MUNASINGHE et al. v. THE ASSISTANT GOVERNMENT AGENT, PUTTALAM

033-NLR-NLR-V-13-MUNASINGHE-et-al.-v.-THE-ASSISTANT-GOVERNMENT-AGENT,-PUTTALAM.pdf

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[In Review.]
Present: Mr. Justice Middleton, Mr. Justice Wood Benton,and Mr. Justice Grenier.
MUNASINGHE et al. v. THE ASSISTANT GOVERNMENTAGENT, PUTTALAM.
D. C., Puttalam, 12.
Reference under theWatte Lands Ordinance—Crown—How far hound
by estoppel—Evidence Ordinance, s. 115—Estoppel by conduct—
Prerogative.
In this matter,which wasa proceeding undertheWaste Lands
Ordinance, decreewas enteredof consent ofparties(on March 20,
1904) whereby, interalia, it was orderedthat a survey should be
made by a specified surveyor, and “ that the Grown be and is herebydeclared owner of all extents of land found by him to be mukalana,chena, or forest above fifteenyears of age;andinrespect of the
remainder thereof,whether abandoned fields, gardens,chena, or
forest under fifteen years, it is declared that the plaintiffs beadjudged the owners thereof on payment by them to the Crown ofa sum of Bs. 10 per acre.”
The Surveyor-General, after the surveyor’s death, forwarded toCourt what purportedto be a “ survey ofthe landinexecution of
the commission.” The defendant took noexceptiontothe return;
and the plaintiffwhen calledupon depositedinCourt ‘* value due
to the Crown forcertain lotsin accordancewiththeterms of the
decree.” ThedefendantthenmovedtheCourt foranadjudica-
tion and investigation “as to- wbat lots shown in the survey shouldbe declared to be the property of the Crown and what to be thoseof the plaintiffs, interms of the decree of March20,1904,” and
Contended that the surveyor’s return was faulty. The plaintiffurged that the Crown was estopped from challenging the return byhaving calledupon the plaintiffto paythe value of thelotsin terms
of the surveyor’s return.
Held, by Middleton J. and Wood Benton 3. (Grenier 3. dissen-liente), thatdefendantwasnot estoppedbyhisconduct from
challenging the return.
The maximthat theCrownis notboundby estoppel isinapplic-
able to proceedings under the Waste Lands Ordinance.
T
HE facts of this case are fully set out in the judgment of WoodBenton J.
Walter Pereira, K.G., S.-G. (with him Maartensz, C.C.), for theappellant.—The conduct of the defendant does not estop him fromcontending that no proper return was made by the surveyor. The
April S, 1910
-J.N.A 89163 (f. 9)
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April 8, 1910 fact that defendant called upon the plaintiff to pay the value of theM —r . specified lots is not by itself sufficient to estop him from questioningv. The Assist- the validity of the return. The defendant made no representationamtQwem- which could have led the plaintiff to believe that defendant wouldPuttalam ’ not question the validity of the return. The Crown cannot, more-over, be bound by * estoppels (see Halsbury’s Laws of England,vol. VI., 410). The Evidence Ordinance does not bind the Crown,as there is no express provision in it to that effect (PalaniappaChetty v. Ismail Seidik l).
H. A. Jaye war dene, for the first plaintiff, respondent.—Themaxim that the Crown is not bound by estoppel does not apply toCeylon, where the Crown has waived its rights not to be sued(Simon Appu v. Queen’s Advocate *). The plaintiffs have paid tothe Crown the value of the land, improved the land, and mortgagedthe land on the faith of the representations made by the Crown.The facts proved would estop the Crown from challenging the return.Apart from estoppel, there is a concluded agreement between theparties that the surveyor’s return should be accepted. The plain-tiffs paid the value of the lots assigned to them by the surveyor..The Crown was now bound by the agreement (Attorney-General forTrinidad and Tobago v. Bourne,s Municipal Corporation of Bombayv. Secretary of State,* Ramsden v. Dyson 5).
Chitty, for second to sixth respondents.
W. Pererd (with him Soertsz), for the third respondent.
Walter Pereira K.C., S.-G., in reply.
Cur. adv. vult.
April 8, 1910. Middleton J.—
A preliminary objection was taken by the first plaintiff herethat the appeal to the Privy Council had been withdrawn by thedefendant on the strength of a note appearing on the record, but areference to my notes, as 1 informed counsel at the argument,shows, in my opinion, that the application which was withdrawnwas one to substitute parties, which, was then relegated io theDistrict Court. The hearing in review therefore proceeded.
I have read the judgment under review carefully, and as it setsout all the facts, which are not disputed, I see no reason to recapi-tulate them. If I understand the case rightly, there does notappear to be any estoppel. What the defendant, giving him thatname in the sense used by the Chief Justice, did was to have theplaintiff called upon by the Court on November 22, 1906, to payinto Court the sum of money equivalent to the value of certainproperties, on the basis that the Commissioner had decided they
1 (1902) 5 N. L. R. 322.8 (1395) A. C. 83.
* (1884) 9 A. C. 511.4 (1901) I. L. R. 29 Bom. 580.
• (I860) L. R. 1 Eng. and Ir. 170.
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were such as the plaintiffs should pay for at the rate of Bs. 10 peracre, under the consent decree in D. G. 12 dated March 28, 1904.
The plaintiffs paid this money into Court on December 5, 1906,but it was not carried to revenue, and so was not in fact or legallypaid to the defendant as representing the Crown.
The plaintiffs were induced to do this under the belief, arisingfrom their own inferences, that title deeds would be granted tothem by the Crown. They were not told that title deeds would begranted to them, but it was intimated to the Court by the AssistantGovernment Agent on November 14, 1906, that the money wasrequired 11 to give effect to the settlement arrived at.” TheSecretary of the District Court, by his notice of November 22, 1906,called upon the plaintiffs to deposit the money in Court as value duefor certain lots of land in accordance with the terms of the decreein the case. The defendant for the time being evidently thoughtthat the matter had been settled, and that Beebee’s plan andtenement sheet were a proper return to his commission which hecould accept.
On the other hand, the Colonial Secretary, by his letter underdate March 13, 1907 (D 3), had told the first plaintiff that no grantswill ” be issued for the land decreed by the Court, the applicantsmay apply- to the Court for a final decree in their favour and. thefirst plaintiff, who acted apparently for the other plaintiffs, and is aproctor, must have been well aware of the nature of the decreeentered in D. C. 12 when the matter was referred to a surveyor,for we find him writing D 2, under date April 7, 1907, to the defend-ant, that “ the decree (in D. C. 12) is in no way an adjudication infavour of the claimants so as to fill the place of a title deed. Thedecree is only evidence of an agreement entered into by the Crownand the claimants for the future purchase and sale of certain lots tobe ascertained by a commission, and if any sale followed by theclaimants performing the terms of the agreement, the claimantsbelieved that Crown grants would issue to them in the usual course.”In D 1, under date July 8, 1907, the first plaintiff again demandsCrown grants for the 746 acres, on the ground that it was a purchasepure and simple, and that it was in contemplation of the parties thatthe Crown grants would issue as a matter of course. In D 4, datedJune 24, 1907, the Assistant Government Agent suggested to thefirst plaintiff that legal steps should be taken by the plaintiffs tohave the matter finally settled and a really definite decree enteredup. In D 5, of July 1, 1907, the first plaintiff wrote, on the basisthat the matter was finally settled, and regretted the delay of theissue of Crown grants, for which he had paid. In D 6, of July 6,1907, the Assistant Government Agent again referred the plaintiffto the Colonial Secretary’s letter D 3. I do not think that theextract P 7 from the Administration Bep.ort of 1906, if we look atthe note to item 3, is evidence to show that the Crown looked upon
April 8,1910
Middleton
J.
Munaringhev. The Assisi*onl Govern*ment Agent,PuUalaen
April 8,1910
Middleton
J.
Munasinghev. The Assist-ant Govern-ment Agent,Puttdlam
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or held out the sale as an accomplished fact, but rather thatclaimants should have the option of purchase. Nor is there evidenceto show that this report came to the plaintiff’s knowledge or wasacted on by him. I therefore do not think it could be said that theCrown intentionally caused or permitted the plaintiffs to believe,and act on the belief, that they would issue Crown grants for the746 acres, being fields, gardens, chena, or forest under fifteen yearsof age, or to believe, and act on the belief, that they recognized anabsolue sale without a further reference to the Court, which was,
I think, clearly contemplated by the consent decree in D. C. 12.
In my opinion the money was not paid to the defendant in thesense contemplated in the example to. section 115 of the EvidenceOrdinance; nor, in the face of the Colonial Secretary’s letter D 3, hadthe plaintiffs any real cause to believe that the land in question hadbeen absolutely sold to them, or to act upon such belief. On thecontrary, I think the first plaintiff’s letter D 2 shows that he knewwhat was his legal position under the decree in D. C. 12. If thefirst plaintiff has purported to act under the belief that his beingcalled upon to pay the purchase money into Court constitutedan absolute agreement by the Government to confer title on theplaintiffs without further proceedings under the consent decree ofreference in D. C. 12, he has done so at his own peril, and, as hisletter D 2 shows, with a full knowledge of the position of affairs.There are allegations on behalf of the respondents that the landshad been taken possession of and cultivated by them, on the faithof their being called upon to pay the purchase money into Court,and that the purchase money itself was borrowed on the strengthof this representation.
