019-NLR-NLR-V-16-JAYASURIYA-et-al-v.-SINNO-APPU-et-al.pdf
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Present: Pereira J. and Ennis J.
JAYASURIA et al v. SINNO APPU et al.
207—D. C. Tdngalla, 1,192. '
Non-notarial agreement to dear land and stack the timber—Person clearing *to sow kurakkan and take all the crop—Is timber “ produce ”—
“ Share ”—Ordinance No. 21 of 1887,
By a non-notarial document the defendants agreed to clearwithin one year a block of land belonging to plaintiffs and to stackall the timber—to be sawn by the plaintiffs. In return the plaintiffsagreed to allow the defendants to sow kurakkan on the land andhave the produce of the same for one year.
Held, that this agreement was valid though not notariallyexecuted.
T
HE facts are set out in the following judgment of the DistrictJudge:—
The plaintiffs, claiming to be owners of a block of land at Ridiya-gama, sue defendants, their lessees, to recover Rs. 4,000, being thevalue of 5-18ths of a crop of kurakkan sown on about 200 acres of it.
It is admitted that 200 acres were cleared by the defendants andkurakkan sown on it.
The second plaintiff alleges that there were two agreements betweenthe parties, the first being the one produced by the defendants (videD 1). The terms according to this were that defendants should dearthe whole block of 300 acres within one year from the date of theagreement and stack all the timber to be sawn by second plaintiff. Inreturn he was to allow them to sow kurakkan and take the producethereof. He says he cancelled that agreement and entered into averbal agreement with defendants that he should get 6-18ths of thecrop. There is no proof of this except his bare statement. If therewas such a second agreement he should have got back the original one(D 1), or made an endorsement on it giving the terms of the second.
I believe the first defendant when he says that plaintiff made anattempt to get him to sign another agreement, which he refused. Ihave no hesitation in believing that D 1 was the agreement enteredinto between the parties.
Was that agreement valid in law 7 The plaintiffs’ counsel submittedthat this was a contract governed by Ordinance No. 7 of 1840, and should. have been notarially executed. If this contention is right, the plaintiffsare as much affected by it as defendants, for they are in no betterposition.
Now, the decision referred to by the plaintiffs’ counsel in 8 S. Q. C. 67,referring to “ anda ” cultivation, has been superseded by law, viz.,section 1 of Ordinance No. 21 of 1887. Contracts for paddy or chenacultivation for a time not over twelve months need not be notariallyexecuted, if the consideration be that the cultivator shall give the
Vol. XVI.*
[lO-f-J N. 85177 (1/34)
1912.
1912.
/«ffaauriac. 8innoAppu
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owner a share of the crop. So, even if we assume there was a secondagreement by whioh plaintiffs were to get 5-18ths of the crop, thiscontract is not invalid. But I have held there was no second agreement,the consideration for which was the 5-18ths of the crop to be given bythe cultivators to the owners.
Does the fact that the cultivators were to take the whole crop withoutgiving the owners any share require the agreement to be notariallyexecuted ? I think not. This is not an interest affecting land. Thecultivator has no permanent interest in the soil. He is in a differentposition from a planter, say, of coconuts, who has a planter’s shareaffecting the land. In other words, kurakkan must be regarded asfructua induetriale* as distinguished from fnidus ncUurales, and thereforeno notarial document is required (vide 8 S. 0. C. 21).'
. If I am wrong in this view, the defendants are still entitled to com-pensation for work and labour done. It appears that after the landwas cleared and sown with kurakkan the Crown stepped in and claimedthe land, and forbade the removal of all the kurakkan, one-fourth and
one-tenth of which was sold for Rs. 150
I dismiss plaintiffs’ action with costs, and allow defendants the sumof Rs. 1,950, t.e., Rs. 750 for damages and Rs. 1,200 for work andlabour done.
Document D 1 was as follows:—
Beliatta,
Kahawatta, June 6, 1911.
I hereby authorize S. T. Sinno Appu of Tangalla and NarasingheVidanagamage Don Andris of Mulana to clear my land of three hundredacres at Ridiyagama, situated within the following boundaries
The whole block of three hundred acres to be cleared within one yearfrom date, and all the timber to be safely stacked to be sawn by me.
In return I agree to allow the above-named two men to sow kurakkanin the land and have the produce of the same within the above period(i.e., one year).
Bernard F. de Sh-va.
The plaintiffs appealed.
Elliott, for plaintiffs, appellants.
Bawa, K.C., for defendants, respondents.
