appeal it is not necessary to discuss thematter further.
Learned counsel for the Attorney-General contended that the Ordermade by the Minister under section 36 of the Land Acquisition Act wasin the way of the plaintiff and that he could not succeed unless and untilthat Order is set aside. That contention would be sound only if theOrder he had made is one which the Minister was entitled to make underthe Act and he had complied with its requirements in doing so. Butthe Order in the instant case is one which he had no power in law to makeand in the making of which he has not complied with the requirements ofthe Act. There being no valid declaration under the modified section5 (1) of the Act, the acquiring officer had no authority in law to proceedunder section 6 and the subsequent sections'. The legal authority to-proceed under these provisions flows only from a valid declaration undermodified section 5 (1). All the steps taken by the acquiring officer andthe Minister are therefore null and void and the position in law is as ifboth of them had taken no action under the statute and as if no Orderunder section 36 was ever made. The publication of a void Order undersection 36 authorising the acquiring officer to take possession of a land,does not have the effect of vesting that land in Her Majesty as provided insection 37 (a) of the Act. No question of setting aside the Order thereforearises. There being no Order under section 36 in existence in law theLand Commissioner had no power to alienate the two lands in questionunder section 5 (1) of the Land Bedemption Ordinance. That being thecase the 2nd defendant ’s possession is illegal and he is liable to be ejected,from the two lands.
I now come to the plea of res judicata taken by the Attorney-General..
It was raised in paragraph 7 of the amended answer filed on 8th September1954 which reads—
(a) The plaintiff sued the Land Commissioner and- the AssistantGovernment Agent, Nuwara Eliya in action No. L. 3632 of the DistrictCourt of Kandy for a declaration that the lands described in the plaintin this action are not liable to be acquired under the provisions of the-Land Redemption Ordinance and for an injunction restraining thesaid Assistant Government Agent from proceeding with the acquisitionof the said lands.
' The said action was dismissed with costs.
1 (1933) A. 0. 28 at 38.
216
BASNAYAKE, C..J.—Hetath v. The Attorney-General
The defendant pleads that the decision in the said case is ResAd judicata of the matters in issue in the present action between thePlaintiff and the Crown, and that accordingly the plaintiff cannotmaintain this action against the Crown.
Shortly the facts relevant to this plea are as follows :—On 23rd June1952 the plaintiff instituted an action against the Land Commissioner andthe Government Agent of Nuwara Eliya the Acquiring Officer. In hisplaint he alleged—
The plaintiff pleads that the said lands do not fall within any ofthe categories of lands that are liable to be acquired under the saidOrdinance and that the acquisition of them is in excess of the powersunlawful and is a denial of the rights of the plaintiff who holds the saidlands by payment of dues and or performance of services to the PattiniDewale at Hangurariketa.
The continuance of the proceedings for acquisition will cause lossand damage to the plaintiff.
A cause of action has therefore accrued to the plaintiff to suethe defendant for a declaration that the said lands are not liable to beacquired’ under the provision of the Land Redemption Ordinance andfor an injunction prohibiting the 2nd defendant from carrying on anyfurther the proceedings to acquire the lands.
He asked—
(а)for a declaration that the lands and premises more fully in theSchedule at the foot hereof are not liable to be acquired under theprovisions of the Land Redemption Ordinance,
(б)for an injunction restraining the 2nd defendant abovenamed fromproceeding any further with the said acquisition until the final deter-mination of this action.
The defendants filed a joint answer denying all the allegations of theplaintiff except that the lands are subject to performance of services tothe Pattini Dewaie of Hanguranketa. They also pleaded that the Courthad no jurisdiction to hear and determine the action. The plaintiffhaving failed to appear on 13th October 1953, the day fixed for the hear-ing of the action, it was dismissed under section 84 of the Civil ProcedureCode. His attempt to show cause for his non-appearance was unsuccess-ful.