The evidence in the record does not disclose that the plaintiffsmade the clearing of about 15 acres alluded to by Mr. Fyers andMr. Allnutt in their evidence, nor is there any proof that they did;and as regards the mortgage deed P S put in evidence, only itsbare execution is admitted by the defendant, and there is no evidencethat it represents money borrowed for the purpose of paying thesum deposited in Court. Even, however, if it did, I do not thinkthere is an estoppel by conduct here which will bind the defendant.In Goura Chandra Gajapati Narayana Deo v. Secretary of State forIndia,1 to which my brother Wood Renton has called my attention,the Privy Council held that where” Government officials under amistake initiated by the Court of Wards, of which the Collector ofthe district was a member, that certain Maliah forests belongedto a Zamindari, acquiesced in their possession by the Zamindari,and encouraged such an expenditure of Zamindari funds upon theMaliahs as seemed good in the public interest, this did not estopthe defendant from denying the right and title of the plaintiff tothese Maliahs.
» 11904) I. L. R. 28 Mad. 130.
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In the present case the Government official seems to me to have April 8, 1910done considerably less. The Solioitor-General mainly based his Middletonappeal on the ground that the Crown is not bound by estoppel, but J-in the view I take it is not necessary to consider the question. In MunaeingheSimon Appu v. Queen’s Advocate1 it was held that since theconquest of the Dutch a very extensive practice oi suing the Crown ment Agent,had sprung up, and had been recognized by the Legislature, and P^Halamthat such suits were now incorporated into the law of the land.
Chapter XXXI. of the Civil Procedure Code of 1889 also recognizesthe right of action against the Crown, and it was said by LordBlackburn in that case that the subject may set up any defenceagainst the Crown. It is true that Chitty on the Prerogative(p. 35) lays down that “ where Colonial Charters afford no criterionor rule of construction, the common law of England with respect tothe Royal Prerogatives is the common law of the plantations,” andthat Lord Watson in the Maritime Bank of Canada (Liquidators of) v,Receiver-General of New Brunswick3 said:“ The prerogative of the
Queen, when it has not been expressly limited by local law or statute,is as extensive in Her Majesty’s Colonial Possessions as in GreatBritain. ” I am by no means sure, however, that the Crown hasnot, by waiving its prerogative right not to be sued, and by itsrecognition of the waiver by legislation, tacitly admitted . theright of the subject to avail himself of this defence against theCrown.
The judgment was further supported by the contention of counselfor the respondents that there was a concluded agreement betweenthe Crown and the plaintiffs that the surveyor’s return should beaccepted as decisive between the parties as a return to the com-mission under the decree in D. C. 12 of March 28, 1904, and thecase of the Attorney-General for Trinidad and Tabago v. Bourne 3was relied on. The Municipal Corporation of Bombay v. Secretaryof State * and Dadoba Janardhan v. Collector of Bombay 5 werealso cited. I think, however, the answer to this argument, whichwas not raised on the first appeal, is that the evidence does notprove that a contract was concluded on the basis alleged. Theevidence on the question is to be found in the documents I havealready alluded to, and I do not think that either in fact or as amatter of inference any such concluded agreement can be deducedfrom it.•.
The third ground taken in support of the judgment in review wasthe principle of equity laid down by Lord Kingsdown in Ramsden v.
Dyson* Again, I think the facts of the present case do not bring itwithin the ruling in that case. In the present case the agreementwas embodied in the decree in D. C. 12, and I do not think the
1 (1884) 9 A. C. 811.> (1392) A. C. 441.
* {1895) A. C. 83.
(1904) I. L. R. 29 Bom. 580.
(1901) I. L. R. 25 Bom. 714.
• (1866) L. R. (1) Eng. and Ir. 170.
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April 9,1910 evidence shows that the defendant for the time being ever repre-sented to the .plaintiffs that they should have Crown grants if theyJ. paid the purchase money into Court, or that their title should beMunatinghe recognized without further proceedings under the decree; nor do Iv. The Assist- think that the evidence shows that the defendant ever represented*n«nt Agetu, the plaintiffs that he deemed Beebee’s return to the commissionPuttalam as it stood decisive of their right.
I think, .therefore, that judgment under review should be setaside on the terms suggested by my brother Wood Benton.
Wood Benton J.—
This is a hearing in review, prior to an appeal to the PrivyCouncil, of a decision of the Supreme Court adjudging the plaintjffs-respondents the owners of certain lands which formed the subjectof proceedings commenced on a reference $0 the District Courtof Puttalam under the Waste Lands Ordinance, 1897 (No. 1 of1897). The main point that we have to determine is whether theCrown, represented for this purpose by the Assistant GovernmentAgent of Puttalam, is estopped by conduct from disputing theplaintiffs’ claim. The District Judge answered this question in thenegative. The Supreme Court, on appeal, has answered it in theaffirmative, and the matter, as 1 have already mentioned, nowcomes before us in review. A preliminary objection to the hearingin review was taken by Mr. Hector Jayewardene, counsel for thefirst plain tiff-respondent, on the ground that the motion for acertificate with a view to an appeal to the Privy Council had beenwithdrawn by the Solicitor-General when it became necessary thatthe case should be sent back to the District Court for the addition ofthe heirs of the third plaintiff, now deceased. My brother Middleton,who was one of the Judges before whom the application to send thecase back was made, has dealt with this point in his judgment, and .I do not propose to say anything further in regard to it, except thatthe interpretation put by him upon the entry appearing in theSupreme Court Minutes on the day in question appears to me to bea sound and reasonable one.
In the view that I take of the present case it is necessary toexamine carefully the pleadings and proceedings in the DistrictCourt. The claim was referred to the District Court by the thenAssistant Government Agent of Puttalam on June 12, 1903. OnSeptember 7 and 9 following the plaintiffs filed statements of claim,in which the second to the sixth claimed the land as forming partand parcel of an extent of 2,899 acres, described in the plan markedY, upon certain duly registered sittus and deeds, while the firstplaintiff, who associated himself with the title thus set up by theothers, claimed a portion of the land in suit on a conveyance by thesecond to the sixth plaintiff in his favour dated March 3, 1898.
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The Assistant Government Agent, who was defendant to theproceedings, filed answer on March 4, 1904, impeaching the sittusrened on by the plaintiffs as forgeries, denying their title to the landunder reference, and alleging that it consisted of old forest, and wasthe property of the Crown. Issues were framed on these pleadings,and the case was fixed for trial on March 28, 1904. On that day,on a joint motion by the plaintiffs and the defendant, deoree wasentered by consent on “ the terms and conditions of a compromiseand settlement,” made and agreed to between the parties in respeot
of the subject-matter of the action. The following paragraphs in.the decree are material, and I propose to set them out in full: —-
Aprils, 1910
WoodRenton J.
Munasinghev. The Assist-ant govern*ment Agent,Puttaum
“It is further decreed that upon payment by the plaintiffs to theCrown of a sum of Es. 1,000 the above-named plaintiffs be adjudgedowners of the lots to the south of the said blue line, namely, lotsNos. 8,628, 8,624, 8,632, 8,681, 8,680, 8,628, 8,629, 8,627, and8,626 shown in the said plan.
“ It is further adjudged and decreed that, in respect of the rest ofthe plaintiffs’ claim, as appearing in plan made by Mr. SurveyorMurray, marked letter Y, a survey thereof be made by GovernmentSurveyor, Mr. C. A. Ohlmus, and that the Crown be and is herebydeclared owner of all extents of land found by him to be mukalana,chena, or forest above fifteen years of age; and in respect of theremainder thereof, whether abandoned fields, gardens, chena, orforest under fifteen years, it is decreed that the above-namedplaintiffs be adjudged the owners thereof pn payment by them tothe Crown of a sum of Es. 10 an acre, in addition to the usual fees.”
It was further adjudged and decreed that each party should bearhis own costs. In the joint niiotion, in pursuance of which thatdecree was made, one of the terms of the settlement was stated tobe the withdrawal by the plaintiffs of their claim under the sittus.On April 10, 1905, the plaintiffs paid into Court the sum of Es. 1,000as the price of the lots referred to in the first of the two paragraphsabove set out from the deoree. No question as to those lots israised in the present proceedings, and I refer to the matter only forthe purpose of noting that that part of the deoree embodied, andwas regarded by the parties as embodying, an adjudication ofspecific lots to the plaintiffs. The ca9e was different, however, inregard to the lands referred to in the 2nd paragraph of the decree.No title to any specific lots passed to the plaintiffs by virtue of thedecree itself, and while it is clear, and the learned Solicitor-General,if I understood him aright, did not dispute the fact, that bothparties would be bound under the decree to accept, in the absence .of fraud, the findings of the surveyor appointed to make the survey,no such obligation arose unless and until the surveyor had made areturn in compliance with the terms of the deoree. The particularsurveyor named in the decree and another surveyor substituted for13-
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April 8,1910
WoodRenton J.