Cur. adv. vult.
October 9, 1912. Ennis J.—
This appeal raises an interesting question as to the constructionto be placed on Ordinance No. 21 of 1887, which enacted thatOrdinance No. 7 of 1840 (under! which a contract establishing aninterest in land was of no validity unless executed notarially) shouldnot be taken to apply to any contract or agreement for the cultiva-tion of paddy fields or cbena lands for any period not exceedingtwelve months, if the consideration for such contract or agreement•hall be that the cultivator shall give to the owner of such fieldsor lands, any share or shares of the crop or produce thereof.
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The plaintiffs in the case sued the defendants for a share in thecrop of certain lands for which the plaintiffs had entered into anagreement with the defendants for cultivation. The plaintiffsassessed their claim on a calculation of an average crop on 200 acrescultivated. It is agreed that an agreement between the partieswas entered into on June 6, 1911, whereby tbe plaintiffs authorizedthe defendants to clear 300 acres of land, stipulating that the-blockwas to be cleared within one year from date, and that all the timberwas to be safely stacked to be sawn by the plaintiffs. In returnthe plaintiffs agreed to allow the defendants to sow kurakkan in theland and have the produce of the same within that period, i.e.,one year.
The plaintiffs in formulating their claim stated that this documentwas superseded by a second document which they gave to the defend-ants stipulating for a customary share in the kurakkan crop.
The defendants admitted that 200 acres had been cleared; deniedthat the agreement D 1 had ever been superseded by a subsequentagreement; and counterclaimed Bs. 3,000 for work and labourdone and Bs. 1,500 damages for the loss of the crop (which wasconfiscated by the Government) and for the stoppage of the workof cultivation at the instance of the plaintiffs.
The District Court dismissed the plaintiffs’ action and allowedthe defendants Bs. 1,200 for work and labour done and Bs. 750for damages. On the facts of the case the District Court found thatonly one agreement had been entered into between the parties,viz., D 1, and that D 1 was a valid agreement within the meaningof Ordinance No. 21 of 1887.
It has been urged for the appellants that the document D. 1 wasinadmissible in evidence, as it was not notarially executed, theargument being that the document does not stipulate for a shareof the crop, and that the Ordinance No. 21 of 1887 legislated toremove agreements for “ anda ” cultivation only from the disabilitiesimposed by Ordinance No. 7 of 1840.
Clearly the agreement was an agreement for the cultivation ofchena land for a period not exceeding twelve months. The questionis, Was the consideration for the contract a share of the crop orproduce of the land to be given by the cultivator to the owner?
I am of.opinion that it was. The Ordinance does not specificallyrefer to “ anda ” cultivation, which is cultivation under an agree-ment the consideration for which is a share of the crop raised bythe cultivator.
The Ordinance goes further and speaks “ of the crop or produceof the fields or lands,” not only of the crop raised by the cultivator.Felled timber is a product of the land procured by the work andlabour of the cultivator, and in the present case in the course of hiscultivation, viz., in the process of clearing land for the sowing ofthe crop.
iwai
Jayaauria«. SitmoAppu
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JayasuriAv. SinnoAppu
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In my opinion this was a cultivating agreement and no* more.That the consideration for the agreement was a share in the produceof the land obtained in the course of cultivation, and that thelearned District Judge was right in admitting the document D 1in evidence, and I see no reason to differ from him in his findingthat there was no subsequent agreement, and his ascertainmentof the amount due to the defendants for work and labour dona andfor damages on the facts admitted and disclosed before him. Theappellants have asked the Court to reconsider by way of indulgencethe amounts decreed to the defendants on the ground that sincethe institution of the suit they find that only 85 acres were cultivated,and not 200 as stated in the plaint and admitted by the defendantsin their answer. We refused affidavits to be read as to the facts nowalleged, as we considered that the plaintiff was not entitled to anyindulgence, as the matter did not rest only on the plaint and answer,the plaintiff himself having gone into the box and sworn that 200acres had been cultivated.
I would affirm the decision of the District Court and dismissthe appeal.
Pereira J.—
I agree. The words of the agreement D 1 are susceptible of theconstruction that the defendants were to cultivate the chena andhave all the produce in return for labour to be expended by themin felling and stacking the timber. Even so, as the timber whenfelled would beproduce,'' and as the plaintiffs would have the
full benefit of the defendants' labour in felling and stacking it, I donot think that it is quite clear that the agreement is outside thepurview of section 1 of Ordinance No. 21 of 1887.
Appeal dismissed.