PONNIAH et al , Appellants, and CHELLIAH et al , Respondents

071-NLR-NLR-V-51-PONNIAH-et-al-Appellants-and-CHELLIAH-et-al-Respondents.pdf


Ponniah «. Chdliah
289
1949Present; Nagalingam J. and Pulle J.
PONNIAH et al,, Appellants, and CHELL1AH et al., Respondents8. C. 45—73. C. Chavakachcheri, 2,760
Evidence Ordinance—Entries m public documents—Admissibility and proof oj—Sections 34 to 38, 84.
Action rei vindicatio—Description of land in dispute in deeds relating to adjoiningproperties—Probative value.
Entries of statements regarding title to land made in documents whichwere prepared under sections 10 and 11 of the Defence (Paddy Cultivation)Regulations, 1943, fall under section 35 of the Evidence Ordinance and areadmissible without further proof such as by calling tho persons who wroteor made the entries or statements.
Whoro a land, tlie title to which is in dispute, is alleged to belong to a temple,the mere description of it in language suggesting that it belongs to the templein the deeds relating to the lands adjoining the disputed land cannot be regardedas conclusive legal proof of tho title of the temple to the land. While a des-cription of a parcel of land in the deeds relating to the adjoining propertiesmay furnish corroboration of title it does not constitute direct evidence oflegal titlo.
Appeal from a judgment of the District Court, Chavakachcheri.
This was an action rei vindicatio in respect of a paddy land.
In proof of possession by the second defendant, who was the vendorto the plaintiff, certified copies of certain documents prepared undersections 10 and 11 of the Defence (Paddy Cultivation) Regulations, 1943,were produced. According to thoso sections the duty is cast on everyowner or cultivator of land whioh is cultivated with paddy to give in-formation relating to (1) the names and addresses of the person or personsentitled to take or receive any part of the produce of the land, (2) theshare or shares of the produce to which such person or persons may beentitled. The regulations also empower the proper authority to requireany person present at the time of his inspection or assessment to furnishinformation as to the names and addresses of the persous who are knownto be entitled to shares in such paddy and the respective Bhares claimedby such persons.
It was argued that the documents which were produced did not standon a level higher than that of private documents and should havebeen rejected in the absence of express proof given by the officers whomade or compiled them.
C. Tkiagalingam, with S. Mahadeva, for the first and third defendants,appellants.
8. J. V. Chelvanayagam, K.C., with C. Vanniasingham , for the seconddefendant respondent.
C. CheUappah, with 8. Sharvananda, for the plaintiff respondent.
Cur. adv. vult.
13LI.
1J. N. A 96049-1,042 (4/50)
290
NAGAX.INOAM J.—Ponniafi v. ChtUiah
December 14, 1949. Nagaungam J.—
This is an appeal from a judgment of the learned District Judge ofChavakachcheri declaring tho plaintiff entitled to an allotment of landcalled Kadatkiranchithalavuvayal described in the schedule to theplaint. The appellants, who are the first and third defendants, contestthe finding of the learned District Judge on the ground that he hasmisdirected himself both on the facts and the law.
This being an action for rei vindicatio the burden is primarily on theplaintiff to establish his titlo. The second defendant respondent whois the vendor to the plaintiff traces his title from a thombu register of1822 in which, inter alia, a land bearing the name of the land in dispute■and in extent 25 lachams p.c., is registered in tho name of one Sinna-pillai, wife of Kadirgaman. That the description of the land given inthe thombu—or the lack of description therein—-is such that directidentification of the land in the register with tho land in dispute is notpossible is conceded; further, the entry being one made in the year1822, oral testimony of identification is also out of the question.
The second defendant, however, takes upon himself to say that the landreferred to in the thombu register is the identical one that is referredto in this action, and he attempts to co-relate these facts by reason ofthe genealogical tree to which he deposes as well as by reference to certainsubsequent deeds and entries in Government registers; but both thedeeds and the registers are themselves not later than 1837, so that onehas really to depend entirely on the oral testimony of tho second defendantwhich cannot but be regarded in any other light than that it is basedupon information gathered by him from members of his family.
I do not therefore propose to deal with the old documents exceptingto observe that they do not furnish any proof of a cogent character tosustain the second defendant’s case that the land in dispute belongedto his ancestors. There are, however, later documents which certainlydo support the second defendant's case insofar as possession at least isconcemod. Those are the documents 2 D 5 to 2 D 9.