Munaeinghev. The Aeaisl-ant Govern-ment Agent,Puttalam
him by consent were unable to carry out the survey, and on December8, 1903, on another joint motion by the parties, Mi. J. W. Beebee,Government Surveyor, was appointed to do the work. The orderappointing him directs and authorizes him to exhibit to the Court asurvey showing the particulars required by the decree. On July 18,1904, the second to the sixth plaintiffs executed a conveyance offurther portions of the lands now in dispute in favour of the firstplaintiff. On August 8, 1906, the Surveyor-General forwarded tothe District Court of Chilaw the sheets filed of record, “ showingblock survey preliminary plan No. 340a of the village of Potukulamain the District of Puttalam, together with its tenement list,” andinformed the Court in an accompanying letter that this was thesurvey of the land by Mr. Beebee in execution of the commission ofDecember 8, 1905. It is clear, as His Lordship the Chief Justicehas pointed out, that, apart from any subsequent agreement by theCrown to accept Mr. Beebee’s return, if it can be described as such,,as a return of the character required by the decree, or any estoppelof the Crown by the conduct of its officers, a final decree in favour ofthe plaintiffs-respondents in review—to whom I will hereafter referas the plaintiffs-respondents—could not well have been entered upon the strength of it. Lots 15, 17, and 18 are merely “ said ” to beunder fifteen years. Lot 25 is ” said ” to be chena fifteen years old.Other lots, for example 20 and 21, are described as chena simply.Lots 9 and 13 appear as V fit for paddy,” and lot 14 as “ four paddyfields,” without any description of their age in either case. Thesurveyor was required by the Court to give his own finding on thequestion of age. He did not discharge that duty by saying thatcertain lots were “ said ” to be under fifteen years of age. Thedecree contained no provision for adjudication in regard to lotswhich w’ere neither under nor above the age of fifteen years; and areturn merely describing certain lots as “ chena,” or “ fit for paddy,”or consisting of “ paddy fields ’” was no return within the meaningof the decree at all.
We have to consider, however, what followed the Surveyor-General’s letter of August 8, 1906, in order to see whether it createsan estoppel, or an equity in the nature of an estoppel, as against theCrown. On November 14, 1906, the Government Agent wrote tothe District Judge requesting him to call on the plaintiffs “ todeposit in Court Rs. 8,956.57 as per particulars in annexed memo.,to enable me to give effect to the settlement arrived at.” The.“ memo.” here referred to includes the lots in regard to which Mr.Beebee’s return was defective, but contains, in the remarks column,none of the defective entries themselves. On November. 22, 1906,the Secretary of the District Court wrote to the plaintiffs requestingthem to deposit in Court Rs. 8,956;57, ” being value due to. theCrown for lots Nos. 7, 9, 10, 11, 12, 13, 14, 20, 21, 25, 15, 17, and 19in accordance with the terms of the decree in the above case.”
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On December 6, 1906, the first plaintiff-respondent paid the deposit April St 1910
claimed into Court. Three days previously, namely, on December 3, Wood
1906, by deed P 8, which was put in evidence, and of which the Renton j.
bare execution was admitted by the Crown, he had mortgaged his Munasintfke
interest in the land in question to certain Chetties for Rs. 10,000. v.TkeAstiet-
It was suggested by his counsel at the argument before us in review m6n$ Agent,
that that mortgage had been effected for the purpose of raising the Pmtalam
money required for deposit; but there is no evidence on which
this suggestion can be founded, and the Crown admitted nothing
more than the execution of the bond in question. In his return
of December 6, 1906, the first plaintiff-respondent informed the
Assistant Government Agent that he had paid the sum of Rs. 8,726
into the Puttalam Kachcheri, ‘r being balance payment in full for
the lots settled on the claimants in the said case,” and added, ” the
amount includes survey and other fees necessary for the issuing of
grants for the said lots/’ He concluded by requesting the Assistant
Government Agent to have Crown grants for the lots in question
prepared. On March 13, 1907, the Assistant Government Agent
replied acknowledging the receipt of this letter, and stated that
further fees were required in respect of the Crown grant for survey
fees, deed fees, and stamps and headman’s fees. On March 20,
the first plaintiff-respondent sent a cheque for the amount claimed,
and repeated his request for the grants. The Assistant Government
Agent acknowledged this letter on March 21 and enclosed a formal
receipt for “ the amount of the deposit on account of the Potukulama
claim.” On April 7, 1907, the first plaintiff-respondent again wrote
to the Assistant Government Agent, stating that he had received a
“communication from Government” that no grants were necessary,
inasmuch as there was a decree in favour of the claimants. The
communication here referred to is a letter from the Colonial Secretary
dated March 13, 1907, in reply to a letter from the first plaintiff-
respondent dated August 11, 1906, requesting that Crown grants
might be issued. The Colonial Secretary stated in effect in his
letter that Crown grants had been issued for the lands actually
sold, that no grants would be issued for those decreed by the Court,
and that the claimants might apply to Court for a final decree in
their favour. The claimants were not disposed, however, to adopt
this suggestion, and in his letter above referred to of April 7, 1907,
the first plaintiff-respondent made use of the following language: —
“ The decree is in no way an adjudication in favour of the claimantso as to fill the place of a title deed. The decree is only evidence ofan agreement entered into between the Crown and the claimantsfor the future purchase and sale of certain lots to be ascertainedby a Commissioner, and if any sale followed by the claimantsperforming the terms of the agreement, the claimants believed thatCrown grants would issue to them in the usual course. It was inconsequence of this that the claimants withdrew and abandoned all
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April 8,1916 title on the sittus, the basis of their claim, to enable them to claimWood their title from the Crown.”
Renton J. On June 27, 1907, the Assistant Government Agent wrote toJllunaainghe the first plaintiff-respondent suggesting that the claimants shouldv.TImAssist- tajjg legal action to get the matter finally settled and a reallymen* Agent, definite decree entered up and published. On July 1, 1907, thePuttalam grst piaintiff-respondent replied that the matter had been finallysettled long ago, and asked him to expedite the issue of the Crowngrants. In reply to this letter he was, on July 6, referred to theColonial Secretary’s letter of March 18. On July 8, 1907, thefirst plaintiff replied to the Assistant Government Agent’s letter ofthe 6th saying that it was in the contemplation of the parties thatCrown grants would issue as . a matter of course if the requiredpayments’ were made. On February 12,1908, the Assistant
Government Agent moved the Court that a day be appointed “ forinvestigating and adjudicating what lots shown in the survey planexecuted under Mr. Beebee’s commission should be declared to bethe property of the Crown, and what to be those of the plaintiffs interms of the decree of March 28, 1904.” On this motion the casecame on for hearing before the District Judge of Puttalam on April29, 1908. The plaintiffs-respondents’ counsel contended that thedecree of March 28, 1904, was not an interlocutory one, but a finalone on the plan of the survey and return of the commission by Mr.Beebee, and also that the Crown wa6 estopped from challenging thereturn by having called upon the first plaintiff to pay Rs. 10 peracre for the lots with which it dealt. The learned District Judgeheld, quite rightly, that Mr. Beebee had made no proper return tothe commission, issued to him in the case. The plaintiffs’ counselthen asked leave to call evidence for the purpose of showing thatthe Assistant Government Agent had accepted the amount depositedon December 6, 1906, that it had been credited to revenue, andthat the Crown was therefore estopped from disputing the surveyand description of the land furnished by Mr. Beebee. Leave to callevidence in regard to these points was given, and Mr. Allnutt, theAssistant Government Agent of Puttalam, was called on behalf ofthe plaintiffs. Besides producing the correspondence, the effect ofwhich I have summarized above, Mr. Allnutt stated that the sumof Rs. 8,726, on the payment of which the plaintiffs relied, had notbeen credited to the revenue, and was still in deposit to the creditof the suit. He further stated that in no letter to the first plaintiffhad he impeached the survey of Mr. Beebee as fraudulent; that itwas only on September 3, 1907, that he had made the discoverythat the first .plaintiff was not entitled to the lots for which he haddeposited money, and that Crown grants were not issued to himbecause the matter was one for the Court. The learned DistrictJudge held that the amount of the deposit had not been accepted bythe Crown and credited to revenue, and that the circumstances
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of the case did no.t establish any estoppel by conduct. Hie Proctor April 8,1910for the Crown thereupon asked for the issue of a fresh commission, woodon the grouDd that Mr. Beebee’s plan and tenement sheet-were not a Renton J.proper return, and that the descriptions therein given of the lots Munaainghewere false. The Distrust Judge intimated his intention to admit TheAaairt-evidence to justify .the issue of a fresh commission. The plaintiffs “tent Agent,proctor thereupon withdrew from the proceedings. Mr. H. F. C. PuttalomFyers, Deputy Conservator of Forests, and Mr. John F. Dias,Government Surveyor, Chilaw, were then examined on behalf of theCrown. Their evidence, whioh was accepted by the Court, showed,if accurate, that Mr. Beebee’s descriptions o’f the property inquestion were misleading and false in material particulars. Ishould observe, in passing that Mr. Beebee himself is dead, andthat his evidence has not been available to either side at any stageof these proceedings. There is on the face of the record no materialon which a charge of fraud could have been made against Mr. Beebee,and I confess that I entertain some doubt as .to whether the papersforwarded by the Surveyor-General to the Assistant GovernmentAgent were ever intended by him to be regarded as a return to hiscommission. The learned District Judge held that no settlementbetween the parties in terms of the decree of March 28, 1904, could bebased on his plan and tenement sheet, and issued a fresh commissionto Mr. G. Wijesekera, Government Surveyor. I do not think thatthe District Judge had any power to make such an order except byconsent. If a settlement between the parties cannot be arrived atunder the decree of March 28, 1904, the proper course, in my opinion,to adopt is to remit .the case for trial on the original pleadings.
