001-NLR-NLR-V-24-MUDALIHAMY-v.-KIRIHAMY-et-al.pdf
THE
NEW LAW REPORTS OP CEYLONVOLUME XXIV.
£FtjLi, Bench.]
Present. Bertram C.J., Ennis, De Sampayo, Porter, and
Schneider JJ.
MUDAI.IHAMY v. KIRIHAMY et al.
180—D. C. Kandy, 7,709.
Ordinance No. 12 of -1840, s. 0—Forest, waste, and chcnas—Presumption.under section 6 refers to the state of the land at the date of theencroachment—Waste Lands Ordinance—Prescription.
The presumption in favour of the Crown under . section 6 ofOrdinance Nq. 12 of 1840 has reference to the: .condition – of the '•-land, at the .time when the encroachment wag made, .and iot. to thecondition of the land at the date of .the passing of the Ordinance,,or at the date of an action regarding, the .-title" to the .land- ,■
Bkbtbam C.J.—The words of the section- should be construedas though they read: " All kiHds:proved.at .any.matenal time tobe. forest| waste, Ac.-, shall be presUtiied.-6cr-.be the ■•property of theCrown at that time until the contrary , thereof be. proved; ” and,similarlyi " all lands proved at any- material- time • to be-cheua shall,if situated in the Kandyan Provinces, be deemed to – belong to theCrown at that time."
Under the Waste Lands Ordinance the material .time is the dateof the issue of the notice under section 1 (subject to the iotrospectivaeffect of' section 24 (e)). The presumption' there enacted in sectiou24 (a) is merely ifor .the purpose of the Ordinance, and the object ofany legal.- proceeding under the Ordinance is. to determine whether- the land in question at the date of the notice came within .any ofthe – categoriesto. which the presumption applies . . . . .
There is nothing to prevent a plea of. prescription being set. up.: tocheua lands io proceedings under the Waste Lands Ordinance.
1822.
( 2 )
1928.H. j.- C. tPereiraK.C. (with him «7. iST. Jayawardene), for
JfwifnrFi-iw aPP°^an^*—Th® presumption created by section 6 of the Crown •e. JWrifomy Encroachment Ordinance* No. 12 of 1840, in . favour of the Crown,applies to lands which were ehenas at the time of the passing of theOrdinance.
Hie. preamble states “Whereas divers persons ..*
have taken possession of lands in this Colony belonging to. HerMajesty,thus indicating that the Ordinance was intended
to meet, certain – circumstances at that time. Section 1 furthergives certain rights to persons who have been in uninterruptedpossession of Crown lands for over five years. There is no evidenceon record to show that this was chena land in .1840. The deed ofgift, of 1899, which is the earliest document with reference, to thisland,' describes it as xvatta (garden), and the title of the donors isrecited as maternal inheritance. The report of the surveyor showsthat there , was a plantation on the . land twenty years ago. In the
plan of 1919 it is again described as a garden, and the Crown hadlevied a "tax on the crops Cultivated in this land as from privateproperties. It was held in'Corea Mudaliyar v. Punchirala 1 thatthis Ordinance does not Apply to lands which became ehenas afterthe passing of the Ordinance. Paddy and Dry Grain Tax Ordinance,No. 14 of 1840, shdws that the Crown had a list of the ehenas atthat time. The ' special " presumption, created in favour of theCrown by section. 6 must be' strictly construed. .
If section 6 is not .to he construed as applying to the .time whenthe Ordinance was passed, & should then be proved that the land. was.. chena at the time of the action or shortly prior to it. The Attorney-General v. he Meaurier * and Arunachcdam Chetty v. Davies.3 Landpossessed and cultivated as private land for a considerable timedoes not come within, section ~6 (Kirihami v. Appukami4). Inthis case the land has been cultivated as a private garden for at.least twenty years.
Garvin, for respondent.—-In 1915 the appellant himself hadbought the land from the Crown, thus acknowledging the title ofthe Crown.
Akbar, S.-G. (with him Obeyesekere, C. C. j, as amicus curia.—CoreaMudaliyar v. Punchirala (supra) did not hold that this Ordinance(section 6) did not apply to lands which became ehenas after thepassing of the Ordinance as pointed out by Wood- Benton C.J. inThe Attorney-General v. PunchiralaA Lawrie A.C.J. held in Attorney-
General v. Wanduragala •: “ The better the proof'that the land ischena, the stronger is the presumption that, it belongs to the Crown.’*
» (JS99) 4 N. L. It. 135.* (1879) 2 8. C. C. 88.
