079-NLR-NLR-V-05-KIRI-BANDA-v.-BOOTH.pdf
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KIRI BANDA v. BOOTH.
D. C., Ratnapura, 948.
Sannasas—Whal are appurtenances of paddy lands—Meaning of wal pita—Forestlands inter regalia under the Kandyan Kings—Conveyable by specialgrant.
Lawbie, A.C.J.—The appurtenancesof afield are thehousesand
gardens of the landowner and his tenants, the threshing tloor. thewooded lands surrounding the field and acting as a protecting belt orhedge, also an extent of highlandfor chena cultivation,proportionate
to the extent of the fields. In my opinion, forests do not pass under aclause of appurtenances.
Among the Kandyans, forestswere;knownas mukalanaand notwal
pita (which is an expression for thickets and open lands').
Forests were inter regalia under the Kandyan Kings and could notbelong to subjects except by special grant.
T
HIS was a reference under sections 5 and 6 of the OrdinanceNo. I of 1897 to the District Court of Ratnapura by the
Government Agent of the Province of Sabnragamuwa.
The Government Agent informed the Court that, after noticegiven and published in respect of a land called Kaludiyawela-mukalana, containing in extent 108 acres, a claim was made toHim by one Kiri Banda, andthatupondue inquiryhe didnot
admit the. said claim or enter into any agreement with the saidKiri Banda in respect thereof. He therefore referred the saidclaim to the District Court.
The claimant appeared before the District Court and statedthat the said land was part and parcel of the nindagama calledYayinne; that that village was granted by the sannas dated theyear of Saka 1578 (a.c.1656) to Wickremesingha Terunnehe
Pannave Dissawa and his descendants, and that plaintiff, adescendant of the said Dissawa, was entitled to the said villageand to the allotment of land mentioned in the reference.
The sannas, as-translated for the Court below, ran as follows: —“ Command given.
“ Whereas the Satarawaram Deities bear witness to the valiant“ act performed by Yayinne Wickremesingha Terunnehe, who“ held the office of Dissawa of Pannave on the day our Garrison“ was in Colombo; and whereas he has satisfactorily rendered•“ personal services to the King (in the Royal Palace), this sannas
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August 6, 6,and 12.
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“ is granted by Royal command at Colombo on Sunday, the“ tenth day after the new moon of the month of Esale (July)“ Durmuklu year 1578 of the era of Saka, in order that the following“ may be undisturbedly possessed as paraveni property by the“ children and grandchildren and their descendants of this“ individual, so long as the sun and modn exist, viz.. 0 arnu-“ asms extent lying within the four boundaries of Yayinnegama.“ §ituated in Atakalan kornle of the Subaragamuwa Province, and“ bounded on the east by I-Tulunpjtatenne. south by Dalukgala.“ west by Miriyandola. and on the north by We-ganga. Also 30" amunams extent from Thord. and also 3 anmnftms extent from
Eluwane. together with the houses, gardens, trees, high lands,“ and jungle ranges appertaining thereto.
“ The purport of the said Royal command is the same as this" granted by Royal Order.”
The contention of the Government Agent was that the saunasdid not specify any forest, nor did it appear to have been theintention of the grantor to bestow any forest upon the Dissawa;that the boundaries recited are only those of the village '> ayinne.within which !) amnnams of mud lands, together with gardensand the usual undefined appurtenances of high land, weregranted.
Witnesses were called, both on behalf of the claimant- and theGovernment Agent, including Messrs. H. C. P. Bel! and B. Gune-sekera Mudaliyar, who were considered expert, witnesses, whogave it as their opinion, based upon a study of a large number ofsannasas, that sannasas were of two kinds, viz., those whiphgranted whole villages ajid those which granted only limitedareas of land; that the expressions used in these two classes ofsannasas were entirely different; that according to the plaingrammatical and literal interpretation of the sannas, the saunasconveyed only 0 amunams of mud land in the village Yayiune,witli henas, gardens, &c., appertaining thereto; that the peculiarexpressions used in this sannas assigned it to that class of saunas■ which dealt with small parts of a village; that if a whole villagewere granted, the saunas would have the words ‘‘within these” four boundaries, the high and low lands, houses, gardens, trees,
“ &c., included, the whole village,” &e., but in the present sannasthe phraseology used was different.
The District -Judge criticised the views of the expert witnesses,and held that the claimant's witnesses had proved that theinhabitants of the village had rendered service’ to the originalgrantor on the understanding that the sannas conferred on himthe whole of the village as a njndagama, and that the same
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understanding had continued for 350 years. He also found that theclaimant, his friends, and descendants had for generations cuttimber from the forest, and that a share of the forest produce hadbeen customarily given to the claimant. He therefore gave judg-ment for the plaintiff.
The Government Agent appealed.
Layard, A.-G. (with him Fernando, C. 0.), appeared for appellant.
Sampayo and Walter Pereira, for respondent.4
Cur adv. vult.
12fch August, 1902. Lawrie, A.C.J.—
It is admitted that the sannas is genuine, that the plaintiff isthe representative of the Crown grantee, and that the forestlies within the boundaries of the village Yayinne.
Did the suinms grant the whole village Yayinne, or only atract-of fields of 9 amunams extent with appurtenances?
The translation attached to the plaint was accepted- as correct.The grant runs: “In order that the following be undisturbedlypossessed as paraveni by the children and grandchildren and their
descendants of (Yayinne Wiekremesingha Terunnehe)that is
to say. 9 amunams extent lying within the four boundaries ofYayinnegama, situated at the Atakalan korale of the S'abara-gamuwa Province, and bounded on the east by the Hulanpita-tenne, south by Dalukgala, west by Miriyandola, north byWe-ganga.’’