But, although I greatly regret to find myself in conflict withthe views of His Lordship the Chief Justice and my brotherGrenier in this case, I am unable to hold that any estoppel hasbeen established. I will deal with the arguments of the plaintiff s-respondents’ counsel as they were presented to us at the hearing inreview. Mr. Hector Jayewardene, who appeared for the firstplaintiff-respondent, and whose arguments were adopted by counselfor .the other respondents, put his case on three grounds. Hecontended (i) that, apart from any question of estoppel, there was aconcluded agreement between the Crown and the respondents that’
Mr. Beebee’s return’ should be accepted, whatever might be itsshortcomings, as decisive of the rights of the parties under the decreeof March 28, 1904; (ii) that the circumstances created, as betweenthe Crown and .the respondents, an equity in .the nature, of anestoppel precluding .the former from challenging .the accuracy andsufficiency of Mr. Beebee’s return; and (iii) that the Crown, byhaving intentionally caused or permitted the respondents to believe,and to act upon the belief, that they had adopted this attitudetowards Mr. Beebee’s return, was estopped from impeaching it bysection 115 of the Evidence Ordinance (No. 14 of 1895).
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April 8,1910(i) I gather from the terms of the judgment of His Lordship the
Chief Justice that the first of these three points was not taken atRenton J. the argument in appeal. In my opinion it is clearly bad. Mr.Mtmasinghe Jayewardene said that he was prepared to put his argument so highv. The Assist- as to contend that the Crown, knowing the defects of Mr. Eeebee’smetuAgent re^urn» or indifferent whether it was defective or not, deliberatelyPuttaiam accepted it as a conclusive settlement of the litigation. The recorddiscloses, it is true, gross larhes on the part of the officers of theCrown, into whose hands what purported to be Mr. Beebee’s14 return ” had come. But there is no trace of any agreement of thekind for which Mr. Jayewardene contends. It is inconceivable, inview of the value of the land and of the allegations in the answerfiled on behalf of the . Crown, that any such agreement could havebeen contemplated. The terms of the decree of March 28. 1904,itself, and of the commission to Mr. Beebee, clearly show that itwas only by a return complying strictly with the requirements ofthe decree that the Crown undertook to be bound. Moreover,Mr. Allnutt, who was examined as a witness on behalf of therespondents themselves, speaking for himself, states that it was nottill September 3, 1907, that he was aware that the first plaintiff-respondent was not entitled to the lots for which he had depositedmoney, and—a point with which I shall have to deal moreparticularly in considering the second branch of Mr. .Tayewardene sargument—the whole correspondence adduced in the case seems tome to corroborate Mr. Allnut’s further statement that Crowngrants were not issued to the first plaintiff because the Governmentregarded the case as ” a Court matter. ”
(ii) In support of his second point, Mr. Jayewardene relied onthe principle enunciated by the House of Lords in Ramsden v.Dyson* and applied by the Privy Council in Plimmer v. Wellington{Mayor of),2 and by .the High Court of Bombay in Dadoba Janardhanv. Collector of Bombay,3 and Municipal Corporation of Bombay v.Secretary of State/ that “ if a man under a verbal agreement witha landlord for a certain interest in land, or, what amounts to thesame thing, under an expectation created or encouraged by thelandlord that he shall have a certain interest, takes possession ofsuch land with the consent of the landlord, and upon the faith ofsuch promise or expectation, with the knowledge of the landlordand without objection by him, lays out money upon the land, aCourt of Equity will compel the landlord to give effect to suchpromise or expectation/’ It is pointed out by Sir LawrenceJenkins C.J., in the second of the two Indian cases above cited,that the doctrine so laid down in Ramsden v. Dyson, althoughoften treated as one of estoppel, is a rule of equity, taking its originfrom the jurisdiction assumed by the Court of Chancery to intervene
1 (1866) L. R. 1 Eng. and lr. 129.3 (1901) I. L. R. 26 Bom. 714.
* (1884) 9 A. C. 699.* (1904) I. L. R. 29 Bom. 580.
( Ml )
in .the case of, or .to prevent, fraud, and that it is distinct from the April 8,191P
rule of evidence embodied in section 116 of the Indian Evidence Vood
Act, which corresponds .to section 115 of our own Ordinance. Even Renton J.
if this doctrine applied to the facts of .the present case, I do not Munaitinght
think that the respondents would be entitled, as of course, to a The Assist-
decree adjudging them the owners of the land in suit. It is pointed
out in the case of Ramsden- v. Dyson 1 itself that the proper relief to Puttalam
be granted, under the circumstances indicated in the passage above
quoted, might consist, not of a speoifio interest in the land, but of
pecuniary compensation for expenditure incurred. In the present
case the respondents are said to have altered their position to their
own prejudice in consequence of the conduct of the officers of the
Crown first, by entry upon and cultivation of portions of the land
in dispute; and secondly, as regards the first plaintiff-respondent,
by the payment of the deposit of Bs. 8,726 and by the mortgage of
December 8, 1906. There is no proof of any cultivation by or on
behalf of the respondents. Mr. Allnutt, giving evidence on April
29, 1908, says: “ On or about .the 23rd ultimo I saw that an extent
of about 12 or 15 acres of lot 15 had been cleared and planted.
Mr. Fyers and Mr. Dias gave similar‘evidence. There is nothing toshow at what time .the clearing and plantation had been effected, or,indeed, that it was done by or at the instance of the respondents.
The respondents did not adduce any affirmative evidence on thesepoints, as it was their duty to do if an estoppel was relied on. Obser-vations of a similar character apply to the mortgage of December 3,
1906. As I have already pointed out, only the bare execution ofthe deed was admitted by the Crown. It was suggested by Mr.Jayewardene that the mortgage had been effected in order to raisethe money required for the deposit of Bs. 8,726. There is noevidence to support that suggestion. The first plaintiff-respondentwas not called as a witness in support of it. As regards the deposit,the learned District Judge has found, on the evidence of Mr. Allnutt-and the Supreme Court in appeal accepts the finding, that themoney was never credited to the revenue, but has remained all alongin Court, and is still at the disposal of the first plain tiff-respondent.
I should not be prepared to hold, even if I thought that the conductof the officers of the Crown gave rise to an equity in favour of theplaintiffs-respondents of .the kind indicated in Ramsden v. Dyson,1that they would be entitled, on the strength of that, finding andWithout any further inquiry or evidence, to be declared the ownersof the valuable lands here in question. So far as the deposit isconcerned, it would be a serious question whether the first plaintiff-respondent would not be sufficiently compensated by a decreeawarding him interest on the amount of it.
I .think, however, that the circumstances of .the case disclose noestoppel as against the Crown. The successive officers of the Crown,
1 (1866) L. R. I. Eng. and Ir. 129.