(1899) 1 Matara Cases 85 at p.88.» (1915) 18 N. L. B. 152 at p. 165,
(1921) 3 <7. L. B. 138.8 (1901) 5 N. L. B. 98 at p. 105.
V 3 )
Register referred to in the Paddy and Dry Grain Tax Ordinance 188B.refers to registration of private chenas.Mttdaiihatn
Ordinance No. 12 of 1840 is tbe document of title in respect of v. Kirihamyall lands belonging to tbe Crown (see Mr. Cumberland’s note in18 N. b. B. 277). Sections 1-4 deal witb tbe summary method ofejectment, section 5 deals with cinnamon lands, section- 8 withlands admittedly Crown property, but improved by a private party,and- section 6 witb lands over which Crown cannot have effectivecontrol, If tbe Crown can prove that tbe land was at any time ofthe particular description, it eaa elaim tbe benefit of tbe presumptioncreated by section 6. This presumption could be rebutted only bythe production ofsannas otr grant, or by proof of customary taxes.
Kandyan chenas cannot be acquired by prescription (The Attorney.General v. Punchirala *).
H. J. C. Pereira, R.C., in reply.
Cur. adv. vult.
August 25, 1922. Bbbxeam C.J.—
This case was referred – to. a Court of five Judges for thedetermination of an important question- of law arising under section6 of Ordinance No. 12 of 1840. Briefly stated, that question iswhether the presumptions -enacted by the section must be consideredas having reference to the state of tbe land .in question at the timewhen some dispute arises between the Crown and a subject (orbetween a subject claiming through -the Crown and anothersubject claiming otherwise); or whether- they may be consideredwith reference to the state of the land at' any time which may' bematerial to the title.
The facts of the present case are as follows: The land in question,consists pf 5 acres 1 rood and 18 perches. It is situated in one of theKandyan Provinces. The plaintiff claims under a Crown grantdated April 12, 1919. The second defendant claims the easternhalf on the following chain of title/ On August 5, 1899, two brothers,
Menikrala and Ukkurala; apparently partners in an. associatedmarriage, purported to gift to their three children, Mudalihamy,Wijeyhamy, and Xirihamy (first defendant), land said to be identicalwith . this eastern half. The land was referred to as a garden{t0aHdyt and the title recited was maternal inheritance. On April 3,
19iCT (D 5), Xirihamy brought in the shares of his brothers, and issaid,, at about lie same time; to have purchased the western halffrom another' party, though the deed purporting to convey thisinterest was not produced, or, at any rate, was not discussed beforeus. In 1906 a Crown survey was made of’this and several .surround-ing lands, and, in the following year, a plan was completed as theresult of that survey. This plan was replaced by another in 1913,the lots in the original plan having been re-grouped, so as the better
» (1918) 21 N. L. B. 51.
( 4 )
1922.
Bsktramd.tf, •
M-udidihatftyv, Kirihatny
to represent the claims of the various claimants. In the year 1015the whole of this land which had been “ fixed for sale or settlementby the 6rown ” was sold to the first defendant, Xirihamy, for Rs. 91.|£® paid one-tenth as deposit, but failed to complete the purchase.The land was put up for sale again, and duly sold to the plaintiff,the Crown grant being dated April 12, 1919. In the interval,however, fitst defendant, Xirihamy,. on July. 7,, 1016, purported tomortgage to second defendant all the lands comprised in the originaldeed of gift of 1899 according to the boundaries therein set out. Themortgage deed was put in suit, and a sale by auction took placeunder the direction of the Court, in pursuance of which these landswere conveyed to the second defendant by deed dated February12, 1920. The second defendant- thus claims land said to be identicalwith the eastern half of the land in question. The first defendantclaims the western half under a title not clearly explained.
