KIRI MENIKA et al. v. APPUHAMY et al

076-NLR-NLR-V-19-KIRI-MENIKA-et-al.-v.-APPUHAMY-et-al.pdf


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1916.
Present: Wood Benton C.J. and De Sampayo J.KIRI MENIKA et al. v. APPUHAMY et al.330—-D. C. Oalle, 3,39.2.
Waste Lands Ordinanoe, No. 1 of 1897, as amended by Ordinances of 1899,1900, and1908—Claimby apersonclaiming,undivided share—
Whole land settled on him on. the basis of a compromise—Noclaim by the other co-owners—Effect of order giving the whole landto claimant—Purohase.
Therespondentclaimed, interalia, an undivided share of lots
88 and 88abefore theSpeoialOfficerappointedunder the Waste
LandsOrdinance,who had published anotice calling for claims
under section 1(1) of the Ordinance. The Special Officer did not
admitthe olaim,but enteredinto anagreement under section 4
(1) of the Ordinance, by' which it .was agreed that respondentshouldbe declaredowner of lot88, andshould purchase for Bs. 19
» (1908) 11 N. L. R. 288.
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lot 33a, andthathe should 'withdraw his claims totheother lots. 1913.
Ordersgivingeffect tothe agreement was publishedintheGazette. _ ——•
Appellants claiming tobeowners of undivided sharesof thetwo ‘^f**^*
lots, broughtthisaction for declaration of title. Neitherappellants
nor their predecessorsintitle claimed their shares before the
Special Officer.
■ Held, thattheorders published in1 the Gazettewereconclusive
of the respondents’ title to lots 33 and 33a as against the plaintiffs.
“ The Ordinance, when it provided for an agreement with the‘ claimant, meant that a complete settlement of the title mightthereby be arrivedat, whether there might or mightnotbe possible
claimson thepart ofotherpersonswho have notchosen to come
forward.”
The minority of personswho ought to have claimed,but didnot,
does not take away the conclusive effect of the order.
Theword“ purchase” insection4(1) shouldnotbelimited
to a purchase by theCrown from the claimant, butincludesalso
a purchase by the claimant, from the Crown.
fJlHE facts are set out in the judgment.
Bawa, K.C., for plaintiffs, appellants.
F. deZoysa(with him A.St. V. Jayawardene),forsecond
defendant, respondent.
November 15, 1916. De Sampato J.—
Cur. adv. vult.
There is a dispute in this case between the plaintiffs-appellants andthe second defendant-respondent with regard to the title to a landcalled Habehena, situated in the village Ambatenna, and consistingof lot No. 33 and lot No. 33A in the village plan No. 103. It maybe assumed for the purpose of this appeal that Ranhamy andPunchi Menika, under whom the plaintiffs claim title to 5/18 shareof the land, were entitled to that share. The question is as to theeffect thereon of certain proceedings taken under the Waste LandsOrdinance, No. 1 of 1897, as amended by the Ordinances of 1899,1900, and 1903. In 1911 Mr. Wedderburn, Special Officer appointedunder the provisions of the Ordinance, duly published a noticeunder section 1 (1) calling upon persons who claim any interest incertain elands in the village Ambatenna (of which the said landHabehena was one) to make claim to them, or any of them, or anyinterest therein within three months from July 7, 1911, and statingthat if no claim was made he would declare that the same were theproperty of the Crown. The second defendant thereupon claimed2/5 share of Habehena and some other lands mentioned in thenotice, but neither the plaintiffs nor their predecessors in titlemade any claim. The Special Officer inquired into the second
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19j[$. defendant's claim to Habehena. He did not admit it, but insteadDa Bahpayo k®> on March 25, 1912, entered into an agreement with the secondJ. defendant as authorized by section 4 (1) of the Ordinance. ThisKiri~Menika agreement was to the effect that the second defendant, in consider-v. Appuhamy ation of (1) the Special Officer settling another land, namely, lotNo. 10, as private property outside the Waste Lands Ordinances,(2) his being declared the owner of lot No. 33, and (3) his beingdeclared the purchaser of lot No. 33A, thereby agreed to pay tothe Assistant Government Agent the Bum of Us. 19, and therebyfurther withdrew all claims to the remainder of the lands appearingin the Waste Lands Ordinance notice above mentioned. Thesecond defendant paid down the sum of Bs. 19, and the agreementwas embodied in two orders published in the Government Gaette of ■July 24, 1914, by one of which the Special Officer admitted theclaim of the second defendant to lot No. 33, and by the other ofwhich the second defendant was declared to be the purchaser oflot No. 33A for the said sum of Bs. 19. The second defendantrelies on these orders as conclusive of his title to the entirety of boththe lots Nos. 33 and 33A as against the plaintiffs.