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April 8,1910 who had to deal with the matter, no doubt acted, up to a certainW0oi> point, on the assumption that Mr. Beebee had made a return suchBenton J. as would entitle the plaintiffe-respondents to a final decree in theirMunasinghe favour. The demand for the payment of the deposit proceeded onv. The Assist- that assumption. But I do not. find in the correspondence anyment Agent, representation, express or implied, on their part, that the claim ofPuUalam the respondents would be allowed otherwise than by a decree of theDistrict Court based on a return complying with the requirementsof the interlocutory decree o± March 28, 1904. In the receipt ofMarch 21, 1907, forwarded by the Assistant Government Agent tothe first plaintiff-respondent, when the latter had paid the furtherfees required in respect of the Crown grant and the survey, theamount is expressly described as ” the deposit on account of thePotukulama claim. ” I do not for one moment believe that thefirst plaintiff-respondent imagined that* on payment of the deposit,nothing more remained to be done in order to effectuate his claimthan to obtain Crown grants. Both as a party to the proceedingsand as a proctor he must, I think, have known perfectly well thatthe whole matter was in the hands of the Court, and that it wasonly after the Court had satisfied itself that a return had been madein conformity with the terms of the decree of March 28 that histitle to the property could be perfected. His letter of April 7,which I have already quoted at length,^shows clearly the view thathe took of the effect of that decree. Although His Lordship theChief Justice refers in his judgment to the fact that some deedswere put in to show that the plaintiffs had, after the payment inCourt, dealt as owners with some of the lands in respect of which.they made the payments, he does not’ say .that he considers thatfact to have been proved, and bases his ultimate finding againstthe Crown, on the question of estoppel, on the deposit alone. Ihave already endeavoured to show that the deeds referred to havenot been proved, and .that .there is no evidence of any act on thepart of the respondents which could form .the basis of an estoppel,except the deposit. However well ^ pleased .the first plaintiff-respondent may have been at the course that events seemed to betaking, I do not think that, in making the deposit, He could havebelieved that he was paying the purchase money of the lots inquestion, and that he was free thereafter to deal with the propertyas he thought fit, entirely irrespective of the question as to whetheror not Mr. Beebee had made a proper return. Even if he believed,and it had been .the fact, that only Crown grants were necessary tocomplete his title, there was nothing in the conduct of the officersof the Crown to encourage or justify an expectation on his partthat such grants would be made without any consideration of thequestion whether Mr. Beebee’s return was in conformity with theterms of the decree of March 28, 1904. There is no kind of analogybetween the present case and those to which Mr. Jayewardene
( 143 )
ant Govern-ment Agent,
Puttaiam
referred us, in inviting us to apply the rule laid down by the House April 8,1910of Lords in Ramsden v. Dyson.1 In Plimmer v. Wellington {Mayor woodof y the equity was raised against the Crown because it had, not Kenton J.merely stood by, but requested the tenant to make the improve- juUnasinghements, on the strength of which the equitable relief was claimed, v. The Assist-
In Attorney-General for Trinidad and Tabago v. Bourne3 there wasdirect proof of a concluded contract with the Crown, which thePrivy Council held entitled the plaintiff-respondent to a grant inrespect of the land in suit. In Dadoba Janardhan v. Collector ofBombay* the Government, on the sale of the land in suit to apurchaser, expressly stated that it would be assessed at a certainrate, indicating in no way that there would be a right to enhance therate in the future. The High Court of Bombay held that the conductof Government was, under the circumstances, such as to create and
encourage in the purchaser as a reasonable man the belief that no rightto enhance the assessment was being reserved. In the MunicipalCorporation of Bombay v. Secretary of State* express sanction wasgiven by the Governor of Bombay to an application of a MunicipalCommissioner for a site for stabling on certain land. On the strengthof this sanction the Municipal Commissioner entered into possessionof the land, and stables were erected on the site in question atconsiderable expense. The High Court held that the Municipalityhad an equity a6 against the Crown within the meaning of the rulelaid down in Ramsden v. Dyson.1 In the- present case, as I interpretthe facts, there was no concluded contract-on the part of the Crownto accept any results that Mr. Beebee might send in under the nameof a “ return, ” whether they conformed to the decree of March 28,1904, and the terms of his commission or not. There was norepresentation by the- Crown, nor did the first plaintiff-respondentbelieve that there was any such representation, that, on paymentinto Court of the amount claimed from him, all inquiry into theadequacy of Mr. Beebee’s return would be waived, and the functionsof the District Court would be restricted to the ministerial duty ofentering a final decree in terms of any figures which that return mightcontain. Even if no application to the District Court was necessary,and only the issue of Crown grants was contemplated by the parties,there was no representation by the Crown, nor, in my opinion,could the first plaintiff-respondent have believed that such grantswould be issued blindly without any scrutiny of Mr. Beebee’sproceedings. The only representation made by Government wasthat, assuming Mr. Beebee to have made a proper return, the Crownwould hold itself bound under the decree of March 28, 1904, to giveeffect to it. The statements in the Administration Beport for 1906,on which the respondents’ counsel relied, do not seem to me to carry
1 (1866) L. R. 1 Eng. and Ir. 129.* (1895) A. C. 83.
* (1884) 9 A. C. 699.* (1901) I. L. R. 25 Bom. 714.
1 (1904) I. L. R. 29. Bom. 580.
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April 8,1910 the case any further. They merely give expression to the assump-Wooi) tion, on which the officers of the Crown were acting at the time,Renton J. that Mr. Beebee had made ‘a return satisfying the terms of theMunasinghe decree of March 28, 1904, and of his commission, and that a finalv. The Assist- settlement of the dispute could be effected on the basis of it. Thestatements in the report were in no way addressed to the firstPvUaktm plaintiff-respondent, and there is nothing to show that he eitheracted upon them or was aware of their existence.
The question of the effect of mistake, and of conduct based onmistake, in cases of this kind, was raised to some extent in GouraChandra Gajapati Narayana Deo v. Secretary of State for India.1This was a suit against the Government of India by the Zamindar ofParlakimedi in 1894, claiming proprietary rights in, and possessionof, certain hill tracts of forest land called “ Maliahs ” as appertain-ing to the Zamindari. These lands had originally belonged to theZamindari, but in consequence of a rebellion in 1799, in which thethen Zamindar took part, the Government, by a Proclamationissued in 1800, declared that the Zamindari was confiscated, andthat the “ Bissoyees ” or local chiefs on service tenures, in respect ofwhich they paid to the Zamindar a sum as kattubadi or quit-rentshould thenceforward pay their revenue directly .to the Collector.But the Proclamation held out a hope of the restoration of the’Zamindar’s son to the land of his ancestors, with the exception ofthose held by the “ Bissoyees, ” which were declared separated fromthe Zamindari for ever. This restoration was made in 1803- From1861 to 1893, in consequence of the disability or incapacity of thesuccessive Zamindars, the Zamindari was in possession of the Courtof Wards, represented by the Collector of the District. The Courtof Wards erroneously treated the “ Maliahs ” as if they belongedto the Zamindari, worked the forests on the “ Maliahs, ” and con-structed roads through them at the expense of the Zamindar, andthe Court of first instance found that the Government regarded theconstruction of these roads as part of the Zamindar’s duty, and notonly urged forward their construction at his expense through themedium of the officers of its own Public Works Department, butin one case cavilled at the short work said to have been turned outby them departmentally. As the Court of Wards was really actingin the matter as the guardian of the Zamindar’s estate, and not asthe representative of the Government, its conduct under the mistakewhich, it was held both by the Agent of the Government of Madraswho investigated the case as Judge of the facts and by the HighCourt of Madras, and the Privy Council on appeal, had arisen onthe question of the inclusion of the 11 Maliah ” lands in the Zamin-dari could create no estoppel against the Government; but it wasurged, and the Agent of the Government of Madras gave effectto the contention, that the Government was estopped from denying1 (1904) I. L. R. 28 Mad. 130.
( 145 )
the title of the Zamindar to these lands owing to its recognition ofsuch title on the strength of which the Zamindar had, with the fullknowledge and at the instance of the Government, expended largesums on the opening up and development of the country by meansof roads. The High Court of Madras held that there was noestoppel, and this decision was affirmed by the Privy Council. Indelivering the judgment of the Judicial Committee, Sir Arthur Wilsonmade use of the following language: —
“ The Court of Wards, on behalf of the Zamindar, was in the posses-sion of the Maliah forests under the mistaken idea that theybelonged to the Zamindari. The Government officials, under thesame mistake, acquiesced in that possession, and while that stateof things continued, they encouraged such an expenditure of Zamin-dari funds upon the Maliahs as seemed good in the public interest.It seems impossible to put the appellant’s case higher than this.And their Lordships can see in this no such representation as couldgive rise to the estoppel contended for.
It appears to me that the facts of the present case are equallyinsufficient for the purpose of creating an estoppel.
(iii) For the reasons I have already given, I do not think thatthere was in this case any such intentional representation on thepart of the Crown as can give rise to an estoppel under section 115of the Evidence Ordinance.
It only remains to notice an argument put forward for the firsttime at the hearing in review. The learned Solicitor-General,while strenuously denying that the facts of this case disclose anyestoppel as against the Crown, further contended that, in any event,the Crown was not bound by estoppels. As I understand theauthorities, it is only in the case of an estoppel under section 115 ofthe Evidence Ordinance that the question of the prerogative rightof the Crown not to be bound by estoppels would arise. In thecase of Attorney-General for Trinidad and Tobago v. Bourne—anaction of ejectment by the Crown—the Colonial Judge of first instanceheld that the prerogative of the Crown, in matters affectingthe rights of revenue of the Sovereign, had not been affected by thelocal Judicature Acts, that in Crown proceedings initiated byinformation of intrusion, the only title to be recognized is a legaltitle, and 6hat no equitable ownership could prevail against theCrown. The Supreme Court of Trinidad held, on appeal, that anequitable defence was available as if it were a case between subjectand subject. In the argument in the Privy Council the appellant’scounsel stated that they did not contend that an equitable defenceby a subject against the Crown did not avail, and Lord Watson,in delivering the decision of the Judicial Committee, dealt with thematter thus:—
“ At the hearing of this appeal counsel for the appellant con-ceded (very properly, in the estimation of their Lordships) that,
April 8,1910
WoodRenton J.