Of these documents objection was taken by Counsel for the first andthird defendants to the admissibility of documents 2 D 6 to 2 D 9 butthe learned trial Judge overruled the objections and admitted thedocuments in evidence. The objections have been reiterated beforeus on appeal. The documents 2 D 6 to 2 D 8 are certified copies issuedunder the hand of the Divisional Revenue Officor of Tenmaratchy and2 D 9 is a permit under the hand of the Kerama Vidano. The documents2 D 6 to 2 D 9 are documents purporting to have been prepared under theDefence (Paddy Cultivation) Regulations, 1943. According to sections10 and 11 of those regulations, published in the Reprint of October 1946,at page 74 el seq. the duty is cast on every owner or cultivator of landwhich is cultivated with paddy to give certain information of whichonly the following need be noticed: (1) the names and addresses ofthe person or persons entitled to take or receive any part of the produceof the land, (2) the share or shares of the produce to which such personor persons may be entitled. The regulations also empower the properauthority to require any person present at the time of his inspection or
NAUALlWiAU •!•••
291
—t'onn-iah o. Che!Hah
assessment to furnish information as to tho names and addresses of thepersons who are known to be entitled to shares in such paddy and therespective shares claimed by such persons.
ft has been argued that these documents do not stand on any higherlevel than that of private documents. It is said that the regulations do notanywhere require the officer to maintain “ a paddy assessment register ”of which 2 D 6 is said to bo an extract. While it is true that no specificdirection is to be found in the regulations that a register should bemaintained, the requirement that the proper authority should obtaintho necessary information from persons who would ordinarily be in aposition to furnish accurate information in regard to those mattersmust lead to the inevitable conclusion that the proper authority afterreceiving the relevant information should embody it in writing. Itcannot bo argued that lie must get tho information orally and afterlistening to the information merely carry it at best as a mental recordmade by him. I do not think Government business could be conductedon such a basis, and though there is no express provision with regard toreducing the information to writing or to tabulating it in a form capableof easy reference, nevertheless, when the information was committedto writing by the proper authority in a tabular form thus entitlinginformation in regard to a series of paddy fields to be referred to com*positely as a register, the register must in fact be regarded as a documentprepared by a public servant in the discharge of his official duty.
2D 7 and 2 D 8 are extracts from a book of assessment in regard to theyield of the various paddy fields and this particular document hasreference to the yield of the land in question and the shares allotted tothe various persons entitled to shares in the paddy harvested. These,too, therefore, are documents that are kept in the course of officialbusiness by a public servant. 2 D 9 is a copy of a permit said to havebeen issued by the proper authority under the Defence Regulations toenablo the first defendant as cultivator to remove paddy from tho fieldto his residence. This document too falls in the same category as 2 D 7and 2 D 8. These documents 2 D 6 to 2 D 9 are prima facie entries in apublic or other official book, register or record made by one or morepublic servants in the discharge of their official duty. That they containstatements of facts relevant or apposite to the case there is no question.Section 35 of the Evidence Ordinance makes these entries themselvesrelevant facts. Learned Counsel for the appellants urges that oven ifthese entries be regarded as falling under section 35 of the EvidenceOrdinance, yet they must be proved like any other private documentby calling the person or persons who prepared the document. He basedhis contention upon the fact that section 35 falls under Part I of theEvidence Ordinance which deals with the “relevancy of facts”. Asthere is no section of the Evidence Ordinance in Part II relating to proofwhich could be relied upon as exempting the class of documents referredto in section 35 from being proved as any private document should be,the document, it is contended, should have been rejected in the absenceof express proof given by the officers who made or compiled them.
Sections 34 to 38 of the Evidence Ordinance appear in Chapter 2 ofPart I of the Ordinance, not under the sub-heading of “ Relevancy of
292
NTAOALINGAM X— Panniah v. ChtUiah
facte ” but under the sub-head “ Statements made under special cir-cumstances As I read these sections 34 to 38, the opinion I form isthat the entries or statements in the documents referred to in thosesections are relevant not only in the sense that they are pertinent to thematter under investigation and have a bearing on the questions beforethe Court, but also that they are admissible without further proof such asby calling the persons who wrote or made the entries or statements.
To take, for instance, section 34, which declares that entries in hookaof account regularly kept in the course of business are relevant, wh&tneed be proved is that the books of account were in fact regularly keptin the course of business and that will have to be done by means oforal testimony. Once evidence is given that the books have beenregularly kept in the course of business the entries in the boohs becomeadmissible without proof of the entry having been made by any particularperson or of the knowledge the person had who did make the entry,for otherwise this provision would be unnecessary as such an entry isalready declared relevant under one or more of the preceding sections 5to 16 of the Ordinance and there would have been no further necessityto enact this particular section.
