FERNANDO A.J.—Pedrick Appuhamy v. Ekman Singho.
1936Present: Abrahams C.J. and Fernando A.J.
PEDRICK APPUHAMY v. EKMAN SINGHO et al.
88—D. C. Kalutara, 17,976.
Public document—Register kept by Vel-Vidane—Not on official duty—EvidenceOrdinance, s. 74.
A register kept by a Vel-Vidane for his own information and not inpursuance of an official duty imposed on him is not a public documentwithin the meaning of section 74 of the Evidence Ordinance.
y^PPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera (with him J. L. M. Fernando), for plaintiff, appellants.
A. W. H. Abeysundera and M. T. de S. Amerasekera, tor defendants,respondents.
August 28, 1936. Fernando A.J.—
In this case the appellants sued the respondents for a declaration thatthey were entitled to the field described in the plaint, and they claimedtitle from one Podyappu, the original second plaintiff, who purchased thesaid field in 1886 at a sale for non-payment of grain tax against one GiroHamy. The defendants pleaded that the original owner was not GiroHamy, but Alisan her husband, and alleged that on Alisan’s death thetitle devolved on his widow Giro Hamy and her son Charles. They
186FERNANDO A.J.—Pedrick. Appuhamy v. Ekman Singho.
further pleaded that Giro Hamy and Charles had executed certaintransfers by which the title was presently in the defendants.
Three issues were framed.
Was the land sold for non-payment of grain tax and purchased by
Prescriptive rights (of parties).
On the first issue the learned District Judge held that the legal titlewas in the deceased second plaintiff and his successors, and this finding isnot challenged. He states in his' judgment that it is possible thatPodyappu acted on behalf of his sister, and that possession continued inthe same way as before the sale but the onus to prove that such were thefacts was on the defence. He then went on to consider the evidence thatwas led and ultimately held that “ the rights if any acquired by Podyappuon the certificate of sale had been lost by adverse prescriptive possessionon the part of Giro Hamy, and her children and their successors in title ”.The learned Judge appears to have overlooked the fact that as a principleof law it is not possible in Ceylon to argue that the owner of a land loseshis rights by the adverse possession of others. Before his rights can beaffected in any way there must be proof that some one else has acquireda title to the land by adverse possession, and it is not open to the personactually in possession at any time to tack on his period of possession tothe period during which people other than his predecessors in title hadbeen in possession before him.
The learned Judge bases his finding in favour of the defendants chieflyon the entries in the document X 1 which he admitted in evidence. X 1contains certain entries made by one Karunaratne who formerly held theoffice of Vel-Vidane, and there is one entry with regard to the field inquestion to the effect that in 1919-1920 the portion referred to as number2, was owned and actually cultivated by five persons whose names aregiven, and among those names are Giro Hamy and Podyappu. Theperson who made the entry was not called. The evidence shows that hewas alive and available as a witness, and the document appears to havebeen admitted by the learned District Judge as a public document. Thereis nothing however to show that the Vel-Vidane as such was under anypublic obligation to keep a document in the form of X 1. According tothe witness Don Carolis, these books are entered up when the Mudaliyarsends orders, and names are entered at the request of the owners. He alsostates that not all the fields in the villages are entered in the book. InRamanathan v. Ponniah1 it was held that a temple register prepared bysome clerk in the Kachcheri, who is under no obligation to keep such aregister, and which register was merely compiled for the information ofthp Government Agent, was not a public document within the meaningof section 74, of the Evidence Ordinance. That section refers to docu-ments forming the acts or records of the acts of the Sovereign authority,of official bodies and tribunals, of public officers, legislative, judicial,and executive, and unless it can be proved that a document is regularlykept as required by law, and that entries in such document are entries ofthe actions of public officials within the meaning of this section, it is not a
1 (1916) 2 C. W. R. 333.
ABRAHAMS C.J.—Pedrick Appuhamy v. Ekman Singho.
public document. From the evidence it would appear that the register inthis case was one kept by the Vel-Vidane for his own information, andthat the entries in question were made at the request of the persons whosenames appear on it, and do not constitute any action of the Vel-Vidanehimself. In these circumstances the document merely contains evidencewith regard to something that was stated to the Vel-Vidane. It is alsocurious that the person who made the entries was not himself calledto explain how or why the entries came to be made. I would thereforehold that the document was not a public document and was wronglyadmitted.
The onus of proving that they had acquired a title to the land byprescription was clearly on the defence, and there is no evidence on therecord which is sufficient to discharge that onus. I would therefore holdthat the defendants have failed to prove that they have acquired a titleby prescription.
The plaintiffs in their plaint, claimed Rs. 150 as damages for oneharvest, and further damages at the rate of Rs. 300 per annum from thedate of action, but in his evidence the first plaintiff stated that he leasedthe land for six years for Rs. 120, and that the ground rent comes only toRs. 20 a year. There is no evidence to the contrary, and there is nofinding by the District Judge on this point. I would therefore set asidethe decree of the District Court, and enter judgment declaring the firstand the third to the eleventh plaintiffs entitled to the field, and orderingthe defendants jointly and severally to pay to the plaintiffs, damages atthe rate of Rs. 10 for the harvest immediately before the action, andRs. 20 per annum from the date of action till the plaintiffs are restored topossession. The respondents will also pay to the appellants their costs ofthis appeal, and of the action in the Court below.
I agree. The learned District Judge bases his conclusions very largelyon the entries in a book kept by a former Vel-Vidane of the district wherethe land concerned was situated. This book was not proved to havebeen kept in pursuance of any official duty imposed upon the Vel-Vidane,and it would therefore appear to have been kept for the convenience ofthe Vel-Vidane himself. It cannot therefore be regarded as a publicdocument within the meaning of section 74 of the Evidence Ordinance andought not to have been admitted as evidence unless produced by the veryperson who kept it.
But even if it were a public document, far from leading a Court towardsa decision it appears to me to tend to confusion. Apparently the entrieswere made merely on the information of the persons to whom they relate,so that they are at best no more than individual claims to ownership, andwhen one sees that Giro Hamy and Podi Appu, to say nothing of threeother persons, all appear to claim to be owners of the piece of land involved,it may possibly be that they were not definitely claiming ownership butonly meant to record the fact of cultivation since they were all kinsfolk.
I would allow the appeal and give judgment for the appellant on theterms set out by my brother Fernando.
PEDRICK APPUHAMY v. EKMAN SINGHO et al