Munasinghev. The Assist-ant Govern-ment Agent,Putlolam
(146 )
April8, 1910 notwithstanding the form of action, every defence was available^-00D to the respondents which would have been open to them in anRbnton J. ejectment suit at the instance of the subject/’
^TheAeaietcase Municipal Corporation of Bombay v. Secretary of
ant Govern- State / the High Court of Bombay expressly held that the Crowncame w^kin the range of the equity with which we are here concerned(and see In re Burma Nandas Jeewundas 1 2 and ToolseemoneyD’ossee v. Maria Margery Cornelius 3 *). As regards estoppel undersection 115 of the Evidence Ordinance, I should be disposed to hold,if it were necessary to decide the point, that the Crown is in thepresent case bound. The authorities for the rule that the Crownis not bound by, although it may take advantage of, estoppels arecollected in Lord Halsbury’s Laws of England/ and bear out theproposition that such a prerogative right exists. The only questionwould be as to whether or not it was applicable to Ceylon. Noauthority was cited to us in the argument, and I am not aware of any,to show’ that there is any rule; either in Roman-Dutch Law or in thestatute law of the Colony, which could be said to have expresslyexcluded its application. Section 115 of the Evidence Ordinancecontains no such provision, and if there had been nothing further,I take it that the principle enunciated by Lord Watson in MaritimeBank of Canada (Liquidators of) v. Receiver-General of New Bruns-wick* would have applied. “ The prerogative of the Queen, ” saidHis Lordship, “ when it has not been expressly limited by local lawor statute, is as extensive in Her Majesty’s Colonial Possessions asin Great Britain. ” It was on the ground of such an express limita-tion of the particular prerogative involved in the case—namely, theright of the Crown to be paid its debts in priority to subject-creditorsof equal degree—that it was, in Exchange Bank of Canada v. Regina *‘ held by the Privy Council to have been impliedly excluded, exceptas regards “ comptables, ” by the provisions of section 1994 of theQuebec Civil Code (and see Palaniappa Chetty v. Ismail Seidik 7).On the other hand, in Maritime Bank of Canada (Liquidators of)v. Receiver-General of New Brunswick,5 the Privy Council approvedof a decision of the Supreme Court of Canada in Regina v. Bankof Nova Scotia,8 holding that this prerogative existed in NovaScotia, and itself affirmed its existence in New Brunswick, in neitherof which. Colonies did any such local legislation exist-
I am inclined, however, to think that, in 6uch proceedings as thepresent at least, the prerogative in question has been, by necessaryimplication, excluded by the right to sue the Crowh concededto the subject by the “Waste Lands Ordinance, 1897.
1 (1904) I. L. R. 29 Bom. 680.
8(1882) I. L. R. 7 Bom. 109.
3 (1873) 11 Ben. 144.
Vol. VI, 410.
(1892) A. C. 437y at p. 441..
(1895) 11 A. C. 157.
(1902) 5 N. L. Rt 322.
US. C.R. 1.
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I would set aside the decree of the Supreme Court in appeal, and April 8,1910direct judgment to be entered setting aside so much of the decree Woodof March 28, 1904,’ as directs a survey of the land therein mentioned Rbhton J.to be made, declares the rights of parties on the finding of that MunaHnghesurvey, and provides that each party should bear its own costs, v. The Assist-The amount of the deposit made by the first plaintiff-respondentmust be returned, and the case should proceed to trial in the ordinary Puttalamway. The appellant is entitled to the costs of the appeal and ofthe hearing in review. The whole costs of the action should, tthink, abide the event.
Grenier J.—
The proceedings in this case commenced with a reference to theDistrict Court of Puttalam under the ‘Waste Lands Ordinance, No. 1of 1897. In the statement of claim dated September 7, 1908,filed by the plaintiffs, the Assistant Government Agent of thePuttalam District being the defendant, it was alleged that the villagePotukulama, which consisted of paddy fields, tanks appertainingthereto, high and low jungle lands, and- forests, was from timeimmemorial the private property of Potukulama Muhandiram andhis predecessors in title, and as such private property was in thepossession of the said Muhandiram in the Saka year 1588 (a.d. 1666)and previously thereto.
The plaintiffs also alleged that the portion of land of the extentof 777 acres, called Potukulama, forming the subject of the reference,was part and parcel of the village Potukulama, and was comprisedwithin the boundaries mentioned in paragraph 2 of the statement ofclaim. The chain of title on which the plaintiffs relied, and whichwas mainly documentary, was clearly set out in the plaint, andstretched over a period of more than one hundred years. It includedtwo sittus of the Saka years 1588 and 1731 respectively.
The defendant filed answer on March 4, 1904, denying that theextent of land which was the subject of the reference was situatedwithin th$ boundaries recited in the two documents pleaded by.the plaintiffs, namely, the sittu of the Saka year 1588 and thesittu dated the Saka year 1731, both of which were impeached asforgeries. The defendant denied that the plaintiffs were entitledto the land under reference, and averred that it consisted of oldforest and was the property of the Crown.
Certain issues were submitted to the Court by the defendant onMarch 4, 1904, and were in the following terms:— .
Is the sittu of Saka 1588 a genuine document or a forgery ?■
Does it include the land in claim ?
Is the sittu of Saka 1731 a genuine document or a forgery ?
Does it include the land in claim ?
Is the land in claim the property of the Crown ?
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April 8,1910
Grenier J.
Munaainghev. The Assist-ant Govern-ment Agent,Puttalam
Is the Crown estopped from claiming the said land ?
Are the plaintiffs entitled to the land under reference by
prescriptive possession ?
I may mention that the sixth issue was evidently framed withreference to a question of estoppel raised by the plaintiffs in thestatement of claim, but it does not appear to have been pressed atany time, and may be dismissed from consideration.
From these issues it would appear that the plaintiffs had putforward a title founded upon certain sittus which were impeachedas forgeries, but in view of what transpired subsequently I thinkit may be assumed that the genuineness of the sittus was notseriously challenged. The case did not go to trial on these issues atall, for I find on March 28, 1904, there is an entry in the record inthe following terms: —
“ The parties having come to a settlement, the advocates andproctors on either side state that a written motion of consent willbe submitted in the course of the day embodying the settlement,and’ asking for judgment in terms thereof.
“ P. Arunachalam,
“ District Judge.”
On the same day I find an entry in these terms: —
” Advocates and proctors present as above and submit a paperwriting marked S, and signed by the defendant and such of theplaintiffs as are present and by the proctors for defendant andplaintiffs. Let judgment be entered in terms thereof.
“ P. Arunachalam,
“ District Judge.”
Under the signature there is the following entry: —
“ Sittus marked A and B referred to in S, and on which plaintiffs’claim is based, is produced by them and filed in the case.
“ P. Arunachalam,
“ District Judge.”
There is another entry on the next page of the record (16) in thefollowing terms: —
” On the motion of Mr. Advocate Fernando, and by consent, it isordered that a Commission do issue to Mr. C. A. Ohlmus, Surveyor,to make the survey asked for in the motion S.”
The motion S, which is to be found on page 91 of the record, isin the following terms: —
“ In the District Court of Puttalam, No. 12, we move that theCrown be adjudged the owner of lot 8,620, above the line indicatedin blue in plan marked X; and that the lots to the south, 8,623,
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8,024, 8,632, 8,631, 8,630, 8,628, 8,629, 8,627, 8,626, be decreed to April 6,1910the plaintiff on payment to the Crown of a sum of Es. 1,000 by QbbsibbJ.plaintiffs; lot 8,621 to be regarded as a village tank. In respect to.
the rest of plaintiffs’ claim as appearing in plan marked Y, it be v,pheAaaiat.decreed that a survey be made by a surveyor appointed by consent;that the Crown be adjudged the owner of all extents of land found Puttalam ’by him to be mukalana or chena or forest above fifteen years ofage, and as regards the remainder, whether abandoned fields,gardens, chena, or forest under fifteen years, that the plaintiff beadjudged the owner of the same on payment to the Crown of asum of Bs. 10 an acre and fees for the same; any tanks within thesaid area to be regarded as village tanks. The plaintiffs to withdrawall claims on the sittus pleaded by them. Costs .divided.
. ” Puttalam, March 28, 1904.”
Underneath this document follow the signatures of the defendant,the then Assistant Government Agent, Mr. Freeman, and theproctors of the claimants, and some of the claimants themselves.
It is necessary, in the first place, to assign to the paper writingmarked S, which embodied the terms of settlement, its truemeaning and effect viewed in relation to the entries under dateMarch 28, 1904. There was a decree drawn up dated March 28,
1904, embodying the terms of the settlement in document 6. Thematerial parts of the decree are as follows; —
“ This action coming on for final disposal before P. Arunachalam,
Esq., a Judge of the District Court of Puttalam, on March 28, 1904,on a motion jointly made by the plaintiffs and defendant, notifyingto this Court under section 408 of the Civil Procedure Code theterms and conditions of a compromise and settlement made andagreed to by and between them in respect to the subject-matter ofthis action, &c., it is ordered and decreed that the Crown be and ishereby adjudged the owner of lot No. 8,620, above the line marked
in blue in plan No. 1,704, marked letter X It is further
adjudged and decreed that in respect of the rest of plaintiffs’ claimas appearing in plan made by Mr. Surveyor Murray, marked letterY, that a survey thereof be made by Government Surveyor,
Mr. C. A. Ohlmus, and that the Crown be and is hereby declaredowner of all extents of land found by him to be mukalana, ehena, orforest above fifteen years of age, and in respect of the remainderthereof, whether abandoned fields, gardens, chena, or forest underfifteen years, it is decreed that the above-named plaintiffs beadjudged the owners thereof on payment by them to the Crownof a sinn of Bs. 10 an acre in addition to the usual fees.”
