123-NLR-NLR-V-57-MOHAMADU-Appellant-and-MOHAMADUTAMBY-et-al-Respondents.pdf
1955JW-wh/ : Basnnyake, A.C.J., and Pullc, J.
MOlfAHADid. Appellant, and HOlfAMADUTHAMBY H ah,Respondents
,S'. C 300—D C. Ballicalou. SlGjL
Irrigation Ordinance Xo. 3d of 1010—Sections ST mi l SS—Xon-payinent of rate*—
“ Defaulter ”—Cancellation of certificate oj sale—Person in n htnn title re-vests—
Irrigation Ordinance. (Cap. old). SS. Cl, 06.
1'or (lie purpose of irrigation rates payable in respect of an Irrigation Schemethe person whose name is on the register of proprietors is (he one who is liableto pay the rates a net if he does not pay flic rates at- the duo time be isthe defaulter.
Where land which is liable to the payment of irrigation rates is sold to theCrown for non-payment of irrigation rates, the title to it re-vests in the dcnallcrwhose name was on the register at the time of the sale, if he subsequently obtains,under sect ion SS of 1 he Irrigation Ordinance Xo. .12 of 1 !I4G, a eancellaf ion of thecertificate of sale on payment- of the amount due.
Obiter : Section SS of the Irrigation Ordinance Xo. 12 of Itl-10 does not applyto sales under the repealed Ordinance (Cap. 312).
-jA^PPKAI. from a judgment of the- .District Court. Bailicaloa.
•7. N. David, with 1'). Ti. />. II. Conmarastvnnnj, for the Defendant -Appellant.
C. Ttc.nrjnnulhcn, with P.-Xagulcstcarnm, for the PlainlifF-Ttcspondents.
duty J4, 1955. Basxayake, A.C.J.—
It is common ground that one Aliarpody was the original owner of theland which is the subject-matter of this action. He died leaving twosons, Mccralebbe and SherifFthambj', who possessed the land. There-after in proceedings instituted in the Court of Bequests of Hattic-aloaone Ad a m bay a obtained a decree against Heeralebbe and SherifFthambyanti sold the land in execution and obtained a Fiscal’s transfer therefor.Though an application was made for a writ of possession, no further stepsappear to have been taken in that behalf. It is not disputed that theland in question is an allotment liable to the pai'mcnt of irrigation rates
under the Patlipal Arn Scheme and that in 1927 it was sold fur non-payment of irrigation rates under the provisions of the Irrigation Ordi-nance (Chapter 312) (now repealed by Ordinance No. 32 of 1946) andpurchased by the Crown and a eert’ficatc under section G6 of that Ordi-nance vesting the land in the Crown was executed by the GovernmentAgent on 21st February 1931.-•
The Crown continued to be the owner of the land till 7th March 19.71when the defendant’s mother Scinambu daughter of Mccralebbe above-mentioned on whom the notice of the original sale for default of irrigationrates had been served obtained a cancellation of the certificate of salehaving paid the amount due on 19th February 10.11. The. question iswhether upon the cancellation of the sale in favour of the Crown the landre-vested in Scinambu the defaulter whose name appears to have beenin the register kept under section GI of the repealed Irrigation Ordinance.In cancelling the certificate the Government Agent purports to haveacted under section 83 of the new Irrigation Ordinance No. 32 of 1946although that section does not apply to sales under the repealedOrdinance. It provides that upon the payment by the defaulter or byany person on behalf of the defaulter of the amount due from the. de-faulter in respect of any land purchased on behalf of the Crown undersection 87 the Government Agent shall cancel the sale by endorsementon a certified copy of the certificate and upon the registration of suchendorsement such land shall re-vest in the defaulter. The land in questionwas not purchased under section S7 of the present Ordinance. TheGovernment Agent had therefore no power under section 8S to cancel thecertificate. Even if section SS was applicable the Government Agenthad no power on 7th March 1971 to cancel the sale as the amendment ofsection 8S effected by section 17 of Act No. 1 of 1951 authorises the can-cellation of a certificate only if the defaulter pays the amount due withinfive years from the date of purchase of any land on behalf of the Crown,lint as the trial had proceeded on the assumption that the cancellationof the certificate of sale on 7th March 1951 was valid we have decided thisappeal on that basis.
It was contended that Scinambu did not come within the ambit of theexpression defaulter in section SS. Wo arc unable to uphold thatcontention. For the purpose of irrigation rates payable in respect of anIrrigation Scheme the person whose name is on the register of proprietorsis the one who is liable to pay the rates and if he does not pay the ratesat the due time he is the defaulter. In this case Scinambu s nameappears to have been on the register at the time of the sale and she beingthe defaulter the property has vested in her. The defendant who claimsby virtue of a transfer dated 8th December 1951 by Scinambu is nowclothed with whatever rights vested in the transferor by the cancellationof the certificate of sale..• ‘..
Wc therefore set aside the judgment oT the learned District Judge andallow the appeal with costs.
rur.r.R, -T.—I agree.
A jipcnl allowed.