When a notice is issued under the Waste Lands Ordinance, theSettlement Officer has to do one of three things: (1) If no claimat all is made, he must make an' order declaring the land' tobe the property of the Crown (section 2, sub-section (1)); or (2)if a claim is made, he may either admit the claim or enter intoan agreement with the claimant “ for the admission or rejectionof the whole or any portion of such claim, or for the purchaseof the whole or any portion of the land " (section 4, sub-section (1) );or (3) if he does not admit the claim and fails to enter intoany agreement with the claimant, he must refer the claim toCourt for determination. The present case falls under the secondof these heads, and it will be seen that the agreement with thesecond defendant amounts to a compromise, such as is contem-plated by section 4 (1), by which both an admission and apurchase were agreed upon. When attacking the validity of theagreement, Mr. Bawa, for the appellants, suggested that the word" purchase " in the section meant a purchase by the Crown fromthe claimant, and not a purchase by the claimant from the Crown,but I do not see any reason why it should be so limited. Thedifficult question -is whether an agreement with a person who onlyclaims an undivided share operates to exclude other persons whohave not claimed, but who, on the basis of the claim of the actualclaimant, may also have undivided shares in the land. The primaryobject of the Ordinance is to settle once for all, as between theCrown.and private persons, the title to the lands of the descriptionmentioned in the Ordinance, and if the rights of shareholders whodo not come forward to claim are to remain intact, notwithstandingthe proceedings taken under the Ordinance, that object will not be
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•f
attained. Consequently it seems to me that, the Ordinance, when 1916.
it provided for an agreement with the claimant,meant that agAMPAYO
complete settlement of the title might therebybe arrivedat,J«
whether there might or might not be possible claims on thepart-Mcnika
of other persons who have not. chosen to come forward. In order v.Appufuxmy
thfct^any incidental injustice may be met, the Ordinance provides
for an extension of the time limited by the noticq for making claims
(section 2, sub-section (3) ), for causing particular notice to be given
to a person who has not claimed, but who, there is reason to think,
is interested in the land (section 1, sub-section (5) ), for actions to be
brought within one year after any declaration infavour ofthe
Crown (section 20), and, lastly, for compensation being awarded by
the Governor in favour of any person who has failed to make a
claim in time (section 26). In my opinion, the order embodying
the agreement with the claimant is, subject to such relief as the
above, “ final and conclusive,” as section 4 (2) itself declares, even
where the person with whom the agreement has been entered upon
has claimed only an undivided share. It was said that the order
in this case could not be binding upon the second, third, and fourth
plaintiffs, who are minors. But I do not think that the minority
of persons, who ought to have claimed,, -but did not, take away the
conclusive effect of the order. Moreover, they claim under Punchi
Menika, but he is stated to have died only two years before the
action, and was, therefore, alive when the proceedings under the
Waste Bands Ordinance commenced. I agree with the District
Judge that if the plaintiffs had a fair claim to shares in the land,
they might, and probably would, obtain some relief under the
provisions I have mentioned.
I think the questions involved in the case were rightly decidedby the District Judge, and I would dismiss the appeal with costs.
Wood Renton C.J.—
I agree, and have nothing to add.
Appeal dismissed.