We have now to consider the condition of the land with referenceto the times which may be considered material to the question indispute. The report of the surveyor, Mr. O. P. M. Schokman, which,except in one particular, was accepted by both parties, showed that,at the date of his survey, November 15, 1920,. on the eastern half ofthe land, there were forty-nine coconut plants which were, only aboutfour yearn old, and had, consequently, been plaptedv'since the abortivesale to the first, defendant in 1915 and probably by '.the first defend-ant. For . the purpose of carrying the Btory one step further back,we have the evidence of the plaintiff, who. is the local Arachchi, andwho says that when the land was -Surveyed by the Crown. Surveyorin 1906 there was no plantation on the land at all. He says:
“ Before the plants -on that- land were .planted, this land was acbena like other chenas.” This approximately corresponds with the. evidence of Mr. Schokman. It. does not, however, account for thepresence of. the two old coconut trees on the land which, on Mr.Schokman*6 estimate, must, at that . time, have been plants ofabout four years’ growth. The plaintiff explains the jak tree as anaccidental growth.- This evidence is – very strongly supported by theplans of 1904 and 1913 with their accompanying tenement- sheets.As I have explained,-..the lots , on the plan of 1907 were re-groupedfor the purpose of . a later plan. Takipg the lots or portions of lotswhich were comprised inthe lot constituted for the purpose of thisland in the plan, of 1913, -and examining the descriptions of these lotsor portions of lota as given in the tenements sheet which accompaniesthe plan. We find.that, .with one exception; the whole of the land isdescribed as either jungle or- obenu. That one exception is thesouthern portion' of let 29 in the plan of 1907 comprising about an acrein extent at the most. This is described as ** cleared chena,”. andmay be identified as the portion of the eastern half on which theforty-rune coconut trees have Since been planted. It may be takenas clearly proved, therefore, that in or about 1906 the land now in
( « i
question consisted either of jungle or ohena. The–only evidence tothe contrary is the reference to the eastern half, in the-deed of 1899,as being watta, ” and the fact that there are two coconut trees oftwenty years’ growth in the eastern half, and an old jak tree in thesouth-eastern corner. This is clearly insufficient to displace theeffect of the definite evidence above set out. '
We have then these facts. At the date of the institution of theaction (November 1*1, 1919), the land was land more or less sparselyplanted with .coconut trees of from three to fourteen years' growthand with* two trees a few years older. In 1900 its condition was thatof chena or jungle with two young coconut plants and a jak treein the south-east comer. The plaintiff claims on the Crown grant,and the basis of the Crown’s title is the presumption created bysection 6. The question we have to determine is this : May thatpresumption be considered with relation to the state of the land ator about J9Q6, or must it be considered, as Mr. Jf. J. C. Pereiracontends, with reference to the state of the land at the institutionof the action ? If Mr. Pereira’s contention is correct, there is nobasis for the presumption referred to, and the plaintiff must provethe Crown’s title in some other way. If the alternative view is thecorrect one, then the presumption is amply established and has notbeen rebutted.
I will proceed to consider the question, of law. The effect of thesection may be pi-esontcd ns follows: —
All forest, waste, unoccupied, or uncultivated lands shall be
presumed to be the property of the Crown until the
contrary is proved.
All ehenas—
(«) In the Kandyan Provinces shall be deemed to belong tothe Crown, and not to be the property of any private personclaiming the same against the Crown, except upon proofby such person (1) of a saunas or (2) of payment ofcustomary taxes.
(b) In other districts shall be deemed to be forest orwaste lands.
Mr. Pereira's first contention is that the section only relates tolands which can be shown to have had the various characteristicsspecified at the date, of the Ordinance, namely, 1840. The objectof the section was to protect Crown property. No reason can beassigned for the limitation of that protection to lands bearing aparticular character at a particular date. Sueh a limited form ofprotection would gradually become more and more, inefficacious astime advanced, and, in the absence of a cadastral survey of that date,would be obviously destined to disappear within a very short interval.The contention is not supported by any authority. The passage in
1982.
Bertram
aj.
Mudnlihamyv. Kirihnmy
( 6 )
1988.
Bbbtram
C.J.
MtuJalihamyv, Kirihamy
Lawrie J.’s judgment in Corea Mudaliyar v. Punckirala,l on whichmuch reliance Was placed, has obviously been misunderstood by thecompiler of the headnote. This was pointed out by Wood BentonC.J. in The Attorney-General v. Punphirala 2 and by my brotherDe Sampayo and myself in Hamid et al. v. The Special Officer, * It isinconsistent with the well-known dictum.of Sir A. Lawrie himself inAttorney-General v. Wanduragala 4 : “ The better the proof thatthe land is chena, the stronger is the presumption that it belongs tothe Crown. ” It is also inconsistent with the judgment of thisCourt in Arunasalam Chetty v, Davies (supra). The word “ hithertoin the passage referred to clearly means not up to the date of thepassing of the Ordinance, but up to the date of action brought." Iam not affected by the fact that in the case of Hamid v. The SpecialOfficer, 5 the Privy Council did not think it 'necessary to give a deci-sion on this point.
