030-NLR-NLR-V-28-RATWATTE-BASNAIKE-NILAME-v.-DE-SILVA-et-al.pdf
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im
Present: Branch C-.-J. and Akbar A.J.
BATWATTE BASNAIKE NILAME w. DE SILVA ct al.
179—7). C. Kcgalla, 5,089.
Action for declaration of title to bandara land—Burden of proof—Probative value of extent entered in Service Tenures Register—Ordinance No. 4 of 1870.
In an action by the liusn&ike Nilame of u temple for a decl&ni •tion that a portion of a land, in a DewMagamo, in the possessionof a paraveni nilakaraya was the absolute property of the temple,—Held, that the burden was on the plaintiff to .prove that !)*(*■land was muttcln.
Held further, that the extent assigned In a paugn in the Service*Tenures Bfegister was not conclusive on u question relating to tin*area of the pangu.
PPEAL from a judgment of the District -Judge of Kegalla.
Iiayley (with Navaratnam), for added defendant, appellant.
H. V. Perora, for plaintiff, respondent.
December 21, J92o. Akdar A.J.—
The plaintiff in this action, who is the Basnaike Nilame of tin*Mahadewala temple of Kandy, claims that the temple be declaredentitled to three lots of land marked as lots A, B, and C in plan Pofiled in the action and for ejectment of the added defendant anddamages.
The added defendant, on the other hand, asserts that these lotsare part of the paraveni land called Illuktennehena, to which beclaims title on deeds produced by him, and in the alternative claimscompensation for improvements effected by him in case it is held thathe is not entitled to these lots.
The District Judge has in his judgment decreed that plaintiffbe declared entitled as trustee to lots A and B, and he has allottedlot C to the added defendant.
■ In the view that I have taken of this case I need only mention tin*first two issues tried by the District Judge. They were as follows: —
Is the whole of the village of Galpatha a Dewalagama ?
Are the portions in dispute (lots A, B, and C) muttetu alia*
bandara lands or are they paraveni lands ?
At the very beginning of the trial it was admitted by Counsel forthe added defendant that the portion of the Galpatha villagedepicted in plan PI (of which plan PS is an enlarged copy) was n
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Dewalagama and that the Dewala was the overlord. So that theonly issue which is at all material for the puiposes of this appeal isthe second issue.
Now, this case had come up in appeal once before, and De SampayoJ, in sending back the case for a new trial clearly stated that thejilnp Pi proved nothing, and that the burden of proving the titleof the temple was on the plaintiff. The admission by the addeddefendant', that the portion of the Galpatha village depicted inplan Pi and therefore that lots A, B, and C in plan P3 were aDewalagama and that the Dewala was the overlord does notdisplace the burden of proof, and therefore does not carry the easeany further so far as the plaintiff’s claim is concerned. I say sofor this reason. A Dewalagama area, as De Sampayo J. himselfindicated in his judgment referred to above, may well includeparaveni tenants’ holdings as well as mvMetu. or bandara lands.
The admission of the added defendant only amounts to anadmission that the lots in question are either bandara landsor paraveni lands. The added defendant is now in possession, andthe plaintiff himself has put his claim on the footing that theselots are bandara lands; and further, it is admitted that if theselots are paraveni lots, the plaintiff cannot succeed in this case.That being so, it seems to me that the burden of proof can only shift,to the added defendant to prove his title as paraveni tenant on hisdeeds, when and only when the plaintiff has proved the furtherfact that the lots in question are bandara lands. The SupremeCourt came to a similar conclusion in an old case reported in Volume2 of Percra’g Collection of Kandyan Law Cases, p. 313. TheDistrict Judge, if one may judge from his judgment, appears tohave thought otherwise,' for his judgment is concerned mainlywith an examination of the question whether the added defendanthas proved his title to the lots in question; and he lias assumedthat if the added defendant fails to prove his title then judgmentshould be given in favour of the plaintiff.
