141-NLR-NLR-V-48-KIRI-MUDIYANSEAppellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
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Kiri Mudiyanse v. The Attorney-General.
.1947Present: Howard C.J. and Windham J.
KIRI MUDIYANSE, Appellant, and THE ATTORNEY-GENERAL, Respondent.
S. C. 395—D. C. Kurunegala, 2,937.
Crown Lands Encroachment Ordinance—Public Tank—Declaration of title—
Facts to be proved—Chapter 321—Surveys Ordinance—Chapter 316.
The provisions of the Crown Lands Encroachment Ordinance (Chapter321) are not operative before 1840. In an action by the Crown, therefore,for declaration of title to certain paddy lands on the ground that theywere part of abandoned tanks—
Held, that the provisions of section 7 of Chapter 321 were not applicablein the absence of proof that the lands were tanks after 1840.
Held, further, that a statemanet by a headman when a plan was madewas not prima facie evidence of the facts deposed to by him within theprovisions of section 6 of the Surveys Ordinance (Chapter 316).
1 An example of such an authority w the Electricity Commissioners (1924) 1 K. B 171.
* Words us'd at the argument.
439*
HOWARD C J.—Kiri Mudiyanse v. The Attorney-General.
jAlPPEAL from a judgment of the District Judge, Kurunegala.
H. V. Perera, K.C. (with him Titus Goonetilleke), for the first defendant.,appellant.
Douglas Jansze, C.C., for the plaintiff, respondent.
Cur. adv. uult.
September 9, 1947. Howard C.J.—
In this case the appellant, the first defendant, appeals from a judgmentof the District Court, Kurunegala, declaring that certain lands described,as lots 6, 7 and 8 in the schedule to the plaint are the property of theCrown. The second defendant is not in actual possession of any of thelands, but has mortgaged her interests to the first defendant.. The casefor the Crown that the lots in dispute are Crown lands is. based on the.contention that though they are now paddy lands they are in. fact part of.abandoned tanks. The evidence in support of this contention, is contained,in a plan No. 2,903 of 1903 produced from the Surveyor-General’s Officeby the Government Surveyor of Anuradhapura. This plan (PI) shows6 lots I 1228, J 2994, J 1228, 12995, 12996 and K 1228. Lots 12994, 12995-and 12996 are described in the plan as abandoned tanks. The other lots-are described as paddy fields and there is also a note in. the Bemarks-column to say that the Headman states that they are encroachmentson Badahelagama tank. The Surveyor also gave evidence to the effect.that he made a tracing (X) of the lots in question, and that lots 6, 7 and 8depicted on X are the lots in dispute. Lot 6 is part of lot J 1228. Lot 7is part of lots 12994 and J 1228 and lot 8 is part of the old bund. Lot 6depicted in P 1 as a paddy field is now a threshing-floor. Lot 7 is apaddy field while lot 8 is still part of the old bund. The Surveyor visited',the land in 1943 and is unable to say how long ago the tanks in question;were abandoned. The Village Headman also gave evidence for the'Crown and states that the lots claimed by the-defendants were at one timepart of the tank. He also states that he has known these lands for the'last 20 to 25 years and the defendants have always possessed them..He has not seen any tank in the area, but he can say there has been stank there. The tank, he says, may have been' abandoned in the timeof "the Sinhalese Kings. The evidence called by the defendants establishedpossession by them and their predecessors in title for a period' exceeding30 years.
As the defendants are in possession the burden of proof of title lieson the Crown and the only question for decision is whether the DistrictJudge was right in holding that this burden has been discharged.Mr. Jansze relies first of all on the provisions of section 6 of the LandSurveys Ordinance (Cap. 316). This provision is worded as follows : —
“If any plan or survey offered in evidence in any suit shall purport-,to be signed by the Surveyor-General or officer acting on his behalf,,such plan or survey shall be received in evidence, and may be takento be prima facie proof of the facts- exhibited therein’.; and it shall:
440HOWARD C.J.—Kiri Mudiyanse v. The Attorney -General.
not be necessary to prove that it was in fact signed by the Surveyor-General or officer acting on his behalf, nor that it was made by hisauthority, nor that the same is accurate, until evidence to thecontrary shall have first been given.”