It will be noted that the decree refers specifically to the termsand conditions of a compromise and settlement made and agreed toby and between the parties in respect of the subject:matter of the
K;
April #, 19X0 action. Now, what was the compromise and settlement which theGrenier J. decree indicates ? The parties had before March 28, 1904, been at—-issue in regard to the genuineness of the two sittus relied upon by
J!the plaintiffs for their title. The plaintiffs had claimed the extenton/ Govern- of land in question as private property, whilst the defendant hadmputtolcm* claimed it as the property of the Crown; and I take it that thesettlement proceeded upon a basis which, while it conceded bothto the plaintiffs and the Crown a great part of their respective claims,left it practically to the arbitration of a surveyor, nominated byboth parties, to determine and find the character of certain portionsof the land about which there was some doubt, whether theyanswered to certain descriptions or not, before plaintiffs wereadjudged the owners. The person so nominated could only use thebest intelligence and observation at his command. This fact musthave been present to the minds of both parties, because there is noinfallible test by which the age of a forest or mukalana can beascertained, and very often hearsay evidence is availed of for thepurpose. The surveyor could do no more than embody in hisreport the results of his observation and judgment, unconsciouslycorrected and modified, perhaps, by the opinion of headmen andold villagers ; and I have therefore advisedly used the word “ arbi-trator *’ in referring to his real function on this occasion. In myopinion the parties by the decree of March 28, 1904, which isexpressly stated to be final, mutually agreed and bound themselvesat the time to accept as an essential part, and later on as anecessary result of the compromise and settlement, they had arrived■at, the surveyor’s return as final, subject of course to a merelyformal adjudication as .regards the specific lots which were to bedeclared to be the property of the plaintiffs and the Crown. Solong as there was no suggestion of fraud or misconduct on the partof the surveyor, his return would be accepted if it sufficientlyascertained and found what the lots were that were to be assignedto the plaintiffs on their compliance with the conditions as topayments, &c. The words used in the decree are all-important,and clearly significant of the intention of the parties. “ That theCrown be adjudged the owner of all extents of land found by him(the surveyor) to be mukalana or chena; and as regards the “remainder, whether abandoned fields, gardens, chena, or forest underfifteen years, that the plaintiff be adjudged the owner of the sameon payment to the Crown of a sum of Rs. 10 an acre and fees forthe same.’1
It seems to me therefore that the parties accepted the decree ofMarch 28, 1904, as a final .and absolute one, not only at the timeit was made, but they regarded it as such, especially the defendant,in the correspondence which passed between the parties, and which,as far as I can gather, terminated with plaintiff’s letter of July 8,1907. To that correspondence I shall presently refer, when I come
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to another branch of the case. I have little hesitation in holding April 8,19Wthat when Beebee’s return, which consisted of (1) six sheets forming gbeniek J.a plan and (2) three sheets signed by him giving in separate columns—-
the number and name and description of each lot, was forwarded v. The Assist-by the Surveyor-General on August 8, 1906, to the District Court, ant Govern-the defendant and his advisers accepted it as reasonably fulfilling “p^ata^jm’all the substantial requirements of the decree of March 28, 1904.
It is hardly credible that these papers were not examined andscrutinized by the Assistant Government Agent for the time being,who was in the position of the defendant, or his legal advisers.
There was nothing to prevent his doing so. If the return were notin accordance with the decree, the defendant should have at oncemoved the Court, upon notice to the plaintiffs, for a fresh commissionto another surveyor. But he took no such step. Therefore therewas, in my opinion, a concluded agreement between the plaintiffsand the Crown on the receipt of Eeebee’s return and its acceptanceby them. Whether that return was defective or not is quite adifferent question. I will assume that it was defective in certainrespects, as pointed out by His Lordship the Chief Justice in thejudgment under review, but, as he has remarked, “ the fact, if it isthe fact, that the return was inaccurate and untrustworthy wouldnot be sufficient reason for setting it aside.” Both parties knew itwas defective, but they seemed to fully understand what Beebeefound ‘as regards the lots in question, because the plaintiffs paid intoCourt the value of the same, and the money is still in deposit there.
In so paying the money the plaintiffs adhered strictly to the termsof the decree of March 28, 1904, which made it a condition precedentto their being “ adjudged ” the owners of the lots in question thatthey should pay to the Crown at the rate of Rs. 10 an acre and fees.
Both parties therefore stood in this position as soon as the plaintiffspaid the money into Court. The plaintiffs had complied v.dth theterms of the decree, and the defendant had acquiesced in the act ofthe plaintiffs by accepting Beebee’s return, and regarding it in thevery same light in which the plaintiffs had regarded it when theyhad paid the money into Court. Whether that money was creditedto revenue or not seems to me immaterial. I do not know thatBeebee’s return was after all so defective as the defendant hassought to make it out to be, because there is the indubitablefact that on November 28, 1906, the Secretary of the DistrictCourt wrote to the plaintiffs requesting them to deposit in CourtRs. 8,956.57, “ being value due to the Crown for the Iota 7, 9, 10,
11, 12, 13, 14, 20, 21, 25, 15, 17, and 19 in accordance with theterms of the decree in the above case.”
The defendant was aware of the terms of the Secretary’s letterat the time it was written. Indeed,, it is admitted that it was at theinstance of the defendant that the plaintiffs were called upon to makethe payment. There is evidence afforded by the correspondence.
14-
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April 8,1910 that on December 6, 1906, the first plaintiff wrote to the defendantOmnebb J. stating that the money had been paid into the Kachcheri, “ being—7balance payment in full for the lots settled on the claimants,
^TheAssUt- including survey and other lees necessary for the issue of grants,ant Oovem- and requesting him to prepare Crown grants in favour of themputtaiam* plaintiffs. It will thus be seen that the identity of the lots wasfixed and ascertained before the money was paid inito Court, andthat there was no objection taken by the defendant on the groundthat Beebee’s return was defective to such an extent that it wasimpossible to ascertain what the lots were, which, in terms of thedecree, were to be declared the property of the plaintiffs. On thecontrary, I think that, with the deposit of the money in Court inthe circumstances under which the deposit was made, both partiesunderstood that there was a concluded agreement between them,from which it was not open to either party to resile unless by mutualconsent. I am therefore inclined to agree with the appellant’scounsel in his contention that there was a concluded agreementbetween the parties, and that all that remained to be done was aformal adjudication and declaration that the plaintiffs were entitledto the lots in question.
I may mention that in the argument of the appeal before HisLordship the Chief Justice and myself the questions I have discussedwere not raised before us, but I have thought it right to addressmyself to them at some length on account of their importance.
The principal question .that was argued on the first appeal waswhether the defendant was estopped by his representation andconduct from denying that the plaintiffs ought to be adjudged theowners of the lots in question for which they have paid money intoCourt. In our Evidence Act, No. 14 of 1895. an estoppel is definedas follows: “When one person has by his declaration, act, oromission intentionally caused or permitted another person to believea thing to be true and to act upon such belief, neither he nor hisrepresentative shall be allowed in any suit or proceeding between. himself, or such person or his representative to deny the truth oftbat thing.” In the present case it is necessary to. inquire, beforewe apply the doctrine of estoppel, what the declarations, acts, oromissions of the defendant were upon which the plaintiffs rely asestablishing an estoppel.
In the first place, after the plaintiffs had made the deposit inCourt, we have a letter written by the defendant to the plaintiff,dated March 13, 1907 (P 2), to the following effect: “ Referring toyour letter dated .December 6, 1906 (P 1), I have the honour toforward a statement of the amount due by you, and if you wantCrown grants for lots 4, 6, and 8, which were declared the propertyof the claimants on payment of Rs. 1,000, it will be necessary topay an additional sum of Rs. 214.73. If, however, you desirelots 4, 5, and 8 bo be excluded, a further sum of Rs. 5.33 is still due.”
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Here we have what amounts to a definite act by the defendant, by Aprils, 1910which he caused the plaintiffs to believe that the sum of money theyj
– had paid into Court had been accepted in respect of the lots settled——
on the plaintiffs, because in the letter written by the plaintiffs theyhad intimated to the defendant that they had paid the sum of ant Govern-Bs. 8,726.57 on account of those lots. Annexed to the defendant’s Puttakon ’letter (P 2) was a statement in detail of the purchase amount andfees in respect of what was described as the “ Potukulama claim.”
In accordance with the request contained in P 2, dated March 13,
1907, the plaintiffs forwarded a cheque for Rs. 214.73 by letter (P 4)dated March 20, 1907, and in letter (P 5) the defendant acknowledgedreceipt of the cheque and sent a formal receipt for the same.
In the second place, we have a declaration by the Crown in theCeylon Administration Report of 1906 (P 7) that the extent of landin question was declared Crown land, but according to the ” agree-ment ” the claimants were to have the option of buying it, andthat it was in fact sold to them. On closely examining this extract(P 7) from the Ceylon Administration Reports, it will be seen thatnot only was this declaration there, which I have referred to, butthe further and more definite statement that the plans which formedthe subject of a reference case were received this year, and that theextent sold to claimants at Rs. 10 per acre and fees were 746 acresand 34 perches. This unmistakably shows that the Crown not onlyaccepted Beebee’s return, but acted upon it by concluding a saleto the plaintiffs of the lots in question.
In the third place, there is the letter from the Colonial Secretarydated March 18, 1907, in reply to a letter from the first plaintiffdated August 11, 1906, requesting that Crown grants might beissued, in which the Colonial Secretary intimated to the plaintiffthat Crown grants had been issued for the lands actually sold, thatno grants would be issued for those decreed by the Court, and thatthe claimants might apply to Court for a final decree in their favour.