■ In the alternative Mr. Pereira; puts forward the following con-tention, which presents the principal question to be decided. Hecontends that when the section declares that land which bears acertain character shall be presumed or be deemed to belong to theCrown, it is speaking with reference to some contemplated action, andthat the material time to be considered, in determining whether anyparticular land bears the character in question, is the date of theinstitution of the action and not any tim$ prior thereto. ■
It is undoubtedly the case that, as a rule, when an enactmentdeclares that a certain state of fact shall be presumed (or shall bedeemed) to exist, the meaning is that this shall be so presumed ordeemed by a Court in some legal proceeding before it, and that thematerial time to consider for the purpose of the application of thepresumption, if no time is otherwise indicated, is the date of theinstitution of the proceeding, that being the time with reference towhich the respective rights of the parties are to be determined. Theinterpretation contended for by Mr. Pereira thus seems the simplestand most natural interpretation.
t-
Such an interpretation, however, in the case of the present section,would render it largely inoperative. Forest, waste, or unoccupiedland in this country is not taken possession of in order that it maybe preserved as a hunting ground or as a deer park. It is takenpossession of in order that it may be cleared, cultivated, planted, orotherwise improved. These are the operations which brings to theattention of the agents of the Crown the fact that the land has beenappropriated. To say that the presumption does not apply, wherethese operations have already to ahy extent changed the face of theland appropriated, is to say that it can only apply when the tres^passer, is caught flagrante delicto and before he has done anything in
(1899) 4 N. L. B. 138.9 (1920) 21 N. L. R. 353.
(191 SI 18 N. L. R. 155,* (1901) 5 N. L. R. 105.
* (1921) 23 1ST. L. R. 150.
C 7 )
pursuance of his entry upon the land. But this does not happen. 1922.
In all countries it is the essence of the position of the squatterthat he should for some time have escaped notice.c.J.
Mr. Pereira felt this difficulty, and was prepared to concede thatthe Court need not confine its reference to the state of . affairs existing v. Kirihamyat the actual date of the action, but might extend its. consideration tosome short interval before action. Pressed and to state the natureof the interval he had in his mind, he suggested that such an intervalas a month might ordinarily be appropriate. This admission of thenecessity of a concession and the obvious impracticability of definingthe limits of the concession emphasize the difficulty of the suggestedinterpretation.
But this is not its only difficulty. The section must be read inits context, andcits context is the whole Ordinance. It is impossibleto contend, (though the attempt has- beefi made) that the presump-tions of section 6 were" intended to apply only to the summary pro-cedure of the first section. The Ordinance was a general enactmentdeeding with the whole question Of, encroachments of Crown property,and the section was intended not dozily to declare or define thegeneral law, but also to provide an instrument for enforcing certainparticular provisions of the Ordinance.
With regard to ' the state of the general law at the time, this ismost conveniently stated by Lawrie 3. in- what is generally knownas The Ivies Estate Case (Appurala v. Dawson.1) :—
“It is different where- the land, granted by the Crown, is not inthe present, possession, of any one, when it is forest, waste*unoccupied, or uncultivated. Independent of the Ordi-nance No. 12 of 1840, such lands are, in this Colony as in allcountries where there is a Crown or Government, presumedto belong to the Crown of State. When the OrdinanceNo. 12 of 1840 enacted that all forest, waste, unoccupied,or uncultivated land shall be presumed to be the propertyof the Crown, it did- nqk more than enact the law thenexisting. The effect of the enactment was rather to restrictpresumption than to create it.
“ The British Crown, soon after the British accession to theKandyan country, recognized the rights of its Kandyansubjects to own land, but it did not relinquish the rightrecognized by all the authorities on Kandyan law to forest*wilderness, unreclaimed, and untenanted by men, to minesof precious stones* metals, pearl banks, &c. To thesethe Crown has now, and always has had-, right. “
Lawrie J., however, expresses the opinion, that as regards chenasperiodically cultivated there is no presumption of Crown ownershipindependent of the Statute.
1 {1892) 3 S. C. B. 1.
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Middleton J. in Bgbappu v. Don Andris 1 states the law some*Bertram what differently. He says that forest lands were universally^ recognized as Crown, and that the Government of the day extendedMudaUhamy the principle to all those comprised in section 6. I do not knowv.Kirihamy ^he source of this opinion. Davy is cited in Mr. C. It. Cumberland'smemorandum referred to in the case as saying (p. 85) : “ All forestsand chenas were considered royal domains, and could not be cut orcultivated without express permission. ”
1 should prefer to take Luwrie J.’s account as the most reliablestatement of the law at the date of the enactment of the Ordinance.The history of the Ordinance itself and of its subsequent amendmentI need not recount, as it is fully stated in the well-known judgment ofWood Renton J. in Babappu v. Don Andris {supra). Viewed then inthe light of this state of the law and of the history of the Ordinance,it is plain that, if Mr.. Pereira is right, in so far as the section affectedto state the law, it fell far short of the law as it existed, and in so faras it affected to enlarge the scope of the law, it failed effectively todo so.
