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Present: Lyall Grant J.
PERERA v. WIJESINGHE.686—P. C. Kalutara, 25,303.
Forest Ordinance—Clearing Crown land—Possession oj land for over tenyears—Bona fides—Ordinance No. 16 of 1907, s. 20.
Where the accused was oonvicted of having illicitly clearedCrown land and it was established that the accused was in posses-sion of the land for over ten years,—
Held, that there was sufficient evidence of good faith on thepart of the accused and that the conviction was bad.
AlPPEAL from a conviction by the Police Magistrate of Kalutara.
Weerasinghe, for accused.'
Basnayake, Acting Crown Counsel, for the Crown.
November 2, 1928. Lyaix Grant J.—
The accused in this case was charged with the offence of havingillicitly cleared and broken up the soil of about an acre of Crownland called Galdolayawatta, in breach of section 21 of the ForestOrdinance, No. 16 of 1907, and with thereby having committed anoffence punishable under section 22 of that Ordinance. The learnedMagistrate has found as a fact that the accused is the owner of a landcalled Galdolayawatta of about 2 acres in extent and that there arerubber trees on it which are about 12 or 13 years old. The accusedwas found guilty of encroachment and was fined Rs. 50, in defaultsix weeks’ rigorous imprisonment.
The question of encroachment on Crown lands is dealt with byOrdinance No. 12 of 1840, which confers certain rights upon personswho have taken possession of and cultivated Crown land for a periodof not less than 10 years. Section 8 of the Ordinance provides thatif a person without a grant or title from Government has takenpossession of, cultivated, planted, or otherwise improved any landbelonging to Government, and shall have held uninterruptedpossession thereof for not less than 10 nor more than 30 years,such person shall be entitled to a grant from Government for suchland on certain payment with certain exceptions. The accused,therefore, is in the position that he is entitled to make a demand ofGovernment for a grant for the land which he has planted andimproved.
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I do not think that the Forest Ordinance was intended in anyway to impair the rights which were conferred by the Crown LandsOrdinance, or to penalize a person who had acquired rights as againstGovernment. The accused in the present case avers that theplantation was in fact made by his father,-who died some time afterthe making and that both he and his father have acted under thebona fide impression that they were entitled to the land in question.He has also produced a title deed, which, he says, refers to this land,I see no reason, apart from any other considerations, to suppose thatthe accused has acted otherwise than bona fide, and on this groundalone the prosecution ought net to have succeeded. I would referto the case of Obeyesekere v. Menik Naide.1
The appeal is allowed and the conviction quashed.
Perera v. .Wijesinghe:
PERERA v. WIJESINGHE