BASNAYAKE, C.J.—Herath v. The Attomey-Qeneral
217
I shall examine the features of the two actions before. discussing the■question whether the plaintiff’s present action is barred by'the dismissal•of the Kandy case.r. ;, ,
The present action is against the Attorney-General and the 2nd defen-dant the mortgagor. The Kandy case was against the Land Commissionernomine officii and E. G. Goonewardene, Assistant Government Agent,Nuwara Eliya. In the present action the plaintiff seeks a declaration oftitle to the lands in question and in addition to it or in the alternative adeclaration of his right to their possession and to have the 2nd defendantejected therefrom. In the Kandy case the plaintiff sought a declarationthat the lands in question were not liable to be acquired and asked for aninjunction restraining the Assistant Government Agent from proceedingwith the action. The plaintiff bases both actions on the ground that theLand Commissioner has no authority in law to acquire the lands.
This is a convenient point to discuss the scope of the doctrine of resjudicata. It has its origin in the Roman Law where it is stated thus :Res Judicata dicitur, quae fimm controversiarum pronunciations judicisaccipit, quod vel condemnations vel absolutions contingit (Digest XLII,Tit. I, Sec. 1). Scott translates it into English thus: “ By res judicata ismeant the termination of a controversy by the judgment of a Court.This is accomplished either by an adverse decision, or by discharge fromliability (The Civil Law, Vol. 9, p. 228.) Hukm Chand expresses theview that this doctrine is founded upon the maxim nemo debet bis vexaripro una et eadem causa, which is itself an outcome of the wider maxim,interest reipublicae ut sit finis litium (Hukm Chand, Res Judicata, 1894Edn, p. 5). The Roman doctrine which has been adopted in RomanDutch Law as well cannot be extended to cases not falling within itsambit except by legislation. Voet defines it in almost the same terms asthe Digest: Res judicata est, quae finem controversiarum pronunciationsjudicis accepit, absolutions vel condemnations (Voet, Bk XLII, Tit. I,Sec. 1). Gane renders it into English thus (Vol. 6, p. 297): “A resjudicata is a matter in which an end has been put to disputes in a decla-ration of a judge by absolution or adverse judgment.” In our legalsystem the doctrine being one that appertains to the field of civil procedureprovisions against parties being vexed twice for the same cause of actionand provisions designed to prevent interminable litigation betweenparties have been enacted in our Civil Procedure Code. Similar thoughnot the same provisions exist in the Indian Civil Procedure Code. Theprovisions of our Code in my opinion go beyond the scope of the doctrineas understood in Roman and Roman Dutch Law. The early Englishdecisions adopted the doctrine as understood in Roman Law. This is
2®®BASNAYAKE, C.J.—Herath «. The Attorney-General
clearly shown in the following observations of Lord Romilly in Jenkins v.Robertson1: “ Res Judicata by its very words, means a matter uponwhich the Court has exercised its judicial mind, and has come to theconclusion that one side is right, and has pronounced a decisionaccordingly. In my opinion, res jitdicata signifies that the Court has,after argument and consideration, come to a decision on a contestedmatter. ” Some of the early English eases adopt Vinnius's definitionof res judicata. In Hunter v. Stewart2 Lord Westbury cited withapproval the following passage from his commentary on the Institutes(Lib. IV, Tit. XIII, S. 5): “ Exceptio rei judicatae non aliter agenti obstatquarn si eadem quaestio inter easdem personas revocetur, Usque ita demumnocet, si omnia sint eadem, idem corpus, eadem quantitas, idem jus, eademcausa pet&ndi, eadem conditio personarum. ”
As the English decisions I have cited set out the basic principles of thelaw of res judicata, it is unnecessary to refer to later English decisionsfor in England the law of Res Judicata is treated as a branch of the law ofestoppel. In our law the subject of res judicata appertains to the provinceof civil procedure properly so called. In seeking the aid of Englishdecisions for the solution of our problems of res judicata we have to bearin mind this fundamental difference between the two systems. InIndia too the subject has been dealt with in the same way as we havedealt with it; but when referring to Indian decisions we should notforget that almost from the earliest times statutory provision had beenmade in that country for barring actions on the ground of res judicata.In the result the decisions of the Indian Courts and of the Privy Councilin appeal from those Courts were more concerned with interpreting therelevant statutes than in expounding the principles of res judicata. N ever-tbeless some of the judgments contain valuable discussions of the principle.
