HEVAWITARANE et al v. DANGAN RUBBER CO.LTD

015-NLR-NLR-V-17-HEVAWITARANE-et-al-v.-DANGAN-RUBBER-CO.LTD.pdf


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Present: Wood Benton A.C.J. and Perera J.HEYAWITABANE et al v. DANGAN RUBBER CO., LTD.14—D. 0. Kurunegatar 3,886-
Bone fide possessor—Claim to compensation—Notice of claim by owner—
Is possession thereafter mala fide?—Right of co-owner to sue
trespasser for ejectment from the whole lend—Service Tenures-
Ordinance—Entry in register—Paraveni—Manrweiia.
Possession by a purchaser of land does not become mala tide bythe mere notice of an adverse claim given by a person- claimingadversely to the purchaser (or his vendor).
A bone fide possessor need not necessarily be the owner of theproperty possessed, nor need he have a legal right to- possess it.It is sufficient if his possession is the result of an honest convictionin his mind of a right to possess.
The entry of any land in the register prepared under the ServiceTenures Ordinance, 1870, as a paraveni land: belonging to a specified*tenant is conclusive evidence as to the nature of rite tenure andrelevant, but not conclusive evidence as to the identity, of thetenant.
When a temple land is not entered in the list of paraveni land*of the temple, the necessary inference, at any rate unless- same-adequate explanation is given for the omission, is that the Com-missioners had determined that the tenure of the lands was notparaveni hut maruwena.
The owner of an undivided share of land might sue a trespasserto have his title to the undivided share declared, and for. ejectmentof the trespasser from the whole land.
T
HE facts have been stated as follows by the Acting ChiefJustice:—
The subject-matter of the dispute in this action consists of severalblocks of land admittedly falling within the gama of the RidiVihare in the District of Eurunegala.. The plaintiffs, who arepartners .in the firm of Don Carolis & Sonsr Colombo,,. allege that9-
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1913. these are paraveni lands, and claim them on a series of deedsBevawita* executed by some of the paraveni nilakarayas on October 15, 1906.
ranev. The first added party—the Dangan Rubber Company, Limited—IMbefoo. &Ueges that the lands in question are the property of the RidiLtd, Vihare itself, and as such are vested in its trustee. The trustee, onApril 25, 1906, leased them for fifty years to Herat RanasingheMudiyanselage Ukku Banda. Ranasinghe’s lease, which wasexecuted with the consent of the Provincial Committee under theBuddhist Temporalities Ordinance and the sanction of the DistrictJudge of Kurunegala, has been assigned by various mesne con-veyances to the first added party✓ The plaintifEs claim a declarationof title to the-lands in suit, the ejectment of the first added pairtytherefrom, and damages. The first added party claims to hold thelands under Ranasinghe’s lease, and, in the alternative, if theplaintiffs succeed on the issue of title, compensation for improve-ments. – The learned District Judge ha6 declared the plaintiffsentitled to the lands, with damages at the rate of Rs. 630 per annumfrom January 27, 1910—the date of the ouster alleged in the plaint—till their (restoration to possession, and with costs payable by thefirst added party. The claim of the latter to compensation isrejected. If compensation had been due, the District Judge wouldhave fixed it at Rs. 6,000. The first added party appeals. Rana-singhe’s lessor was not made a party to the action, nor was heexamined as a witness at the trial. The present trustee of theRidi Vihare—Delwita Tikiri Banda—was, however, made secondadded party, and called as a witness by the plaintiffs. He isaffected by the decree of the District Court only to this extent,that he has been left to pay his own costs. Against this order hehas not himself appealed, and he has not been made a respondentto the appeal by the company. The same observations apply tothe original defendant, Mr. Barnes. He is 'the superintendent ofRidigama estate under another company—the Kurunegala RubberCompany—and is not concerned personally with the matters heroin dispute. The only parties to this appeal are the Dangan RubberCompany and the plaintiffs.
Elliott (with him B. F. de Silva)', for the first added party,appellant.
H. J, C. Pereira (with him F. M. de Saram), for the plaintiffs,respondents.
Koch, for the second added party.
Cur. adv. vvlt.
