050-NLR-NLR-V-03-RATWATTA-v.-HABANA-et-al.pdf
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1898.
March 7.
RATWATTA v. HABANA et al.
C. R., Kandy, 4,743.
Kandyan Law—Nindagama—Liability of paraveni nilakarayas torender services to nindagama proprietor—Right of proprietor ofnindagama to exact services from paraveni nilakarayas regardinglands which do not form part of the nindagama—Personal servicesby paraveni nilakarayas.
The paraveni nilakarayas of a nindagama are not bound tocultivate fields which do not form part of the nindagama to whichthey are attached, but they are bound to render personal servicesto the proprietor of the nindagama whenever he gives them noticeof the time and place he requires their attendance.
Setnble, the use of palanquins being now obsolete, except amongthe priests, the obligation on the part of paraveni nilakarayas tocarry palanquins for the proprietor of a nindagama is not enforce-able by law.
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LAINTIFF, claiming as purchaser under a deed of transfer ofa nindagama, sued the defendants for the recovery of a sum
of Rs. 20 ‘50 alleged to be the commuted value of services due bythe defendants as paraveni nilakarayas of the nindagama, whichservices they failed to perform for 1895. These services werestated to be : “ Doing all work of cultivation from the time of“ ploughing to the time of storing in of the paddy; collecting“ straw; carrying proprietor’s palanquin and luggage when he is“ out on a journey ; during pinkamas and devil ceremonies doing
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all necessary work, while receiving food; pounding paddy;■“ taking a pingo worth a shilling to the proprietor for the new year■“ and a similar one for the old year; being present at the walawwa.“ The services to be within the Kandyan District only, and not to“ exceed fifteen days in a month, nor be more than eight days at a“ time.”
The first defendant filed answer denying that the bare executionof the deed of transfer passed the rights of the nindagama to thetransferree, that he ever was a paraveni nilakaraya of this ninda-gama, and that he is liable to render services to the plaintiff. Heclaimed the lands as his by purchase, and alleged that he hadpossessed them ever since, i.e., for eighteen years. He claimed thebenefit of section 24 of Ordinance No. 4 of 1870, under which, ifdo services were rendered for ten years, the right to such servicesor dues were lost for ever. He also claimed the benefit of the-Prescriptive Ordinance, No. 22 of 1871, section 3.
At the trial the following issues were framed :—
Is plaintiff proprietor of the nindagama ?
Is defendant a tenant ?
What damage has plaintiff sustained ?
The Commissioner (Mr. Kindersley) examined only the plaintiff,and then declined to proceed any further with the case in thefollowing terms:—
I decline to go any further into the case of plaintiff. Mr. R. W.Jonklaas objects. He has further witnesses to call, and has certifiedcopy of Mawanella Gansabhawa, No. 1,422, in which these samedefendants on 7th October, 1895, consented to pay Re. 1 • 50 for theservices of 1894, which were not performed. Mr. Jonklaas puts intranslation of Register A.
I hold it is obvious that if the nindagama confers right to exactservices, those services must be performed within the boundaries of thenindagama for which they are due. The iniquity of the idea of exactinga service to be performed any where in the Kandyan District where theplaintiff chooses to reside, which may be 50 miles or more from thenindagama, is absurd. No servitude could ever entail the hardship ofa journey of that nature, nor could any Court ever uphold such aservitude. If plaintiff reside on the walawwa of the nindagama inquestion instead of residing 17 miles from it, he might reasonablyclaim the tenant’s service. As it is he most certainly cannot do so,and I wonder at his impudence in attempting it. The alleged consentof accused to commute for 1894 for Re. 1'50 makes no difference tothis, whether true or false. It would only tend to show that plaintiffhas in this case, if he accepted that commutation, grossly exaggeratedthe value of the servitude.
I dismiss the action of plaintiff, condemning him to pay to defendantstheir costs of the action.
The plaintiff appealed.
Wendt, for plaintiff. The Commissioner was premature instopping the case at this early stage. Plaintiff was entitled to
1898.March 7.
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1898. lay his evidence before the Court to establish the issues raised.
March 1. . The view which the Commissioner took was a sentimental one.
It may be a hardship to the defendants to perform the servicesanywhere within the Kandyan District, but it was a greater hardship’that plaintiff should be defrauded of his just dues.
The nindagama proprietor can reside wherever he pleases, solong as it is within the limits. There are no muttettu fields orwalawwa appertaining to this nindagama, so that in the event ofa sale of the nindagama the walawwa is the residence of thepurchaser in the Kandyan District, and the muttettu fields are thefields in the neighbourhood of his residence.
Van Langenberg, for respondent. The services are due to theoverlord and not to the new proprietor (3 C. L. R. 17). The plaintiffadmittedly owns neither the walawwa nor the muttettu fields.He cannot therefore claim these services as due to him.
7th March, 1898. Lawbie, J.—
The appeal is dismissed. I vary the judgment as to costs. I findno costs due. The Commissioner stopped this trial prematurely.I assume that the plaintiff could have proved the affirmative ofthe first and second issues.
The next issue should have been whether the defendant had,when asked, failed to perform the services fixed by the ServiceTenures Commissioner as' due from the panguwa of which thedefendants are in possession. If so, whether damages are due.
The first service is to cultivate a field with paddy. This suggeststhe existence and the annual cultivation of a muttettu field. Iam of the opinion that these ninda tenants are not bound to cultivatea field which does not form part of the nindagama.
I oannot assent to the proposition that the plaintiff is entitledto require the defendant to cultivate a field at Mahaiyawa.
With regard to carrying the palanquin and luggage when theowner is on a journey, part of that seems to be obsolete. No onebut a priest is now carried in a palanquin. Luggage is still carried ;the landowner must give notice at what place and what time herequires the tenant’s attendance.
Binkamas and devil-dancing do not take place every day, andthe tenant is not in default if he does not receive notice to attend.
The remaining service is to attend the proprietor’s walawwa atthe old and new year. This, I think, the tenant should do at anywalawwa at which the landowner gives notice he will spend thenew year. I do not think it is unreasonable to require hisattendance at the owner’s usual place of residence. In the old
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days, when the great families spent much of their time in Kandyin attendance on the king, their tenants from distant villageswere bound to attend at the Kandy walawwa on the days fixedfor service. These tenants then are not bound to cultivate fieldsoutside the nindagama, but they are bound to do personal servicewithin the Kandyan Province for the plaintiff whenever he givesnotice of the time and place he requires their attendance.
1898.
March 7.
Lawbie, J-