In this country our Civil Procedure Code very properly makes provisionto ensure within limits the observance of the doctrine of res judicata andthe maxims nemo debet bis vemri pro una et eadem causa and interestteipubUcae at sit finis litium. The provisions are sections 34, 207, and406. In the case of Samichi v. Pieris3 which was heard bya bench of three Judges two of the Judges refused to uphold thecontention that the whole of our law of res judicata is to be found insections 34, 207, and 406 of the Civil Procedure Code. Lascelles C.J.observed : “ The law of res judicata has its foundation in the civil law,and was part of the common law of Ceylon long before Civil ProcedureCodes were dreamt of. But even if these sections contain an exhaustive
1 (1867) L. R. 1H. L. (Sc. Ap.) p. 117.
* 4 De G. R. <fe J. 176, (1861) 45 E. R. 1151.* (1913) 16 N. L. R. 257.
BASNAYAKE, C.J.—He/ralh v. The Attorney-General
2l»
statement of the law on this, point, I cannot see that there is anything inthem which is inconsistent with the principles which have been followedin the English, Indian and American CourtsWood Renton J. observedin the same case : “ It is suggested that the principles of English andIndian law as to res judicata are excluded by section 207 of the Civil Pro-cedure Code. I see no reason to alter the opinion which I have alreadyexpressed in various other cases that section 207 and similar sections ofthe Civil Procedure Code do not embody the whole law as to res judicatain Ceylon The dissenting Judge, Pereira J., took the view that ourlaw of res judicata was in the Civil Procedure Code and that we cannot gooutside it.
With the greatest respect to the two most eminent Judges who formedthe majority I find myself unable to agree that theirs is the properapproach to the interpretation of a Code. The principles of interpreta-tion applicable to a Code are stated in the case of Bank of Englandv. Vagliano Brothers 1. In that case Lord Halsbury stated at page120: “ I am wholly unable to adopt the view that where a statute isexpressly said to codify the law, you are at liberty to go outside the Codeso created, because before the existence of that Code another lawprevailed. ”*
In the same case Lord Herschell made the following remarksat page 144 :—
“ My Lords, with sincere respect for the learned Judges who havetaken this view, I cannot bring myself to think that this is the properway to deal with such a statute as the Bills of Exchange Act, which wasintended to be a code of the law relating to negotiable instruments.
I think the proper course is in the first instance to examine the languageof the statute and to ask what is its natural meaning, uninfluenced byany considerations derived from the previous state of the law, and notto start with inquiring how the law previously stood, and then,assuming that it was probably intended to leave it unaltered, to seeif the words of the enactment will bear an interpretation in conformitywith this view.
“If a statute, intended to embody in a code a particular branch ofthe law, is to be treated in this fashion, it appears to me that its utilitywill be almost entirely destroyed, and the very object with which itwas enacted will be frustrated. The purpose of such a statute surelywas that on any point specifically dealt with by it, the law should beascertained by interpreting the language used instead of, as before,
»(1891) A. C. 107.