October 14, 1913. Wood Renton A.C.J.—
His Lordship stated the facts, and continued: —
On two points—the rejection -of the company's claim for com-pensation and the award of damages in the plaintiffs' favour—the
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judgment under appeal, in my opinion, cannot stand. The DistrictJudge himself says that the company “ undoubtedly paid substan-tial consideration” for its purchase, and that ‘‘ no charge ofspeculation ” can fairly be brought against it. He holds it to bea mala fide possessor, however, and, therefore, disentitled tocompensation, because the work of developing the estate wascontinued without inquiry after the plaintiffs had, by their letterdated January 28, 1907 (A D 1), warned Mr. Martin, one of thesyndicate, from whom the company purchased, of their claim.But mere notice of an adverse claim is not sufficient to establishbad faith against a purchaser. ’“A bona fid$ possessor need notnecessarily be the owner of the property possessed, nor need hehave a legal right to possess it. It is sufficient if his possession isthe result of an honest convictibn in his) mind of a right to possess. "(Pereira, Bight to Compensation for Improvements, pp. 21, 22.)
Whether or not in the circumstances of this case the plaintiffshave succeeded in making out a prima facie title to the lands insuit, the title is undoubtedly oneN that the company, holding alease from the trustee of the vihare within whose, gama the landslie, might reasonably think itself justified in disregarding. Theevidence of Banasinghe, corroborated by that of Mr. Long Price,who took the first mesne assignment of the lease, and of Mr. Daniels,the surveyor, shows that as far back as April, 1906, Banasinghewas clearing portions'^-f the land, not only to the knowledge of, andwithout any objection by, the villagers, but with the assistanceof some of them. Mr: Palipane, Batemahafmaya of Weudawilihatpattu, produced an alleged petition (P 17) dated May 10, 1906,by seventeen inhabitants of Bidigama, complaining that thetrustee had surveyed their lands with the object of leasing .them toMr. Price, and stated that he had reported on this petition andcommunicated its purport to Mr. Price, both orally and in writing. #Mr. Price had no recollection of any such communication havingbeen made to him. But no doubt his memory may have been atfault in the matter. None of the villagers alleged to have signedthe petition were, however, called as witnesses to prove the fact,and in view of the affirmative evidence of the participation ofvillagers in Banasinghe^ operations, as well as of the character ofthe lease, the incident is wholly insufficient to bring home malafides to the company. It is unnecessary to labour this part of thecase further, as the plaintiffs’ counsel very fairly admitted that thecompany had a strong case or* the question of compensation, anddid not reinforce the observations of the learned District Judgeon the subject by any arguments of his own. . The quantum ofcompensation presents no difficulty, inasmuch as counsel for thecompany, on an expression of opinion by the Court .that the amountassessed by the District Judge was reasonable, at once said that hewas prepared to accept it if his appeal failed on the main issue.
IMS.
Wood
Bbmsok
A.C.J.
Hevawita*rane v.Dangan
Rubber Co.,Ltd.
1918.
Wood
Bbhtoh
A.CJ.
Eevawita-ram v.DanganRubber Co.Lid.
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The award of damaged to the plaintiffs cannot be'justified, in viewof their delay of three years in taking proceedings for the vindica-tion of their alleged' rights, and there is no evidence of any ousteron January 27, 1910.
We come now to the question of title. The lands, as I havesaid, admittedly fall within the gama of the Bidi Vihare. That* fact gives rise, however, to no presumption as to the nature oftheir tenure. The burden of proving, in the first place, that thelands are paraveni and, in the second place, that they or theirpredecessors in title are paraveni tenants of these lands, rests onthe plaintiffs. The entry of any land in the register prepared underthe Service Tenures Ordinance, 1870 (No. 4 of 1870), as* a paraveniland belonging to a specified tenant is conclusive evidence as tothe nature of the tenure (section 11) and relevant, blit not con-clusive evidence as to the identity of the tenant (Punchirala v.Ding,1' and cf. Francina v. Madduma Banda,2 „Samarasinghe v.Weerapulia 3.** When a temple land is not entered in the list of
paraveni lands of the temple, the necessary inference, at any rateunless some adequate explanation is given for the omission, is thatthe Commissioners had determined that the tenure of the lands wasnot paravem but maruwena(Per Lascelles C.J. and Grenier J.in Tikiri Banda v. Banasinghe Mudalige Appo&hamy.*)
The first point to be determined, therefore, is whether each ofthe lands claimed by the plaintiffs is shown by the register to be aparaveni land. A translation (P 12) of the register, accepted by'both sides as correct, has been put in evidence. I have checked init the names of each of the lands in- the various groups enumeratedin the decree. The lands Ehalapurana, Pahalapurana, Medapurana,and Bogahamulahena, located by the witness Kirihami as southof the eta, and, therefore, outside the limits of the blocks in dispute,must be excluded. But the register does show the names of lands■either identical with those for which decree has been entered, orso clearly resembling them as to make it difficult to doubt theiridentity, as being lands held by paraveni, tenure. If this be so,and if the lands in question are proved to be those in* dispute, itfollows that the trustee for the vihare had- no right t)o lease them,as they were not the property of the temple, and that the com-pany, holding under the trustee, is merely a trespasser, liable toejectment by the paraveni owners, should these come forward toenforce their rights. Have the plaintiffs succeeded in locating thelands which they claim?