Counsel for the respondent ingeniously argues on this part ofthe case that lie has led sufficient evidence apart from the admissionof'the added defendant to shift the burden of proof from plaintiff’sshouldere. But has he? The evidence of the temple vidane isvery meagre, and he appeal's to be speaking of an event that tookplace when he was a boy ten years old. His readiness so glibly totestify to an episode of his childhood assumes a sinister aspectwhen we take into account the insinuation that is made againsthim by the defence. Then there is the evidence of the extentbought by the added defendant, which has’ been stressed by theDistrict Judge. It is true that according to the Service TenuresRegister (P2) the land called Illuktennehena, which added defend-ant says includes lots A, B, and C, is stated to be one amunam
1986;
Akbab. A.J.
RalwatteBasnaikeNilmne t>. deSilva
( 198 )
1988.
Akuau A.J.
HatwaMeJirumaikcyifame v. dafittva-
and 2 pelas paddy sowing extent, which is equivalent to 7$acres in English measure. It is, therefore, argued that addeddefendant’s claim, which comprehends an extent of nearly 25 acres,cannot possibly include the lots A, B, and C.
But section 10 of Ordinance No. 4 of 1870 nowhere says that theentry is conclusive evidence, or even of any probative value, so faras the extent of the pangu is concerned. To show how uncertainthis measure of amuuams and pelas is, I need only quote an examplefrom this very case. It is admitted by the plaintiff himself thatadded defendant is entitled to lot D in P8, which is shown asnearly 11 acres, whereas according to P2 it should be no morethan acres. Further, the District Judge has allotted lot Calso to the added defendant as part of Illukteunehena, whichbrings the acreage u) to nearly 18 acres. I have mentioned thisexample to show that where the law omit-s deliberately to statethat the register is to be evidence of the extent of a pangu, it did sobecause it was recognized that the extent stated in the register wasuncertain, and that it was not- calculated on a proper survey, buton mere vague conjectures of the parties concerned.
There is a further point that the added defendant's earliestdeed D5 gives the eastern boundary as the Galatula of Bandara-liena, and that in the later deed D8 this selfsame easternboundary is given as the rubber estate and Udumahagalenda.It is argued that these two facts show that- the added defendant’sclaim has been exaggerated purposely to include a larger areasince the date of the earlier deed. This argument, however, makestwo assumptions: first, that this rubber estate, which is shown asDunedin estate in D1 and D2, was a rubber estate in 1908, thedate of D5; and secondly, that Illuktennehena in P2 was lot D andnot lot B, which is the very point which has to be decided in thiscase, for it may well be that Dunedin estate itself was unplantedin 1908, and that that portion of it at the spot where it toucheslot B was regarded as bavdara lands at the time. The DistrictJudge has, as. 1 have stated, reversed the proper order on thequestion of burden of proof, but as he makes a point of discussingthe position of certain rocks in plan P3, I think I must state thfetit seems to me to be highly unsafe to assume as the District Judgelias done in this case, without verification by observations on thespot, that the rocks mentioned in added defendant’s deeds areor are not identical with those in P3, merely from their names.One example will, I think, be ample to show why I think this lineof reasoning is bound to lead to serious difficulties. The templevidane says that a portion of Illuktenne forms the northernboundary of Navgalla rock. The northern boundary of Navgollarock as shown in P3 appears to be lot- B. If so, lot B must be apart of Illuktennehena.
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To sum up my conclusions, the burden of proof was on theplaintiff to prove his title to lots A, B, and C, and he has failed todischarge this burden. The evidence that he has led is of the mostflimsy character, and at the end of his case there was really no casefor the added defendant to meet. Even if we take the latter’sdeeds into consideration as admissions against himself, owingto the uncertainty of the Sinhalese, measure of extent and thepositions and names of rocks shown as boundaries, it seems to beunsafe to hold that the mere production of these deeds by theadded defendant has the effect of shifting the onus to him to provehis title.
I would allow the appeal, and dismiss the plaintiff's action withcosts in both Courts.
Branch C.J. concurred in a separate judgment.
1929.
Aici>.Mi A.J.
JtatwatteBamaikeNilame-1>. tieSifxtt
Appeal dUrnved.