044-NLR-NLR-V-05-RATWATTE-v.-POLAMBEGODA.pdf
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EATWATTE o. POLAMBEUODA.
O.K., Kandy. 8,760.
Service Tenures Ordinance, No. 4 of 1870, s. 25—Nindagama land—Servicestherefor—Assessment- of damages.
Where A. the owner of a ilimlagama. .-noil jointly ami severally fourpersona as holders of a pangti thereof for damages consequent upontheir failure to perform certain services due to him,—
Held, per Lawbib, A.C.J.—That the owner of a Kandyan nindagamacould not summon his tenants to attend him wherever he might be, forexample, at Colombo or some other place distant from his iralawwa; that,though it was competent to the plaintiff to sue the milakaragas jointlyand severally, yet it was unreasonable to expect them, especially in thecase of females, to perform personally such services as the carrying ofarms and fans to Kandy, the running errands on orders. Ac., to theplaintiff,, who, being a clerk in the Fiscal's service, appeared to haveacquired title to the nindagama by purchase; that it was his duty toprove by an extract from the Service Tenures Register the amount forwhich the services were commotable; and that, in the absence of suchproof, the plaintiff was entitled to nominal damages only.
P
LAINTIFF, alleging himself to be the owner of the Katugahanindagama in Four Korales, Kegalla, and to be resident in
Mahaiyawa in Kandy, sued four persons on the footing that theywere the holders of certain lands forming a portion of the saidnindagama; that as such mlaUarayas, who had not commutedtheir services in terms of section 14 of Ordinance No. 4 of 1870, theywere jointly and severally liable to pay to the plaintiff a sum 'ofEs. 3 every year, and to perform certain services, to wit, duringfifteen days in each month to accompany plaintiff on journeys-and to do and perform such work as he may order; and that byreason of their failure to pay him the said sum and perform the-said services for the year 1898, the plaintiff had suffered damages-in Es. 48. He prayed that the defendants be jointly and severallycondemned to pay to him the said sum.
The first and second defendants only answered. They pleadedthat the Court of Eequests of Kandy had no jurisdiction to hearthe case; that their liability was not joint and several; thatplaintiff did not demand their services; and that plaintiff hadnot suffered the damages claimed.
On the issue as to jurisdiction, it was contended that theplaintiff’s walawwa (residence) being in Kegalla he could not callion the defendants to go to Kandv. The Commissioner (Mr. W, H.IKinderslev) held '* The journey of the lord may commence any-" where. These services were created in order to enable the
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“ nilames to attend the king in proper state. I. therefore, hold“ that this .Court has jurisdiction to hear this case.
On the issue us to joint and several liability, the Commissionerheld in favour of the plaintiff, as follows:“ There may be many
" tenants on the pautju, but the performance by any tenant of the“ service demanded releases at once the others from their liability.“ In cases where some tenants hold high and some low land, all“ of varying productiveness, the difficulty of exactly apportioning“ among the tenants the precise fraction of a man which eachshould send is, T think, itself a strong reason to suspect that“ such a course was never intended. The pangn is the unit andcannot be subdivided, and it is for the tenants to arrange for the“ performance of the service and not for the lord to apportion it.“ I hold that the liability is joint- and several."
As regards the two other issues, the Commissioner found thatplaintiff did demand the services and money due. and that thedamages suffered by him amounted to TU. 36.66. He enteredjudgment for plaintiff accordingly.
Van Langenhiuy, for appellant.
Bawa, for respondent.
Our. adv. vult.
8th July. 1901. 1.AWRIE. A.C.J.—
This action is founded ou the 25th sectiou of the OrdinanceNo. 4 of 1870, which enacts that " It shall be lawful for any‘ ‘ .proprietor to recover damages in any competent Court against■' the holders of any paraveni paugu. who shall not have commuted" and who shall have failed to render the services defined in the" registry hereinbefore referred to.
" In assessing such damages it shall be competent for the Court" to award not only the sum for which the services shall have
’’ been assessedfor the purposes of perpetual commutation,
“ but such further sum as it shall consider fair and reasonable to" cover the actual damages sustained by the proprietor from the" default of the liilaliaraya to render such personal services at the“ time when they were due."
This, I think, contemplates that the plaintiff shall prove by anextract from the register what is the amount for which the■services may be perpetually commuted, and allege and prove inaddition any further damages due.
But here the plaintiff, for some reason, has omitted from thetranslation of the extract from the register the amount forwhich the services due by this pangii may be commuted: the
( 1*5 )Commissioner had not that important fact to guide him inassessing damages. The extract itself has not been produced,but only a translation, which is defective.
Plaintiff claimed Rs. 48 as damages for the non-perfonnance ofthe services. This sum is an extravagant demand to make fromthe owner of this small panguwa.
The pangu ought to furnish a man for half the year. Theservices were to carry arms and fans and to run errands on orders.This can be done by a boy. The tenants were not obliged to gobeyond the ancient kingdom of Kandy.
The plaintiff has given no account of the history of this ninda-gama. The owner at the time of the compilation of the registerwas Molligoda Ratemahatmava. I suppose that the presentplaintiff acquired the nindagama by purchase.
The primary (Obligation of the tenants was to attend at thewalawwa of the owner; it is not explained whether there was awalawwa at Katugaha, or whether the owner lived at Molligodaor at Leuke.
In the decision in another case of the same nature 1 held thatthe owner of a Kandyan nindagama could summon his tenantsto Kandy, and that if they failed to attend, the Kandy Court hadjurisdiction to determine the amount of damages, because it wasthe place where the failure to do service had occurred. I didnot mean to decide that a Kandyan landowner could summonhis tenants to attend him wherever he might he: he could notrequire their attendance in Colombo nor at some walawwa distantfrom the panguwa. It was because Kandy was the caput regni,tiie head seat of the Government, to which all men might besummoned, and to which, if summoned, they in the old dayswere obliged to go with a considerable number of tenants. Inthe older days it would not have been accounted a hardship forthe Katugaha tenants to attend T.euke Nilame in Kandy, and so 1think it not very unreasonable to require them to serve undertheir landlord in Kandy, even though the bank and not .the palacebe where he serves.
But this is clearly a case where it is unreasonable to expect orto call for personal service. The representative of Alupota Kalu-hami is now a clerk in the Fiscal’s office at Kurunegala. and inthe petition he calls himself John Polambegoda.
The second defendant is a woman, Kalu Menika, who could notperform this service, and whose duty it was to provide a substitute.As for the third and fourth defendants, who are low caste menliving in different villages, it is not explained how they cameto share • the pangu. In my opinion the demand on them to
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1001.
July 8.
Lawrib,
A.C.J.
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1901.July 8.
Lawbie,
A.d.j.
attend personally and run errands for the plaintiff every .monthin the year 1898, sometimes at Handy, sometimes at Leuke,sometimes at Hanguranketa, sometimes at Ratwatta, was absurdand oppressive.
1$ the plaintiff had furnished a correct extract of the register,I would have given him his damages, the amount appearing ascommutation and a little more. As it is, I think he is entitled onlyto nominal damages, which I assess at Rs. 7.50.
No costs in the Court below; plaintiff to pay the defendant’scosts in appeal.