To take section 38, which declares that when the Court has to form anopinion as to the law of a country any statement of such law containedin a book purporting to be printed or published under the authorityof the Government of such country is relevant, it cannot be said tbat-anything more is required to be done than to produce such a book. Ithas, however, been said that section 84 of the Evidence Ordinancepermits such a course in this instance, but section 84 meroly says that theCourt shall presume the genuineness of every book purporting to beprinted or published under the authority of the Government of a country.The presumption of genuineness is far removed from proof of the contentsof the document. Section 84 merely prevents the contention being putforward that the book purporting to be published under the authorityof the Government of a country should aliunde be proved to have beenso published. It is therefore clear that when section 38 declares anystatement of law contained in a book to be relevant it moans that notonly is such statement of some bearing in regard to the questions inissue before Court but also that such statement of the law is admissiblewithout further proof. No local case has been cited in regard to theconstruction of these sections.
Indian commentators on the Law of Evidence have also adopted thisview, and judicial interpretation by the Privy Council is to the likeeffect. To take the most popular Indian publication, in Woodroffe <fcAmeer Alt's Law of Evidence1 appears the following passage in a generalcommentary to the sections referred to :
“Two general classes of statements are dealt with in this portionof the chapter—(a) entries in books of account regularly kept in thecourse of business, (6) entries in public documents or in documentsof a public character. Both classes of statements are relevantwhether the person toho made them is or is not called as a witness and1 9th ed. atp. 375.
NAGALINGAM .f.—t'onniah v. CheUiah
2»3
whether he is or is not a party to the suit, and are admissible owingto the special character and the circumstances under which they are madewhich in themselves afford a guarantee for their truth.”
In discussing particularly section 35, the learned authors say in regardto entries referred to in this section1 :—
" They are admissible though not confirmed by oath or cross-examina-tion, partly because in some cases they are required by law to bekept and in all are made by authorised and accredited persons appointedfor the purpose and under the sanction of the official duty, partly onaccount of the publicity of the subject-matter and in some instancesof their antiquity.”
Similar observations are to be found in discussing each and every oneof the other sections falling under the sub-head of “ Statements madeunder special circumstances.”
The Privy Council placed a similar construction as early as 1879 onthis section in the case of Lakerajkuar Mahpal Singh1. The questionthat arose there was as regards tho admissibility of certain villageadministration papers in which was recorded the mode of devolution ofproperty governing certain families. These administration papers wereprepared in pursuance of certain regulations made in that behalf.In regard to the contention that the entries by themselves were notadmissible, their Lordships observed :
“ There can be no doubt that the entries in question, supposingthey boar the construction, already given to them, state a relevantfact, if not the very fact in issue, namely, the usage of the BahruiiaClan. If so, then the entry having stated the relevant fact, tho entryitself becomes by force of the section a relevant fact, that is to say,it may be given in evidence as a relevant fact because, being made by apublic officer it contains an entry of a fact which is relevant.”
I hold, therefore, that the documents 2 D 0 to 2 D 9 were properlyadmitted by the trial Judge.
Xo»v, these documents show that during the paddy cultivation seasonof 1944-45 and 1945-46 the first defendant cultivated the field in questionas a lessee under the second defendant’s brother, Eliyathamby, andthat tho first defendant received the cultivator’s share while Eliya-thamby appropriated the landowner’s sharo. I find it difficult to believethat the first defendant did not become aware of the fact that informationrelating to the names of persons who were entitled to shares in the paddycrop was being collected by the authorities or that he did not knowthat before he could transport paddy from the field to his house he had toget a permit. The first defendant as cultivator of the field would becomeacquainted with the legal requirements in vogue during World War IIthat transport of paddy even from tile field to tho cultivator’s house orbarn was proliibited excepting under permit. Those requirementswould have been common knowledge in the village and the denial of thefirst defendant is significant, for had ho admitted knowledge of these1 at p. 383.* I.L.R. 5 Cat. 744.
NAG ALIN GA M J.—Ponniuh v. Chelliah
294
requirements he would not have been able to explain the entries irtdocuments 2 D 5 to 2 D 9, which arc adverse to the case set up by himand the third defendant. The first defendant, therefore, one can easilysee, adopted the simple expedient of feigning ignorance of the dutiescast upon cultivators by these regulations. These considerations leadme to the view that the second defendant’s evidence is true, that thefirst defendant was a cultivator under his brother Eliyatharaby .andthat after the latter’s death, when the first defendant was asked tosurrender the field, he evolved a scheme whereby he could keep at baythe second defendant and his vendee by setting up ju* tertii in theperson of the third defendant who was on his application added aparty to the suit.