His Lordship discussed the evidence, and continued: —
To this body of general evidence as to the location of the pangutvaemust be added the testimony of individual witnesses as to the
1 {1884) 6 S. C. C. 157.3 (1882) 5 S. C. C. 40.
* {1876) Ram. 1872-76, 307.4 (1912) S. C. Mins.,March 5,1912.
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location of particular henas. From the nature of the case, exactevidence as to the boundary and the extent of each hena is not tobe looked for. But the witness Mudiyanse locates the henas soldby him with fair precision as to three of the boundaries, and theboundaries so given are sufficient to bring the henas within Mr.Weeraratnes survey plan. The same observation applies to theevidence, so far as it goes, of the priest Sumanankara and of Leana-ralage Mudianse as to Uyanwatta. On the whole, after makingfull allowance for the vagueness, and in some respects infirmity, ofthe evidence, I think that the plaintiffs have succeeded in establish-.ing a prima facie identification of the lands in dispute with thoseof the same name entered in the register as paraveni lands. Havethey succeeded also inshowingthat thevendorsthrough whom
they claim are paraveniowners? It mustbe borne in mind that
when once the lands indisputehave beenshownto be paraveni
lands, acquired by thecompanyfrom thetrusteeof the temple
without the paraveni owners* consent, the company is in theposition of a trespasser, and cannot meet the plaintiffs' claim bypleading that some of the paraveni co-owners have not joined inthe transfers on which they rely. Any co-owner, or party claimingunder such a co-owner, is entitled to eject a trespasser from thewhole of the common property. (Unus Lebbe v. Zayee,l Greta v.Fernandot2) Moreover, prima facie evidence of title is all that isrequired in such an action. Prima facte evidence of title, ofcourse, them must be. In this connection I may notice inpassing a point made by counsel for the company on the strengthof evidence'given by Lansakara Mudiyanselage Mudiyanse to theeffect that about six of the lands sold by him were included in aprevious deed of gift by his father in favour of his stepsister PunchiMenika. As regards these lands, it was argued there was not onlyno evidence of title, but positive disproof of title. This argumentmight have prevailed if some attempt had been made to identifythese donated lands in the District Court. But although Mudiyansestated that the deed of gift gives the boundaries of the landscomprised in it, he does not seem .to have been asked to produceit, or to have been questioned as to what the names of these landsare. The evidence of Mudiyanse on this subject appears to havebeen used merely for the purposes of the; general attack on theplaintiffs’ title as a whole.
Hig Lordship further discussed the evidence as to title, andcontinued: —
I have now, I think, examined the wholei body of evidence onwhich the plaintiffs rely. It is in many respects vague andunsatisfactory. But precise evidence in support of title to landsof the character that we have here to deal with cannot readily be
IMS.
Wo6d
Renton*
A.C.J.
Hevawita- *tone v,DanganRubber Co.,Lid.
*• (1893) 3 S. C. R. $$.
* (1905) 4 Bed. 100.
1918.
Wood
Bbktok
A.C.J.
Hevatcita-rane v.DanganRubber Oo,fLtd.
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procured. In view of this circumstance, and of the failure of thecompany to call the trustee to warrant and defend the title, whichhe conveyed to Ranasinghe, I am not prepared to say that theprimd facie evidence does not justify a declaration of title and adecree for ejectment in the plaintiffs’ favour. I think that theplaintiffs and the company. should each bear .their own costs of theaction and of the appeal.* /
The formal judgment will be pronounced by my brotherPereira.