U20BASITAYAKE, C.J.—Herath v. The Attorney-General
by roaming over a vast number of authorities in order to discover whatthe law was, extracting it by a minute critical examination of theprior decisions, dependent upon a knowledge of the exact effect evenof an obsolete proceeding such as a demurrer to evidence. I am ofcourse far from asserting that resort may never be had to the previousstate of the law for the purpose of aiding in the construction of theprovisions of the code. If, for example, a provision be of doubtfulimport, such resort would be perfectly legitimate. Or, again, if ina code of the law of negotiable instruments words be found which havepreviously acquired a technical meaning, or been used in a sense otherthan their ordinary one, in relation to such instruments, the sameinterpretation might well be put upon them in the code. I give theseas examples merely; they, of course, do riot exhaust the category.What, however, I am venturing to insist upon is, that the first steptaken should be to interpret the language of the statute, and that anappeal to earlier decisions can only be justified on some special ground. ’'
•
As stated earlier res judicata is dealt with in Roman Dutch Law,a matter of Civil Procedure, as an “ exceptio ” which expression is usedin the sense of a special defence or a special plea. Yoet defines it thus :“ Now an exception is the shutting out of an action which is available instrict law. ” (Bk. XUV, Tit. I, S. 2, Gane Yol. 6 p. 337.) Res Judicatais an exception that must be pleaded and tried. I shall now examine therelevant provisions of our Code.
The first section that merits consideration is section 34. It providesas follows:—
“ (1) Every action shall include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action, but aplaintiff may relinquish any portion of his claim in order to bring theaction within the jurisdiction of any court.
If a plaintiff omits to sue in respect of, or intentionally relin-quishes any portion of his claim, he shall not afterwards sue in respect ofthe portion so omitted or relinquished. A person entitled to more thanone remedy in respect of the same cause of action may sue for all orany of his remedies; but if he omits (except with the leave of theCourt obtained before the hearing) to sue for any of such remedies, heshall not afterwards sue for the remedy so omitted
The Attorney-General does not claim that the plaintiff is barred bysection 34 (2) from bringing his present action. The Kandy case wasbrought while the acquisition was threatened and before the lands were
BASNAYAKE, C.J.—Herath v. The Attorney-General
221
actually acquired and the plaintiff is not now seeking to sue for a remedyhe omitted to seek in the Kandy case, nor is he seeking to enforce a claimhe relinquished then.
The next provision that calls for attention is section 207. It reads:
“ All decrees passed by the court shall, subject to appeal, when anappeal is allowed, be final between the parties ; and no plaintiff shallhereafter be non-suited.
Explanation. Every right of property, or to money, or to damages,or to relief of any kind which can be claimed, set up, or put in issuebetween the parties to an action upon the cause of action for which theaction is brought, whether it be actually so claimed, set up, or put inissue or not in the action, becomes, on the passing of the final decreein the action, a res adjudicata, which cannot afterwards be made thesubject of action for the same cause between the same parties. ”
The first question that needs consideration is whether the expression“ all decrees ” includes decrees entered under section 84. Now section207 occurs in a chapter which has a heading “ Judgment and Decree ” andmakes elaborate provision regarding the pronouncing of judgment, thedrawing up of decrees. Section 184 provides that upon the evidencewhich has been duly taken or upon the facts admitted in the pleading orotherwise and after the parties have been heard either in person or bytheir pleaders judgment shall be pronounced in open court after noticeto the parties. Section 188 provides that as soon as the judgment ispronounced a formal decree bearing the same date as the judgment shallbe drawn up by the Court in the form No. 41 in the First Schedule or tothe like effect specifying in precise words the order which is made bythe judgment in regard to the relief granted or other determination ofthe action. The succeeding sections make elaborate provisions regardingdecrees in respect of immovable property, movable property, interest,specific performance, payment by instalments, set off, mesne profits,accounts etc.
Section 206 provides that the decree or certified copy thereof shallconstitute the sole primary evidence of the decision or order passed bythe Court. The preceding provisions of the Chapter in which section 207occurs to my mind show that the decrees spoken of in that section aredecrees drawn up by the Court under section 188 after judgment has beenpronounced in the manner contemplated in sections 184, 185, 186 and187. Such decrees are final between the parties subject to appeal.Section 207 will therefore apply only to decrees pronounced after therehas been an adjudication on the merits of a suit and not to decrees enteredunder section 84.