But it was not merely with reference to the existing state of thelaw that the section was enacted, but also, as it seems to me, for thepurpose of assisting the enforcement of two special provisions ofthe Ordinance, namely, sections .1 and 8.
Section 1 as originally enacted contemplated the ejectment ofsquatters on Crown land even after the lapse of thirty years. Eventhis limit was not intended to apply to land of the descriptionsmentioned in section 6 (though by an inexactitude of drafting,rectified in the following year, effect was not given to this intention).In its final form the section provided for the summary ejectmentof trespassers from lands of this description, however prolonged theoccupation. Section 6 would have been useless for the purposeof enforcing such it section, if its presumptions related only to thestate of affairs existing at the institution of proceedings.
So also as to section 8. This conceded to occupiers of Crownlands without title certain rights, when the occupation had lastedmore than ten years. But the proviso in the following sectionexcluded from the benefit of the concession all cases where the Crownlands occupied were of the categories enumerated in section 6. Toascertain whether the lands occupied were of any of these categoriesat the date of the occupation, it would be necessary to go back tenyears, and to prove that they were Crown lands at all, it would he• necessary to apply the presumption with reference to that date.How then could the presumption be applied, unless it was capableof an antecedent operation ?
The consequences of adopting the interpretation suggested arethus so fundamentally fatal to the object of the Ordinance that we
1 (1910) 13 X. L. R. 273.
( » )are forced to the inquiry whether there is not an alternative inter* 1922.pretation, which, even though less apparently simple and natural, n^.PTpJMshould preferably be adopted—ut res magis vale at qnam pereat.O.J.
There is such an alternative interpretation. It is that the words MuduliAamyshould be construed as though they read: 14 All lands proved at any v-material time to be forest, waste, &c., shall be presumed to be theproperty of the Crown at that time until the contrary thereof beproved, ” and, similarly, 44 all lands proved at any material time tobe chena shall, if situated in the Kandyan Provinces, be deemed tobelong to the Crown at that time. ” In view of the history and theobject of the Legislature, I do not think it can be said that thisinterpretation is a forced one, and am of opinion it should beadopted.
Any other interpretation would make it unsafe for any Crowngrantee of forest, waste, or chena land to improve the land granted,for by so doing he would be destroying the only available evidenceof the grantor's title.
Previous authorities cannot help us very much, as the questionhas never been specifically considered. The dictum of Lawrie J.that “ what has to be ascertained in the state of the law shortlybefoie the institution of the action ” indicates, I think, that he hasnot done what we have had to set ourselves to do, that is to say, thathe had not thought out the subject. What he was really concernedto say was that it was not necessary to show that the land had alwaysbeen waste and unoccupied.
The same observation may be made with regard to the dictum ofPhear O.J. in Kirihami v. Appuhamy 1 :“ The land ….
was not at the time when the question at issue between theparties first arose, or at any time not remote therefrom, such land asdesignated chena in clause 6 of Ordinance No. 6 of 1840. " Itis difficult to deduce any tenable principle from the words " at anytime not remote therefrom. " They are at any rate not consistentwith Mr. Pereira's contention. It is here also, perhaps, best to saythat the subject had not- been thought out.
There is, however, another group of authorities which is in favourof the view above suggested, namely, those on the subject of thesupposed presumption of the validity of Crown grants. They havedecided that no such presumption exists, but in move than one ofthem attention is drawn to the presumption enacted by section 6 ofthe Ordinance now under consideration, and it is intimated orimplied that the material time for the purpose of consideringwhether the latter presumption applies is the date of the Crowngrant. See per Clarence and Dias JJ. in.Dc Silva v. Mendarissa 2 andWemelasekera v. Silva. * See also per Wood Renton ' ‘n Silva v.
Bastion. 4
111879) 2 S. C. O. 88.* (1886) 8 S. C. C. 58.
3 (1**7) 3'JV. i,. It. 61.
* 11912) H N. L. It. 132.