Pebeiea J-—
In this case the plaintiffs claim a declaration of title to, and seekto eject the first added party appellant from, certain allotments ofland which are part of the viharagama of the Buddhist templeknown as the Ridi Vihare. These allotments of land are mainlychenas or tenas, which may be classified, as the District Judge hasdone, in the following five panguwas:—
Lansakara Tennekoon Mudiyanselage panguwa.
Herat Mudiyanselage panguwa.
Two contiguous panguwas, which may be referred to as
the Naide panguwas.
Bomeria Dalupota panguwa.
Gammahe panguwa.
Of the panguwas mentioned here, the fourth is not in disputenow, and nothing more need be said about it.
' The lands of the viharagama referred to above appear to havebeen brought under the operation of the Service Tenures Ordinance,1870, and the paraveni panguwas of the viharagama appear tohave been registered in a register prepared under section 11 ofthe Ordinance. Document P 12 is a copy of that register. Undersection 11 of the Ordinance the. register, of course, is the bestevidence of the nature of each panguwa. The contention of theplaintiffs is that the panguwas claimed by them are entered in theregister as paraveni panguwas. If so. of course the plaintiffs areentitled to succeed in this action, provided they succeed in tracingtitle from persons whose names are entered in the register as thoseof the paraveni tenants.
His Lordship discussed the evidence, and continued: —
I think there is on the whole amply sufficient evidence of identityof the panguwas claimed by the plaintiffs with the panguwas enteredas paraveni property in the Service Tenures Register. This is aclear indication that the appellants had no title whatever to thelands claimed by the plaintiffs, and that they were mere trespasserson them. .
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It appears that, as regards the Naide panguwas and Uyanwatta,the plaintiffs are entitled to only certain shares -of the lands com-prised in them. The appellants’ counsel attempted to make , a strongpoint of this fact in favour of his clientsi, but- the mere fact thatthe plaintiffs are entitled, as regards some of the lands claimed,to an undivided share does not necessarily defeat the action. Asregards the rights of owners of undivided shares of land to suetrespassers, I have always understood the law, both before andafter the coming into operation of the Civil Procedure Code, to bethat the owner of an undivided share of land might sue a trespasserto have his title to the undivided share declared and for ejectmentof the trespasser from the whole land, the reason for this latterright being that the owner of the undivided share has an interestin every part and portion of the entire land (see section 12, CivilProcedure Code; Units Lebbe v. Zctyee; 1 Greta v. Fernando;2Amolisa v. Dissan 3).
1918.
Pempw J.
Hevaunta*rane v.
Rubber Go.,Ltd.
As regards the appellants’ claim to compensation for improve-ments, the District Judge has held that they were mala fide possessors.It is not necessary that I should give my reasons at length for mydecision on .the question here involved, or on that as to the sufficiencyof the amount of compensation as assessed by the District Judge,because the respondents’ counsel on the .one side, and the appellants’on the other, did not seriously press their respective contentions. Ido not think that there is anything in, the evidence to. show thatthe appellants did not act in the honest belief that they were entitledto the lands in dispute. The mere fact that a claim was made tothem by the respondents is insufficient to show that the appellants4acted mala fide, especially in view of the fact that the respondentstook no action to have their rights declared by the Court for nearlythree years. I see no reason to doubt that the appellants werebona fide possessors in the strict sense of the term, and I holdthat they are entitled to compensation; and I also think 'that theamount of compensation as assessed by the District Judge is fairand reasonable.
I would vary the decree—
(1) By declaring the plaintiffs entitled to .the henas, fields, &c.,mentioned in it of (a) Lansakara Tennekoon Mudiyanse-lage panguwa, (6) the Herat Mudiyanselage panguwa, and(c) the Bomeria Dalupota panguwa, and to shares of thehenas, &e., mentioned in the decree of Uyanwatta andNaide panguwas, with the exception of the henas Ehala-purana, Pahalapurana, Medapurana, and Bogahamula-hena, and, subject to the jus rejtentionis hereinaftermentioned, directing the ejectment of the first addedparty from all those lands.
(1893) 3 8. C. B. 56.
2 (1905) 4 Sal. 100.
* 4 N.L. R. 163.
1918
Pkbbxba J.
R*vawita-rane v.
-fitiftfar Co,,£«.
(2) By deleting the order for payment of damages (Bs. 680 perannum) by the first added party.
(8) By awarding to the first added party Bs. 6,000 as compen-sation for improvements, giving him also the, right ofretention of the property improved until that sum ispaid.
In the circumstances, I think that each party should bear his owncosts in both Courts.
Varied.