BASNAYAKE, C.J.—Bemifc r. The Attorney-General
Section 84 of the Civil Procedure Code under which the plaintiff’saction was dismissed provides that if the plaintiff fails to appear—
(а)on the day fixed for the appearance and answer of the defendant, or
(б)on the day appointed—
for the filing of the answer, or
for the filing of replication, or
for the hearing of the action, and
if the defendant on the occasion of such default of the plaintiff to appearis present in person or by proctor, and does not admit the plaintiff’s
claim, and does not consent to postponement of the day for the hearingof the action, the Court shall pass a decree nisi in the Form No. 21 inthe First Schedule, or to the like effect, dismissing the plaintiff’s action,which said decree shall, at the expiration of fourteen days from the datethereof, become absolute, unless the plaintiff shall have previously, onsome day of which the defendant shall have notice, shown to the Courtgood cause, by affidavit or otherwise, for his non-appearance.
Assuming for the moment that the action had been rightly dismisseddoes the dismissal operate as res judicata. Clearly there has been nojudgment in the sense contemplated in section 184 of the Code. In thisconnexion Spencer Bower’s observation at page 19 of his treatise onRes Judicata is apposite and bears repetition.
Obviously, there is prima facie no decision in civil any more than inmilitary warfare, where the attacking party sounds a retreat for stra-tegic purposes. His retirement may indicate a perilous or even disastrousposition for the moment, but there is no battle, and no “ decision ” ;indeed, his very object in declining the former is to escape the latter.This was the effect of the old common law non suit, in which theplaintiff voluntarily withdrew from the contest at the trial for theexpress purpose of avoiding any judgment, and reserving his liberty tobring a fresh action. It is true that, in the Supreme Court, thisancient right of a plaintiff, and several, analogous rights, both inlaw and in equity, to abandon his claim are either abolished orqualified, but the authorities on the old practice are still very usefulas illustrations of the principle now under discussion.
In the case of Brandlyn v. Ord1 it was held by Lord Hardwicke thata bill dropped for want of prosecution is never to he pleaded as a decreeof dismissal in bar to another bill. The view I have taken of section207 of the Code is in accord with the basic concepts of Bes Judicata.A decree of dismissal under section 84 of the Civil Procedure Code doesnot in my opinion operate as Bes Judicata and the learned District Judgeis right in so holding.
I shall now discuss the meaning of the words “ no plaintiff shall here-after he non-suited ”. Non-suit is an old English common law procedure
1 [1738) 1 Atk. 571, 26 E. E. 359.
BASNAYAKE, C.J.—Herath v. The Attorney-General
no longer in force in England. When the plaintiff faded to make out alegal cause of action or renounced it owing to the discovery of some erroror defect in it or failed to support his pleadings by any evidence after thematter had so far proceeded when the stage of the verdict had beenreached the Judge ordered a non-suit. A non-suited plaintiff might onpaying all costs recommence his action. A procedure somewhat akin tonon-suit is to be found in section406 which reads as follows:—
If, at any time after the institution of the action, the Court issatisfied on the application of the plaintiff (a) that the action mustfail by reason of some formal defect, or (b) that there are sufficientgrounds for permitting him to withdraw from the action or to abandonpart of his claim with liberty to bring a fresh action for the subject-matter of the action, or in respect of the part so abandoned, the courtmay grant such permission on such terms as to costs or otherwise as itthinks fit.
If the plaintiff withdraw from the action, or abandon part of hisclaim, without such permission he shall be liable for such costs as thecourt may award, and shall be precluded from bringing a fresh actionfor the same matter or in respect of the same part.
I now come to the explanation to section 207. According to it for amatter to be res adjudicate the previous action which is pleaded as a barto the subsequent action must be—
(а)for the same cause of action, and
(б)between the same parties.
In the “ same cause ” is included every right to property, or to money,or to damages, or to relief of any kind which can be claimed, set up orput in issue between the parties upon the cause of action for which theaction is brought. The instant case and the Kandy case are not betweenthe same parties. The relief now claimed could not have been claimed inthe Kandy case and the matters in issue except one are not the same.