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1988. I should like to add, however, that as at present advised I doubtwhether the above reasoning would apply to proceedings under the
J. Waste Lands Ordinance. There the material time is the date of the.Mtakrtihamy ^sue °f the notice under section 1 (subject to the retrospective effect«h Kiriharry of section 24 (c) ). The presumption there enacted in section 24 (a)is merely fpr. the purposes of the Ordinance, andthe object of /anylegal proceeding under the Ordinance is to. dec|ermine whether theland in question at the date of the. notice came withinA pny of thecategories to which the presumption applies.. . >
It may also be noted that the formula of 'the presumption in theWaste Lands Ordinance is not the same as. that in section 6 ofOrdinance No. 12 of 1840, and, consequently, if the reasoning of mybrother Do Sampayo (in which Loos J. concurred) in Attorney-Generalv. Punchirala 1 is to be taken as expressing the law—a point on whichI should like to reserve my own opinion—there is nothing to preventa plea of prescription being set up to chena lands in proceedings underthat Ordinance.
would dismiss the appeal, with costs.
Ennis J.—
The point of law reserved in this appeal for the consideration offive Judges is, I understand, from what date does the presumptionraised under section 6 of the Ordinance No. 12 of 1840 operate forthe purpose, of the Ordinance in the case of chena land in the KandyanProvince ? It is the same question, but under another Ordinance, asthat referred to by the Privy Council as not arising in the case ofHamid v* The ‘Special Officer appointed wider the Waste LandsOrdinance. *
The presumption arises on.proof of a fact, and it was contended forthe appellants that, before the benefit of the presumption undersection 6 of the Ordinance No. 12 of 1840 with respect to chena landcould be claimed, it must be affirmatively proved that the land waschena land at the date when the Crown claimed, or shortly before;and, in the alternative, it was contended that it must be shown tobe chena land at the date of the Ordinance.
The Ordinance No. 12 of 1840 was 'enacted " to prevent encroach-ments upon Crown lands. ” It proceeded in section 1 to provide asummary procedure for the ejectment of persons encroaching onCrown lands without probable claim or pretence of title, uponproof that the person had so encroached ; and proof that theyhad '* not cultivated! planted, or otherwise improved and helduninterrupted possession of such land for the period of five yearsand upwards. "
* (1921) 23 N. L. R. ISO.
1 (1918) 21 N. L. R. SI
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Section 6 of the Ordinance declares that;—1922.
■» ^
“All forest, waste, unoccupied, or uncultivated lands shall beJ.
presumed to be the property of the Crown until the ^uddlihamycontrary thereof be proved, and all chenas -..• v. Kirihamy
shall, if the same be situate. within the districts formerlycomprised in the ‘Kandyan Provinces …. bedeemed to belong to the Crown and not to be the propertyof any person claiming the same against the Crown, exceptupon proof only by such person of a saunas or grant for thesame …. or of such customary* taxes, dues,, orservices having been rendered within twenty years for thesame as have been rendered within such period for similarlands being the property of private proprietors in the samedistricts. ”
: The Ordinance No. 9 of 1841 enacted that “ the provision touch-ing prescription contained in the first clause of the. Ordinance No. 12of 1840 ” should not extend: to land referred to in the sixth clause ofthe Ordinance of 1840.
The result was that a pel's on encroaching on a chena land in theKandyan Province could be summarily ejected upon proof, only thathe had entered upon or taken possession of such land without^probable claim or pretence of title.
It would seem, therefore, that the" only proof required in suchsummary proceedings would be—
That the land was chena (i.e., Crown land) at the time of the
entry ; and
That there was an entry without probable claim or pretence-
of title.
Section. 2 of the Ordinance allowed any person ejected by thissummary procedure to recover possession "by ordinary procedure“ in case he shall be able to establish title.”
The Ordinance then clearly contemplated that this provision shouldoperate in the case of chena land from the time of the encroachmentno matter how far back the encroachment was.
Section 6 of the Ordinance does not, in my opinion, confer abenefit, as argued for the. appellant, it is declaratory of. the- rightsof the Crown, which are to be presumed upon proof of a certain fact,e.g.t that the land was chena, and, by an inference from section Iand the subject of the Ordinance, that it was so at the date of theencroachment.’