It is of some importance to focus attention on the answers filed byboth the first and third defendants. The first defendant in his answerdid not expressly state that he was a tenant under the third defendant.Although the plaintiff had set out in his plaint that the first defendanthad been a cultivator under the second defendant and that he had tocome into Court because the first defendant alleged the land belongedto the temple at Chithamparam, the first defendant merely reiteratedin liis answer thatthe field belongs to the Cfiithamparam AmbalavanarSwami Kovil and the first defendant is possessing the land for the lasteighteen years and is giving the ground share of the said land for thebenefit of the said Temple.” But oven more important t-han this state-ment in the answer is the further statement that he possessed the field“ on behalf of the said Chithampcram Ambalavanar Kovil at India forover ten years and have acquired prescriptive right and title to the saidland in terms of section 3 of Ordinance No. 22 of 1871.”
No explanation has been given by the first defendant why he was atpains to assert the title of the Chithamparam Temple and not set outexplicitly the fact that he was a tenant under the third defendant andleave it to the third defendant to set out and defend whatever title liemay have against the plaintiff.
After answor of the first defendant was filed, the case was set downfor trial and it was on the trial date that an application was made on hisbehalf that the third defendant should be added as a party dofendantfor the purpose of effectually disposing of the rights of parties. There isevidence which show's that- after the date was given to add the thirddefendant as a party to the action the first defendant and the Udayarof the area where the land is situated both made a trip to Chithamparamand it was subsequent to that trip of theirs that a proxy granted bythe third defendant was filed by the first defendant’s Proctor.
In the third defendant’s answer the third defendant expressly setsout in paragraph 3 thereof that “ the land belongs to the ChithamparamAmbalavanar Swami Temple.” He does not say that the land belongsto any maddam or pilgrim house but, true, he goes on to say that hepossessed the land “ for the benefit of the said Temple and the maddamcalled Pararajasekeram Maharaja Kattalai Kalliandandu Maddamattached to the said temple.” The third defendant also claimed in hisanswer to bo in possession of the said land “ as manager and as trusteeof* the said temple and maddam.”
NAGALINGAM J.—Ponniah v. Chelliah
295
The third defendant, it would be noticed, has singularly failed in hisanswer to set out the basis of his title to be manager and trustee of theChithamparam Ambalavanar Swami Temple or the title by which theheld in question became vested in the temple. One would have expectedthat the party who had a legitimate and bona fide right as trustee of atemple to be in possession of lands onits behalf would have, in the forefrontof the assertion of his title, set out both these matters in full. What isstill more surprising is that the third defondant not only did not giveevidence but even failed to be present in Court at the date of trial, leavingthe door open for the allegation that he was either unconcerned with theresult of the litigation or that he could not support the averments in hisanswer.
At the trial, the first defendant admitted in express terms that*' the third defendant was the trustee of the ntaddam and not of thetemple. Maddam is different from the temple” and also that “thethird defendant or any other trustees are not claiming on behalf of thetemple.” So that, though the first defendant in his answer had himselfclaimed to have held the property for the temple and the third defendantin his answer expressly stated that he as manager and trustee of thetemple claimed to possess the land, yet at the trial evidence destroy*ing these assertions was given by the first defendant, himself.
To any Hindu the claim that the third defendant or the first defendant .was holding some property belonging to the Chithamparam Temple astrustee of it would be obvious was a preposterous one. It would be ona par with a claim made by a person in Ceylon to hold some property inthe Island os trustee of St. Peter’s at Rome. The ChithamparamTemple, as every Hindu knows, has hereditary trustees belonging tocertain well recognized families of Brahmin priests, and those trusteesare the persons in whom the temporalities of the temple are and can bevested, and any person claiming to hold on behalf of the temple mustshow a title derived from those trustees and no less. Hence it was thatthe first defendant had perforce to admit that no one, not even the thirddefendant, was holding the field as trustee for the Temple.
The appellant’s case, therefore, had to suffer a change, and this changewas partially adumbrated in the answer filed by the third defendantwhen he said that he was holding the property for the benefit of thetemple and the maddam, and it was then sought to establish that thefield was possessed on behalf of the maddam, but this contention hasboon demonstrated to be wholly untenable. It was shown by docu-mentary evidence that when there was litigation between the thirddefendant and another person who claimed to be trustee along with himof the maddam, not only was a full list of all the properties belonging totho maddam set out but the third defendant was appointed trustee forthe maddam of the lands set out in the said list. That list, it is conceded,makes no reference to the land in dispute, so that the claim to hold thefield on behalf of the maddam too fails.
