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PODDA v. PABULI et at.
G. R.t Negombo, 11,310.
Crown grant, effect of—Possession of Crown land for over ten years—Jus inre—Jusretentionis—Sale byCrown—Rights ofpurchaser
from Crown—Ordinance No. 12 of 1840, s. 8.
A Crown grant does not convey an indefeasible title.
Where a person has been in uninterrupted possession of landbelonging to the Crown for not less than ten years nor more thanthirty years, such person acquires under section 8 of OrdinanceNo. 12 of1840 apermanent interest inthe property;andhe cannot
be ejectedtherefrom, unless the land isrequired forpublic purposes
or for theuse ofHis Majesty; and theCrown cannotbyselling the
land to a third party deprive the possessor of the benefit given tohim by that -section.
rjiHE facts are fully set forth in the judgment.
A. Jayewardene, for appellants.
H. J. G. Pereira, for respondent.
Cur. adv. vult.
22nd June, 1905. Grenier, A.J.—
In this case the plaintiff alleged that one Wanasinpedige Pabuliwas entitled to the land called Delgahawatta, the boundaries ofwhich are given in the first paragraph of the plaint, by virtue of agrant from the Government of Ceylon bearing No. 31,272, datedthe 15th December, 1896. It was also alleged that the grantee andher husband Menika. by their deed No. 23,477, dated 8th January,1899, transferred a half share of the land to the plaintiff, and puthim in possession thereof, the remaining half share being the pro-perty of the fourth defendant. The plaintiff pleaded a title byprescription, and his cause of action against the three defendantswas that they took wrongful and unlawful possession of the plaintiff'shalf share of the'land, and have been in possession of it since the12th October, 1903., The action was brought on the 2§th March, 1904.
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The defendants answered, denying that the Crown was the ownerof the land, on the 15th December, 1896, or that it had any rightto sell and transfer it to plaintiff’s vendor,.Pabuli, or that it put herin possession as alleged. The title disclosed by the defendants wasthat one Sawwa and Unga, who were brothers, were the ownersof the land by right of prescriptive possession, and they also allegedthat the Crown could not deprive Sawwa and his heirs of the rightof purchasing the land on payment of half the improved value of it.It would thus appear that the defendants admitted the originaltitle to be in the Crown. The defendants also alleged that Sawwaaqd Unga divided the land into two equal parts many years ago—-the date of the division is not. specified; that Sawwa possessed theeastern portion and Unga the western portion, which is now in thepossession of the fourth defendant.
The Commissioner framed five issues, and a good deal of evidencewas led on both sides. I may say at once that on the first issue—whether the Crown grant conveyed an indefeasible title to plaintiff—it is now settled law that a Crown grant does not convey such a title'.The Commissioner was, therefore, wrong in deciding this issueagainst the defendants. The Commissioner says that if the defend-ants chose they may claim damages from the Crown; but I woulddirect his attention to a judgment which is not reported, a copy ofwhich I have directed the Begistrar to be forwarded to him, inwhich a Bench of two Judges in a case similar to the one before meheld as follows. (I am quoting from Mr. Justice Wendt’s judgmentin D. C., Colombo, 15,126);
“ The right which a possessor, an improver of – land, acquiresunder section 8 of Ordinance No. 112 of 1840 is something greaterand higher than that of the holder of an agreement to convey. Hehas possessed and improved the land, and that would under theCommon Law entitle him to retain possession as against the owneruntil he was paid the full value of his improvements. The Ordinancesubstitutes for that right the right to claim half the improved valueof the land, and the full value of all buildings ^f the Crown desiresto turn the possessors out on the ground that it requires the landfor public purposes or for the use of His Majesty. If the land isnot so required the possessor cannot be turned .out, but is entitledto a grant of the land on paying half its improved value. Now, itcannot be contended that if a man has entered .upon and improvedmy land under the circumstances entitling him to the jus retentionis,I could defeat his right by merely transferring the land to another,and that this other could obtain ejectment against him withoutcompensating* him for the improvement to the* land.”
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1906. In the present ease the Commissioner has not found definitelyjune 22. on the question of possession. It was submitted for the appellantsOa&NiBB, that they had been in possession of the land for nearly one-third ofA-J. a century before the Crown granted it to Pabuli. There is noprecise proof of such possession. If the appellants could establishtheir possession in. terms of section 8 of Ordinance No. 12 of 1840—thatis,, that they had uninterrupted possession and had cultivated,planted, or otherwise improved the land for not less than ten nor morethan thirty years—then they would be entitled to a grant from Gov-ernment on payment by them of half the improved value of the land,unless Government should require the same for public * purposes orfor the use of His Majesty. If they had been in such possession,their rights would not be in the slightest degree affected by thegrant in favour of Pabuli in 1896./
I would, therefore, set aside the judgment of the Court below,and send the case back for the Commissioner to find on the questionas to the possession of the land by the defendants, guiding himselfin his ultimate decision by the judgment of this Court which I havealready referred to. Both parties are at liberty to adducefurther evidence in regard to possession. All costs will abide the finalresult.
PODDA v. PABULI et al