Here, again, we have a declaration by the Crown that the sale to theplaintiffs was an accomplished fact, and all that was necessary forthe plaintiffs to do was to apply to the Court for a final decree intheir favour. In other words, that the Crown had no further .interest or claim in the lands in question, and that only a formalapplication was now necessary to effectuate and complete the titleof the plaintiffs. Apparently the plaintiffs thought, and thoughtwrongly, that Crown grants were necessary, and it was for thisreason that they appeared to have been insistent upon obtainingthem. It was in consequence of this misguided view on the subjectthat the first plaintiff wrote, the letter of April 7, 1907, in which hestated that the decree was in no way an adjudication in favour of theclaimant so as to fill the place of a title deed, and that the decreewas only evidence of an agreement entered into between the Crownand the claimants for the future purchase and sale of certain lots
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April 8> 19X0 to be ascertained by the Commissioner; but the first plaintiff wentGbbniek J. on to state in his letter that if any sale followed by the claimants—~ performing the terms of the agreement, the claimants believed thate. The Assist- Crown grants would issue to them in the usual course, and that
ant Govern-
ment Agent,,Puttalam
it was in consequence of this that the claimants withdrew andabandoned all title on the sittus, the basis of their claim, to enablethem to claim their title from the Crown. As I understand thisletter, it simply means that the first plaintiff placed grants from theCrown far above a decree of the Court, and his object in requiringgrants was to make them take the place of the sittus. I havereferred to this letter in passing, because it naturally fell into the lineof thought which I had been pursuing on the question of estoppel.
To resume, the acts and declarations of the defendant which I havealready detailed, taken in connection with certain things that theplaintiffs did, acting upon the belief that the lots in question hadbeen sold to them by the Crown, create, in my opinion, an estoppelunder section 115 of our Evidence Act, and the defendant cannotnow be allowed to say that the plaintiffs ought not to be adjudgedthe owners of the lots in question. I am aware of the existence ofthe word “ intentionally *’ in section 115. It is a sound rule of law,•applicable I believe both to criminal and civil matters, that aperson is presumed to intend the reasonable consequences of his■acts. And I think that in* the present case that rule must apply,and it must be held that the defendant knew what constructionwould be placed upon his acts and declarations by the plaintiffs, andthat the plaintiffs would shape their conduct and action, and altertheir position, to their prejudice it may be, by the attitude adoptedby the defendant. We accordingly find that on December 3, 1906,the first plaintiff executed a mortgage bond (P 8) in favour of some’Chetties, on which he borrowed the sum of Rs. 10,000, mortgagingby way of security “ all his right, title, and interest in and to all
that tract of landcalled and known as Potukulama
under a decree entered in a case No. 12 of the District Court ofPuttalam/* It was stated by plaintiff’s counsel that the money thusraised was part of the money which was deposited on December5, 1906, in terms of the decree of March 28, 1904. There wasnc evidence led by the plaintiff in the Court below in support ofthis statement, but the defendant admitted the ” bare execution ”—the word “ bare ” has to my mind no special significance—of themortgage bond, which meant, I presume, that on December 3,1906, the first plaintiff executed a notarial instrument in favour of•some Chetties, borrowing and receiving from them, as the instrument-shows on the face of it, the sum of Rs. 10,000 upon the security ofcertain lands which are described therein. By this admission Iunderstand the defendant not to have required formal proof of thebond by the notary and the attesting witnesses being called, but.ihe admission by no means involved a denial of the material facts
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recited in the bond in regard to the lending of the money by the April st I91(rmortgagees and the borrowing of it by the mortgagor. The date of Grenier J.the deposit—December 5 or 6, 1906—and the date of the mortgagebond—December 6, 1906—show that the money raised was for the v. The Assist-purpose of making the deposit. So that it seems to me that thefirst plaintiff would not have acted as he did, unless he had believed puttalam ’jr. the truth of a state of things which the defendant had by hisdeclarations and acts caused or permitted him to believe.
Again, although the evidence is slender on the point, a portionof the land in question, about 15 acres, has been cleared. Thisevidence certainly comes from the defendant’s Bide, and I cannotwell see how it can be said there is nothing to show that the clearingwas the work of the plaintiff. Who else would be interested, inthe absence of any positive suggestion to the contrary, in culti-vating or improving the land, but the plaintiff ? There was nosuggestion that the clearing was done by trespassers or squatters,and it may be that, in consequence of the plaintiff withdrawingfrom the proceedings which gave rise to this appeal, no evidencewas forthcoming in regard to the identity of the persons who madethe clearing.
For the reasons I have given,’ I am of opinion that the judgmentunder review rightly decided the question of estoppel against thedefendant. I would unhesitatingly adopt the reasoning of ChiefJustice Jenkins in the case of Dadoba Janardhan u.. Collector ofBombay 1 and his observations in regard to the scope of section 115of the Indian Evidence Act, which is precisely the same as ours.
I shall deal, lastly, with the point which was taken by the learnedSolicitor-General for the first time, after the argument on the firstappeal had been concluded and judgment had been reserved. Iwas on circuit at Kurunegala, where some papers were forwardedto me from the Chief Justice, with a request from the Solicitor-General, as far as I remember, that if our judgment had not passedthe seal of the Court, liberty be given him to submit as a furtherargument in support of his position that it was competent for theDistrict Court to have made the order appealed from, that theKing can do no wrong, and that the Crown is not bound by estoppel.
The point was taken again at the argument of this appeal, and Iwill proceed to deal with it now as briefly as I can. I must confessthat I do not quite see how the prerogative of the King that he cando no wrong can be made to apply to the facts and circumstancesof the case now before us. The real scope of that prerogative mustbe first rightly understood before it can be invoked. In Stephen’sNew Commentaries on the Laws of England, voL ILt 478>
I find the following passage, which clearly explains the extent ofthis prerogative:“ Another attribute to the royal character is
irresponsibility: it being an ancient fundamental maxim that the*
1 (2901) I. L. R. 26 Bom. 714.
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April 8,1910
Grenier J.
Munasinghev. The Assist-ant Govern-ment Agent,Puttakhn
King can do no wrong. This is not to be understood as if everythingtransacted by the Government was of course just and lawful. Itsproper meaning is only this—that no crime or other misconductmust ever be imputed to the Sovereign personally. Howevertyrannical or arbitrary therefore may be the measures pursued orsanctioned by him, he is himself sacred from punishment of everydescription. If any foreign jurisdiction had the power to punishhim, as was formerly claimed by the Pope, the independence ofhis Kingdom would be no more, and if such a power were vestedin any domestic tribunal there would soon be an end of the consti-tution by destroying the free agency of one of the constituent partsof the legislative power. On the same principle no suit or actioncan be brought against the Sovereign even in civil matters. Indeed,his immunity both from civil suit and from penal proceeding restson another subordinate reason also, namely, that no Court canhave jurisdiction over him. For all jurisdiction implies superiorityof power, and proceeds from the, Crown itself. But who, saysFinch, shall command the King ?”1
The true and real effect of this prerogative therefore is that noCourts, Civil or Criminal, have jurisdiction over the King, and thathe is sacred from punishment of every description. It does notmean that he takes upon himself the responsibility of every actof the subordinate government, however unjust and unlawful itmay be, and permits his servants to invoke this prerogative in orderto protect themselves from the consequences of their carelessnessor misconduct. It must be remembered that every act ofG’owarriment is not an act of State, for otherwise it will be opento any official in the position of a Government Agent or AssistantGovernment Agent in this Colony to shelter himself behind theroyal prerogative whenever he does anything which is not justand lawful. The attribute of irresponsibility is purely one whichbelongs to the royal character and person, and I therefore fail tosee in what sense it can be said in this case, with reference to theaction of the Assistant Government Agent of Puttalam in thePotukulama claim, that he was irresponsible for what he did, andthat it was open to him to rip up any part of the proceedings alreadyhad by virtue of the royal prerogative founded on the fundamentalmaxim that the King can do no wrong.
As regards the contention that the Crown is not bound by estoppel,it seems to me that that maxim is also inapplicable to this case.The question of estoppel is one* which has to be governed by therules of evidence, and where the Crown itself gives the subject theright to sue it, as in the Waste Lands Ordinance, No. 1 of 1897,I cannot see how the Crown can say that it is not bound by therules of evidence, and that if it is unsuccessful* it can claim andtake advantage of the prerogative that it is not bound by estoppel.
* Ftnch L. 88.
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On reference to Ordinance No. 1 of 1897, which relates to claims April 9,1910to forest, chena, waste, and unoccupied lands, it will be seen thatj
section 12, sub-section (1), gives the subject the right to sue the—-
Govemment Agent or Assistant Government Agent as representingthe Crown, and section 13 provides that proceedings in references antQovem-instituted under the Ordinance shall be regulated so far as they can puttalam ’be by the Code of Civil Procedure. I take it, therefore, that theCrown has by this Ordinance expressly waived its prerogative that noCourt can have jurisdiction over it, and that the King by his specialgrace and bounty has given the subject the right to sue him througha local representative in the person of the Government Agent orthe Assistant Government Agent, or to put it in accordance with thewording of section 12, “ the Government Agent or Assistant Govern-ment Agent shall appear as defendant on behalf of the Crown.”
The leading case on the subject relating to the right of the subjectto Bue the Crown is to be found in Simon Appii v. Queen’sAdvocate,1 where it was held that since the occupation of the Islandby the British the practice of suing the Crown had been recognizedby the Legislature, and that suits against the Crown now form partof the law of the land.
I would repel the contention founded upon the prerogative rightsrelied upon by the learned Solicitor-General, and hold that theyhave no application to the present case.
I would confirm the judgment under review, with all costs.’
Set aside.