118-NLR-NLR-V-23-PUNCHIAMMA-et-al.-v.-THEOBOLD.pdf
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Present; De Sampayo and Schneider JJ.PUNCH!AMMA et cd. v. THEOBOLD.
2—D. G. Kandy, 29,108.
Damage caused by sitting—Damage paid to ande cultivator—Action
to recover damage by owner—Legal position of node cultivator.
The first plaintiff, who was the owner, and the second plaintiff,who was usufructuary mortgagee of a field, sued the defendant fordamages caused to the field by silting The defendant pleadedpayment of damages to a poison who was ande cultivator under thesecond plaintiff.
Held, that the plaintiffs were entitled to claim damages.
“The ande cultivator is, after all, only a cultivator undera maniapossession. No doubt Ordinance No. 21 of 1887 legalized the andecultivation system without notarial documents being required, butthe possession of the cultivator was not improved so far as the lawis concerned. It is possible that Ukku Banda as cultivator may beentitled to some compensation for the crop which was standing atthe time of the damage, and if damages are given to the person underwhom he cultivated he could receive that compensation from him.'*
^JHHE facts appear from the judgment of the District Judge.
H. J. C. Pereira, R.C. (with him H. V. Perera), for defendant,appellant.
Soertsz (with him M. W. H. de Silva), for plaintiffs, respondents.
June 30,1922. Db Sampayo J.—
This is an action for damages oooasioned by 6ilting of a field bythe washing down of earth and silt from a higher land. Thefirst plaintiff is the owner of the field shown in the plan A made byMr. TrowelL The second plaintiff is usufructuary mortgagee of thefield under the first plaintiff. The defendant is the owner of anestate to the east of a stretch of fields. It appears that the defendantmade a new clearing in the year 1916, and in that connection madea certain alteration in the water-course, in which the rain water wasto flow down theslopeandinto the fields. It would appear that beforethe new clearing was made, the water found its way along the lineAB and then took an easterly direction along BB, E, and F whichplaintiffs called Pii&ella, but the defendant blocked the course, other*wise called Maladle, at the point B and cut a drain from B to 0, withthe result that the water, instead of going in a natural way along the
1922.
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*092*PitaeUa, had to take a more direct course and disgorge itself at point
Da sampa^o C. In the year 1010 when there were heavy rain*, the plaintiffs’field was badly silted up to a depth of between 1 and 1$ ft., and atPunchiamma same time the standing crop was damaged. One point whiche. ThecMd has been submitted to us strongly is that neither of the plaintiffs hasa right to claim any damage in respect of the silting. It appearsthat the second plaintiff has a usufructuary mortgage. Instead ofcultivating the land himself, he had given the field for ande cultiva-tion to one Ukku Banda who happens to be the husband of the fir&fcplaintiff, and the crop at the time of the damage had been raised byUkku Banda. It is contended, in these circumstances, that UkkuBanda was the only person in possession, and he could sue, if at all,for any damage done, but not the plaintiffs. It seems to me thatthere is some misconception about the possession of an ande culti-vator. He is after all only a cultivator under a man in possession.No doubt the Ordinance No. 21 of 1887 legalized the andecultivationsystem without notarial documents being required, but th e possessionof a cultivator was not improved so far as the law is concerned. Itis possible that Ukku Banda as cultivator may be entitled to somecompensation for the crop which was standing at the time of thedamage, but if damages are given to the person under whom hecultivated he could receive that compensation from him. Thedifficulty has arisen by an attempt on the part of the defendant tosatisfy the field owners who had suffered damage by the silting oftheir fields. It appears that he went round and saw the variousowners of the fields and paid them small sums as compensation forthe damage done, and, among others, he saw Ukku Banda, thehusband of the first plaintiff andcultivator under the secondplaintiff,and he appears to have paid Ukku Banda Bs. 32. It is argued inthose circumstances that full compensation had been paid to theright person by the defendant. I have already stated that in myopinion Ukku Banda was not the right person to receive compensa-tion for all the damage done and the plaintiffs as the owner; andusufructuary mortgagee may claim to be compensated, as UkkuBanda in no way represented them. The remaining question is asregards damages and tbesrelief to be granted to the plaintiffs. TheDistrict Judge has accepted the evidence of the Korala who esti-mated the crop of this field at 26 bushels, and stated the value of abushel to be Bs. 3. On that basis the District Judge was right inestimating the value of a crop at Bs. 60. In the actual decreeentered the District Judge ordered the defendant to remove the silt,and in default of doing so to pay damages at the rate of Bs. 60 percrop. So far the decree appears to me to be right, but the DistrictJudge, in ordering thedefendant to remove the silt, said that he wouldbe at liberty to bury the silt in the field itself. The plaintiffs objectto this part of the decree and has given a cross notice, and it isargued for than, and I think, reasonably, that burying the tilt m
the field will be a farther source of damage to the field, and such anorder should not have been included inthe decree* I think this isnot unfair. I therefore, while affirming the decree, would strike outthe portion which gives liberty to the defendant to bury the silt inthe field itself .
The appeal should otherwise be dismissed, with costs.
1988.
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SpHNTODHB J —I agree. *
Farted*