Before I conclude I wish to observe that I find myself unable to appre-ciate the attitude of the Crown in raising the plea of res judicata in theinstant case. In the amended answer in the Kandy case the officers ofthe Crown who were represented by the Crown Proctor and who mustundoubtedly have acted on the advice of the Crown legal adviser took theplea that the Court had no jurisdiction to hear and determine the action.If the legal advisers of the Crown were satisfied of the soundness of thatplea, and I must assume that they were so satisfied, then the decree ofdismissal of the action was one made without jurisdiction. It is settledlaw that a judgment or decree of a Court acting without jurisdiction doesnot operate as res judicata. Why then did the Crown being satisfied thatthe Court had acted without jurisdiction raise the plea of res judicata inthe instant case ? We have had no explanation from the learned counselappearing for the Attorney-General. In this connexion I wish to repeat
£24PTJLLB, J.—Herath ». TAe Attorney-Qenetal
M-— –
the remarks of the Lord Chief Baron in the case of Deart v. Attorney-General 1 quoted by me in th9 citation from the judgment of Farwell
J. in Ladamuttu’s case {supra):
■ )>K
It has been the practice, which I hope never will be discontinued, forthe officers of the Crown to throw no difficulty in the way of proceedingsfor the purpose of bringing matters before a Court of Justice when anyreal point of difficulty that requires judicial decision has occurred.
As this is the fourth appeal in which we have been called upon to decidewhether a statutory functionary has acted within the ambit of his powersI wish to state that where statutory functionaries are vested withextraordinary powers such as those granted under the Land RedemptionOrdinance they should show the greatest care in exercising such powersentrusted to than by the legislature in the faith that they would regardthem as a sacred trust and show the greatest consideration to the rightsof the citizen. They should always give close attention and due consi-deration to the representations of those affected by the exercise of suchpowers, ever mindful of the fact that it is not every citizen that has themeans to assert his rights in the Courts if the functionary does not treattheir representations with the consideration they deserve. In the instantcase it would seem that in establishing his claim the plaintiff has had tospend more than the compensation he has been offered. The greater thepowers entrusted to a statutory functionary the greater should be thecare with which they are exercised.
1 allow the appeal with costs and direct that decree be entered as-prayed for with costs.
de Silva, J.—I agree.
Tulle, J.—
Three distinct matters have been raised in this appeal and the decisionof any one of them in favour of the defendants, who are the respondents,would conclude the appeal in their favour. The learned trial Judge heldthat although the 2nd defendant was the parave.ni nilakaraya of the landsin question he was none the less the owner for the purpose of satisfying therequirements of section 3 (1) (6) of the Land Redemption Ordinance,No. 61 of 1942. He also held that a declaration made by the Minister ofAgriculture and Lands dated the 10th May, 1951, under the provisions ofthe First Schedule to the Land Redemption Ordinance, as amended bysection 62 (1) of the Land Acquisition Act, No. 9 of 1950, ruled out eventhe possibility of challenging the proceedings taken to acquire the landson the ground that the Land Commissioner had exceeded his powers undersection 3 (1) (6) of the Land Redemption Ordinance. He did not, how-ever, uphold the plea raised by the Crown that the decree in D. C. Kandycase No. 3632 dismissing an action instituted by the plaintiff in 1952operated as res judicata.
1 1Y. <fc 0. Ex. p. 208.
PTJLLE, J.—Herath t-. The Attorney-General
225
In the case of Appuhamy et al. v. Menike et al. 1 a Bench ofthree Judges held that a paraveni nilakaraya claiming an undividedshare in a panguwa of a nindagama was not entitled under the PartitionOrdinance, No. 10 of 1863, to bring a suit for the partition of the land.Section 2 which lays down the prime condition for the institution of apartition action reads :
“ When any landed property shall belong in common to two or more•owners, it is and shall be competent to one or more of such owners to•compel a partition of the said property;….”