It must be remembered that “ chena ” is but a method of cultiva-tion, and it has been defined in the case already referred to, as,briefly, felling of forest, burning the timber, and planting again fora season followed by abandonment until the process can profitablybe done again. It was contended that to make a permanent planta-tion on the site immediately altered the character of the cultivation .
ai / ^
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1822. and that the. land than ceased to be chena land, that it was then
cultivated land to which the presumption in. favour of the Crown
Ewy13 J' declared in section 6 would not arise. But section 1 of the OrdinanceMvdalikamy read with the Ordinance of 1841 does not, in the case of chena land,v. Kirihamy reqUjre any proof that the land has not been “ planted, cultivated.
or otherwise improved ” withiu five years (which is the only pro-vision touching prescription found in that section). It would seem,therefore, that no cultivation could alter the character of chena landonce it fell within that designation.
This conclusion is in accord with history hi the Kandyan Province.Davy, writing in 1821, in his “ Account of the Interior of. the Islandand its Inhabitants, ” says (page 185): “ All forests and chenns wereconsidered royal domains, and could not be cut down or cultivated…..without express permission, ” Moreover,-it- would seem that in thedays of the Kandyan kings all land whether cultivated or not wasconsidered as belonging to the King -until grant was made by sennasor registration, for we frequently find in sannas produced in evidence•before the Courts that grants were made of whole villages and tractsof land, including cultivated as well as uncultivated land.
Section 6 of the Ordinance of 1840 bv omitting mention of “ oultb• vat-ed ’* land would seem .to have limited the rights of the Crownrather than to have conferred a benefit on the Crown ; and, inaccord with Kandyan custom, we find in section 6 that thepresumption in favour of the Crown in the case of chenns can berebutted only by the production of the grant or proof of paymentof customary taxes. The cultivation of chena was illegal withoutexpress permission.
It has already been held by a Court of three Judges in the case ofAttorney-General v. Punohirala 1 that prescription does not run inthe Kandyan Provinces in the case of chena land.
There is a finding of fact in the present case by the learned DistrictJudge that the land was chena land ; and, from a survey plan of1906 and the tenement sheet which has been produced on this appeal,it appears that the land was mostly jungle land in that year, and onlya portion was “ chena " and another portion ** cleared chena.
I would according!}', in answer to the question reserved, s:iy thatthe Ordinance operates from the date of the encroachment.
De Sampayo J.—
The Chief Justice and my brother Ennis have dealt so fully withthe point referred to the Pull Bench for decision that I need onlyrecord my opinion very briefly. Counsel on behalf of the appellantmaintained that the presumption in favour of the Crown undersection 6 of the Ordinance No, 32 of 184U was applicable only tolands which were of the character and description mentioned: (1) Atthe date of the enactment of the Ordinance ; and (2) alternatively at
1 {1921) 21 N. L. It. 57.
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the date of any action m Which the question of title might be raised. 1922*
T am unable to agree with either branch of this proposition. In my $ampavo.dpinidn the Ordinance is a general enactment laying down' once for *all what kind of- lands shall be considered the property of the Crown, Mudulihamyand incidentally providing a summary remedy against trespassersv' K*rihamVon Crown property. The preamble to the Ordinance shows that it hadtwo purposes in view, namely; (1) to deal with encroachments alreadymade by persons who .without any probable claim or pretenceof title have taken possession of lands ” belonging to the- Crown;and (2) to make pi*ovision “ for the prevention of such encroach-ments” in the future. With'regard to tjhis second class of encroach-ments, it appears to .me obvioUs; that the. character end descriptionof the land must be considered as at-the, time when the act whiclconstitutes, the encroachment is done. . Inasmuch , as section l,which provides a summary remedy; expressly exempts persons whehave cultivated, planted, – or otherwise improved and, held possessorof the land for the period of thirty years or,upwards, it follows tha1although the land may have completely changed, its character andhave become, a cultivated land, with a plantation of thirty years oiage or with ,other ancient improvements, at the time of the applicalion for the summary remedy, the presumptive title of the Crown itthe land . Still subsists, the question for determination being whalwas the character of the land when the encroachment was mad*thirty years before. This period of thirty years was considered Itbe too long., and was cut down to five years by Order, in Council oiAugust 11, 1841, but the principle involved remains the* same. Thereis no reason to think that a different test must be applied if, insteadof the summary proceeding, an ordinary civil action is brought. Otthe. contrary, I think the object of the Ordinance will be defeatecunless the Crown or a claimant from the Crown is allowed to prov<that the land was of the. character mentioned in section 6 of t-h«
Ordinance when the Crown's right was first invaded by the act othe trespasser. I accordingly think that the presumption in favouiof the CfoWn under section 6 of the Ordinance has r Terence to th<condition of the land, neither at the date of the Ordi* .ace nor at th<date, of any action regarding the title, but at th time when th<encroachment was made.