Hence the plan must be received as prima facie proof of the facts exhibitedtherein. Mr. Jansze contends that the remarks of the Surveyor as to thefields in question forming part of an abandoned tank and his record ofwhat the Headman told him must be taken as prima facie proof of thefacts stated. I agree that the plan does supply prima facie proof that the.fields were at one time part of a tank. But I am of opinion that too great.a strain is being put on the words of the section when it is contendedthat an entry as to what the Headman said when the survey was mademust be taken as prima facie evidence of the facts deposed to by theHeadman. Having proved that the fields formed part of an abandonedtank Mr. Janszs then proceeds to call in aid section 7 of the Crown LandsEncroachment Ordinance (Cap. 321). This section is worded asfollows : —
“ All forest, waste, unoccupied or uncultivated lands shall bepresumed to be the property of the Crown until the contrary thereofbe proved, and all chenas and other lands which can be only cultivatedafter intervals of several years shall, if the same be situate within thedistricts formerly comprised in the Kandyan Provinces (within nothombo registers have been heretofore established), be deemed tobelong to the Crown and not to be the property of any private personclaiming the same against the Crown; except upon proof only by suchperson—
of a sannas or grant for the same, together with satisfactory
evidence as to the limits and boundaries thereof ; or
of such customary taxes, dues or services having been rendered
to the Crown or other person for the same as have beenrendered for similar lands being the property of privateproprietors in the same districts ; or
of his or his predeessor in title having made and maintained a
permanent plantation in and upon the same for a period ofnot less than thirty years or of his having otherwise improvedthe same and maintained it in such improved state for suchperiod, and in either case of his having held uninterruptedpossession of the same during the whole of the said period.
In all other districts in this Island chena and other lands which canonly be cultivated after intervals of several years shall be deemed to beforest or waste lands within the meaning of this section.”
Mr. Jansze contends that the lands in dispute being part of abandonedtanks are unoccupied or uncultivated lands and therefore by reason ofthis provision pxesumed to be the property of the Crown until the contraryis proved. Mr. Jansze concedes that there is a difference betweenthe two parts of the section and that, whereas in respect of chena landssituated in the Kandyan Provinces, private persons can establish theirrights in the manner prescribed in paragraphs (a), (b) or (c) and not by
Weeraratne v. Poulier, Food Commissioner.
441
prescription, in regard to “ forest, waste, unoccupied or uncultivatedlands” private persons can establish their rights by prescription. Thatthis difference exists is manifest from a perusal of the judgments in theAttorney-General v. Punchirala The period of prescriptive possessionnecessary for the acquisition of rights against the Crown would appearto be 30 years. Mr. Perera contends that the Crown has not establishedthat the fields formed part of a public tank, that it is not establishedwhen the tank was abandoned and the defendants have established theirrights by reason of over 30 years’ occupation. With regard to thequestion as to whether it has been established that the tank was a“ public ” one Mr. Jansze relies on the case of Attorney-General v. Sardiel'.In this case it was held that the bed of an abandoned tank, the name ofwhich appears on the list of public tanks, must be presumed to be theproperty of the Crown. In my opinion this case is distinguishableas the name of the tank appeared in the register of tanks as a public tankwhereas in this case there is no evidence that the tank is a public one.There is no presumption on the evidence in this case arising from section114 of the Evidence Ordinance. The Crown in these circumstanceshas only proved that the land in dispute formed part of an abandonedtank. It has not established when the tank was abandoned or whetherit w'as a public tank. In regard to the date of abandonment Cap. 321was enacted in 1840 and according to the decision of the Privy Councilin Hamid v.The Special Officer appointed under the Waste Lands Ordinance .it is doubtful whether the operation of the Ordinance is to date from thedate of the Ordinance or from the time when the claim is made. Hsprovisions however are not operative before 1840. In these circumstancesas there is no proof that the lands were tanks after 1840, it has not beenestablished that section 7 of Cap. 321 is applicable. I am thereforeof opinion that Mr. Perera’s contention must succeed.
For the reasons I have given the appeal is allowed and the plaintiff'sclaim and objections must be dismissed with costs in this Court and theCourt below.
Windham J.—I agree.
Appeal alloiced.