The submission on behalf of the appellants in that case was that,.although they and the defendants were paraveni nilaharayas, the panguwa“ belonged ” in common to them and that the appellants came withinthe description of ‘ ‘ one or more of such owners ’ ’. The reasons for holdingagainst the appellants are stated differently in the three judgments.Nevertheless, I am compelled to come to the conclusion that the onlybasis on which the decision can be interpreted is that the paraveni tenantscould not bring themselves within the scope of section 2, whatever each ofthe learned Judges thought was a good ground for denying their claim tobe owners. I fail to see why if they were owners they should have been;in the face ofthe clear provisions of the section, refused the right to put anend to the common ownership and why two of the Judges should regardthe indivisibility of the services due to the overlord as the only obstacleto a physical division of a panguwa or to a sale. I have had the advantageof reading in advance the judgment of my Lord, the Chief Justice, andI fully concur in the reasons given by him that a paraveni nilakarayacannot for the purposes of. section 3 (1) (b) of the Land RedemptionOrdinance, be regarded as an “owner”.
If it be correct that the 2nd defendant cannot bring himself under sec-tion 3 (1) (6) of the Land Redemption Ordinance, then I see no difficultyin holding that the steps taken to acquire the lands and vest title theretoin the Crown are of no avail in law. The preamble to the modified form•of section 5 of the Land Acquisition Act, No. 9 of 1950, which is incorpo-rated as an amendment to the First Schedule to the Land RedemptionOrdinance reads,
“ Where the Land Commissioner determines that any land shall beacquired for the purposes of the Land Redemption Ordinance, the Ministersshall make a written declaration. …”
1 [1917) 19 N. L. B. 361.
PULLE, J.—Herath v. The Attorney-General
To my mind a valid declaration by the Minister is dependent on avalid determination by the Land Commissioner and that an invalid deter-mination vitiates the steps taken thereafter to pot in motion the machineryof acquisition for the ultimate vesting of title to the lands in the Crown.
On the issue of res judicata the facts are fully set out in the judgment ofmy Lord, the Chief Justice, and I need not repeat them. It is commonground that at the time D. C. Kandy case No. 3632 was filed title to thelands in question was in the plaintiff. The plaint alleged in effect thattwo statutory functionaries one the Land Commissioner and the otherthe Assistant Government Agent had done acts, purporting to act underthe law, which were not within their powers and the plaintiff asked for adeclaration that the lands were not liable to be acquired under the LandRedemption Ordinance and for an injunction restraining the 2nd defen-dant who was the acquiring authority from taking further steps to acquirethe lands. The two defendants denied the allegations of illegality andin paragraph 6 of their joint answer they stated,
“ Further answering these defendants state that the Court has nojurisdiction to hear and determine this action. ”
The occasion to formulate issues did not arise as the action was dismissedfor default of appearance. That the dismissal of the action was a barto a fresh action against one or other of the parties on the same cause ofaction, assuming that the District Judge had jurisdiction to try case No.3632 on its substantive merits, is plain enough. If the court had nojurisdiction to grant relief to the plaintiff as against the defendants incase No. 3632 I fail to see how the decree in that case can operate as resjudicata, if the plaintiff afterwards seeks relief against the proper partiesin the proper forum.
In my opinion the plea of res judicata fails substantially for the reasonthat the parties in the two actions are different. I cannot bring myselfto hold that the defendants in case No. 3632 defended it as agents of theCrown. The complaint against them was that under colour of officethey were doing or had done acts unwarranted by law. It was open tothe Attorney-General to have got himself substituted in place of the LandCommissioner or the Assistant Government Agent. Had he done so hisposition in the present case would have been almost impregnable. I agreewith the learned District Judge that the plea of res judicata fails.
In the result the appeal should be allowed with costs both hereand below.
Appeal allowed.