Poetkk J.—
This action was brought by the plaintiff to vindicate his title to apiece of land called Gonagahawelahena, aWut 5; acres in extent..
The plaintiff's claim is based on a Crowri grant P I, dated.April 12,1919. The point- of law raised is shortly .j«s followsBy clause 0 ofOrdinance No. 12 of 1840 all forest, waste, and chena lands arepresumed to be Crown lands, unless the person claiming the land canprove a title. The question here is whether the land in dispute is
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1822. chena land within the. meaning ol section 6 qf the Ordinance
No. 12 of 184Q, and should, therefore, bfe presumed to. belong to. the
ortsr .The learned' Judge in the Court below. ha$ decided the
Mudalihamy question in the affirmative, and entered a decree in favour of thev. Ktrihamy pj^tiff’ from this ‘judgment the- defendants appeal. . The oralevidence called for the plaintiff, who is the Arachchit is the plaintiffhimself, who says he has known the land for many years, and that“ when this land was surveyed by the Crowd surveyor there was noplantation on the land,” and that the land, was a chena like otherchena s.”
. There -is a jak tree in the eorner of , the. land-**-" there , arcjak trees everywhere in the village ” jak treeS. -groW in everyjungle. ”…
. The plaintiff calls Mr. Hampton, the Assistant Land SettlementOfficer, who states' ihat thiB lend was Bold by the Crowttv originallyto KirihaBoy :(defendant himself), biit that, hating paid one-ten±h of thepurchase price‘on account, he foiled to pay thebalance, and the landwas again put up for sale and purchased by the: plaintiff! From. this,' counsel for respondent argues that defendant Kirihamy isestopped from denying the Crown title. Mr. Hampton furtherstates that when he first inspected the land d^iere were coconut plantstbreeyears old. and two coconut, trees’ thirteen years old. This is'the whole of the oral evidence called on either side, but 'the reportof Mr. Schokman, licensed surveyor, is put in evidence, and admittedby . Mr. Pereira for thedefence. Qn this learned Judge finds,as a fact, that the land iii- dispute is a eheW within the meaning ofseotion 6 of OrdinanceNo.'vI2; of 1840. '.The point of law reserved-'for the .Court of five Judges is: From what date does the presumptionraised, under section -6 of Ordinance.-No. 12 of 1840 operate for thepurpose of the Ordteance in the case of. chena land ?. For the appellantit has been argued by Mr. Pereira that that the- words ** chena ” landcan only apply! to lands wljjdch were chena at . the date of. theOrdinance No. 12 of 1640.’ In the alternative Mr. Pereira contends. that the time at which the Ordinance would operate would be thedate of the' institution of the action or at some short interval beforeMotion. The point was raised in the case of Hamid v. The Special' Officer appointed under the Waste Lands Ordinance decided by thePrivy Council and reported in 23 N. L R. at page 150. Unfortu-nately the point was not decided. It; would appear, however, thatthe Privy Council considered that if at any time in its history land. had been proved to be chena land, it-was deemed to be Crown land,unless the. person claimingsbowed a title by grant or sannas.
Lord Buckmaster says :- “ Land that is chena land c&nnot be takenout of the category merely by evidence to show that by. anothermethod of cultivation, by-the application of other processes in otherhands, it might.be cultivated in another way.” There is a .finding offact by the learned Judge in the present case that the land is chena.
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This is supported by a. survey plan of 1906, the tenement sheet 1W8.shows that the land was jat that time all jungle dr chena land* except'j,
a very small portion marked cleared chena.• T~rr
In my opinion the Ordinance operates from the time* of the ea- vcoachmen^. ^Sseriptidn does not run in the Kandyan -ProyiheeSin the oase^^X&ena land (Attorney-General v. Punchirala (aapm)1).
I think the learned Judge has decided tins case rightly, end wouiddhuniss riHjis : appeal,, with costs.
A ‘
Schneider J>—
_< • •• /
I have had the opportunity of reading the judgments of my l*ordthe Chief Justice and of my brother Ennis in this appeal. I do notthink X can add anything to what they have stated. If 1 mayventure to say so, X. agree with their reasoning and conclusions. ButI would add that the Solicitor-General was present upon the invita-tion of the Chief Jqstice as amicus ourite, and argued the respondent’sappeal on the law at request of counsel for the respondent1.and withthe acquiescence of counsel for the appellant and of the AppealJudges. ’.. j .. V
It was.definitely understood that the result of this appeal was notto be regarded Se in 'ahy manner affecting the Crown.
' Appeal dismissed.