It is admitted that these are the boundaries, not of the .9amunams, but of the whole village. Between the 9 amunams offield and Dalukgala, the southern boundary, lies a large tract offorest. In my opinion the enumeration of the boundaries ismerely descriptive of the village within which the 9 amunamsdies. If this were a sale of land by an English deed, it would notbe possible to contend that all the lands within the boundaries ofthe village were sold. I think it would be conceded that no morepassed than. 9 amunams lying in the village.
The translation given by the learned District Judge in thejudgment makes it even clearer that only the 9 amunams were con-veyed (p. 143): “ Out of Sabaragamuwa dissavani the boundaries,of Yayinne village, 'situated in Atakalan korale, (are) on the eastHulanpitatenne, and on the south Dalukgala, and on the westMiriyandola, and bn the north We-ganga, the 9 amunams extentthat fall within these boundaries are granted,” &c.
If there were more than 9 amunams of field land in Yayinne,I think the excess did not pass under the sannas. I cannot readit as a grant of the whole village.
Are the words conveying appurtenances capable of includingthis “ forest ” ?
The learned District Judge translates the clause, “ including" the houses, gardens, trees, high lands, forest lands, and meadows'* appertaining thereto.” The translation in the' plaint runs.” together with the houses, gardens, trees, and juugle ranges” appertaining thereto.” Mr. Bell translates it. “ houses, gardens.” plantations, high and low lands, and jungle appertaining thereto.”Mr. Bell afterwards corrected this, explaining that “ low ” landswere not mentioned. The important words are /rat pita.. TheDistrict Judge translates them ” forest lands and meadows.” TheInterpreter of the District Court of Kalutara makes these to mean“ jungle ranges.” Mr. Bell translates them as “ jungle.” Anotherwitness, Gunasskera Mudaliyar. says that wat is “ forest ” andpita is “ open land.” Clough’s Dictionary translates taal.“ jungle, wood, thicket, grass.” Among the Kandyans forest is. “ mukalana,” and I think that the most reliable evidence is thattool or wal pita does not mean a forest. Forests were interregalia, and could belong to subjects only by special grant. Tthink it was not consistent with Kandyan Law and custom torecognize forests as appurtenances of fields.
The appurtenances of a field were the houses and gardens of thelandowner and his tenants, the threshing floor, the wooded landssurrounding the field and acting as a protecting belt or hedge, alsoan extent of high land for chena cultivation, proportionate to theextent of the fields. In my opinion, forests did not pass under aclause of appurtenances.
If this clause in the sannas included forest, is there evidencethat this particular forest was granted? It is not mentioned byname. It is not- pretended that this or any forest was conveyedas the appurtenance of the Thord or of Eluwane fields. Why shouldit be held that this mukalana was an appurtenance of the Yavinnefields ? Merely. I understand, because the forest is in Yayinne, andthat seems to carry us back again to the question whether thewhole of Yayinne was granted. If it was not (as is my opinion) isit possible to bring this forest in as an appurtenance ? I think not.
I come to the conclusion that this forest is presumed to be theproperty of the Crown, add that the plaintiff has not shown -any-thing to the contrary.
I set aside the judgment of the Court below • and dismiss theplaintiff’s action.
Moxcreiff, J.—T agree.
1901.
August 5,
and 12.
Lawbie,
A.C.-J.
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The original of the following important letter of Mr. S. Sawers on sannasas ispreserved in the BadulJa Kachcheri.—Ed.
In the Board of Commissioners.
Kandy, 26th August, 1826.
To Captain Fletcher. Agent of Government, Aliputo.
Sir,—With reference to your letter of the 10th ultimo, I am sorry to observethat my reply has been too long delayed owing to the multiplicity of business Ihave had to attend to. But. whatever may have been your decision in the case, theparty against whom you have decided may have remedy by appeal, if such, benecessary.
In respect to the virtue of Boyal sannasas in establishing rights to property, itappears that even under the King’s Government they were not consideredabsolute against rights founded in justice and which the terms of the sannaswent to violate. Indeed, this was a natural consequence of the loose manner inwhich they were granted.
The granting of a sannas was an act of grace on the part of the King, and thefavour was obtained either by the performance of some distinguished service, or,and that most commonly, by gifts given in the 6rst instance to Chiefs in power,and ultimately to the King himself.
It was the common practice for the individual ■ in whose name the sannas wasgranted, not only to include all the lands of his family, but the lands to whichthe family pretended to have claims, and if the party possessing such lands wasignorant of the fact of the lands being included, or were not of sufficient influenceor luul not the menus of paying the necessary boolal sooroloos f bet a I leaf rolls) toprevent it. a law suit generally ensued afterwards, when the case was heard anddecided upon its own merits without reference to the sannas. In fact, the men-tion of an estate in a sannas was of no validity without possession, unless theestate had been forfeited to the Crown or had been Crown lands for some timeprior to the granting of the sannas. Ip such cases, the title which the sannasconferred could not be disputed. It was not upon the granting of a new estateonly that a Boyal sannas was given by the King. As it was considered an honourfor a family to be possessed of a Boyal sannas for their lands, and a specialhenour to the individual of the family in whose name it was granted (as itcarried his memory down to posterity as a person who had been distinguished byBoyal favour), it was a common practice for such fortunate individuals toobtain a sannas for the lands of their family which had been previously in theirpossession for many generations, and the object in including all other lands ofwhich they were not at the moment possessed was either to support some futureattempt that might be made to wrest the lands from their proper owners, orto set up a claim to them in the event of their becoming porapadoo.
I need hardly add that for all these reasons we do not now hold that a landbeing mentioned in a Boyal sannas is by any means conclusive as to the right ofthe person to the land in whose name the sannas was granted.
I am, Ac.
8. Sawebs,
-Judicial Commr.
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