Strangely, however, another line of argument was adopted to showthat the land belongs to the temple. No deed, no registers, no documentsof any kind in favour of the temple have been produced by the appellantsto Bustain their statement that the land in fact is a templo land, but
290
N’AGALINGAM J—Pormiah v. CheUiah
they sought to establish it in a most circuitous and indirect manner.Certain deeds relating to the lands adjoining the land in dispute havebeen produced and it has been pointed out that the land in dispute isreferred to in describing the boundaries of those lands as the land belongingto Chithamparam Ambalavanar Swami Temple. But the fact that anumber of people did call a piece of land as belonging to the AmbalavanarSwami Temple at Chithamparam does not establish that the land infact belongs to the Ambalavanar Swami Temple. The most that canbe said is that the land at some time or other did belong or was regardedas belonging to the Ambalavanar Swami Temple. A common instancein the southern parts of the Island is to find a land described as “ Pansai-watta ” or “ Hettigewatta ” but that does not mean that the landcontinues to belong at all times to a pansala or a Chefcty. It is well-known that where , an owner of land permits a pansala or an avasa to beput up though without ever intending to dedicate it to the Sangha, theland acquires the name of Pansalwatta, but that is far from saying thatthe title to the land in fact is lost by the true owner.
In this case, there is not an iota of evidence tending to show who it wasthat granted this land to the temple at Chithamparam which is situatedbeyond the seas, nor is there any evidence to show bow the grant wasmade. It is common in Jaffna that an owner may on his death-bedgive an oral direction that a cow, a tree or a piece of land should be givento a Temple but, ignoring for a moment movable property, it would beobvious that transfer of immovable property cannot be effected orallyunder our law, and any such gift or bequest would be of no avail tovest the title thereto in tho temple or to deprive the heirs of their rightto inherit the property as forming part of the assets of the deceased.It is also equally true, however, to say that an oral dedication evon ofimmovable property by an owner is more often than not sought to begiven effect to by the heirs of a deceased person by not effecting a divisionof the land among the heirs but treating the land as though it in fact hadproperly and effectively been transferred to the temple. The heirs,however, themselves more often than not would not have knowledgeof who the trustees are of the temple or to whom such a land could betransferred, and the trustees themselves would not, even if communicatedwith, trouble themselves to take possession of a small plot of land ofno great value and of which the income would be very small. What thenhappens is that one or more of the heirs continues in possession andbeing in ignoranco as to the proper person to whom he could remiteven the income continues to accumulate the income as far as it is in hispower to do so in the hope that some day, when he goes on a pilgrimageto the temple, which it is the ambition of every pious Hindu in Jaffnato do, he would take it and hand it to some person in Chithamparam onbehalf of the temple. But it by no means follows that these piousintentions are always carried out. When the heirs find themselves inneedy circumstances the pious wishes of the deceased are ignored andthey continue to deal with the land as though there was no grant of itto the temple. Even where the heirs are in affluent circumstances,it is not unknown that the land, the subject of an alleged grant, con-tinues to be treated as private property for the reason that the incomeis small and the difficulties of ascertaining to whom the income «hnnM be
JAYETILEKE S.P.J.—Sangaralingam PiUai v. Mohamadu
297
remitted and of so remitting are, if one visualises the state of the countryin the 1830’s or 1840’s, that the land is dealt with as private property,but the notoriety the land had gained as temple land dies hard andcontinues to be used by all mid sundry.
I do not, therefore, think that the mere description of the land inlanguage suggesting that it belongs to the Chithamparam Temple in thedeeds relating to the lands adjoining the disputed land can be regardedas legal proof of the title of the temple to the land. While a descriptionof a parcel of land in the deeds relating to the adjoining properties mayfurnish corroboration of title, I do not think that those descriptions bythemselves are entitled to weight as though they constituted directevidence of legal title. The result is that the right of the third partyunder whom the first defendant claims to have possessed the land hasnot been established nor the fact that the first defendant did in facthold under the third defendant.
The first defendant has therefore failed to substantiate his defence,while the plaintiff’s case is amply supported by the evidenoe led in theseproceedings.
The judgment of the learned District Judge is therefore affirmed andthe appeal is dismissed with costs.
Pclle J.—I agree.
Appeal dismissed.