033-NLR-NLR-V-17-SILVA-v.-KINDERSLEY.pdf
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Present: Wood Benton A.C.J. and Pereira J.
SILVA v. KINDERSLEY.
90—D. C. Kurunegala, 4,666.
Register of temple lands—How far binding o»s Crown—Proceeding underWaste LandsOrdinance—Surveysprepared' by Government
surveyors—Burden of proof that lands as depicted in surveys werenot included within the boundaries given in the register—OrdinanceNo. 12 of 1840, s. 6—Presumption—Land in Kandyan Provinces.
A register of temple lands prepared under the provisions of “TheTemple Lands Registration Ordinance, 1866,” is binding on theCrown in all questions touching the boundaries and extents of theseveral lands claimed by the temple concerned, and no assumptionof a mistake in the register can be permitted.
Where in a proceeding under the Waste Lands Ordinance anumber of surveys prepared by officers of Government were' produced by the Crown as evidence of the fact that the lands inclaim were not included in a certain register of temple landsunder " The Temple Lands Registration Ordinance, 1866,”—
Held that, inasmuch as matters in connection with the surveyswere especially within the knowledge of the Crown, the burden layon it to establish that the lands in claim as depicted in those surveyswere not included within the boundaries given in the register.
The presumption under section 6 of Ordinance No. 12 of. 1810,so far as it concerns chena .lands in the Kandyan Provinces, doesnot apply to such lands in respect of which sannases and grants' were never issued, and taxes, dues, or services were never paid orrendered.
HE facts are set out in the judgment.
A. St. V. Jayewardene, for the third plaintiff, appellant.
Garvin, Acting 8. G., and V. M, Fernando, G.C., for the defendant,respondent.
Cur. adv. vult.
October 3, 1913. Pereira J.—
This is a case under the Waste Lands Ordinance. The referencerelates to eight allotments of land marked 1, 55, 9, 21, 35, 30, 34,and 49 in preliminary plan No. 556 (D 9). The present contest isbetween the third plaintiff as trustee of the Buddhist temple atKandy known as the Dalada Mabgawa on the one side, and the
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( no )1918. Government Agent hs representing the Crown on the other. TheYbkeira j. question for decision is whether the allotments of land referred
to above are among the lands mentioned in the register prepared
Kindwiey ^ terms of section 21 of the Temple Lands Registration Ordinance,1856, by the Commissioners appointed under the Ordinance. Theextract 3 P 13 filed of record has been taken from this register.
I may mention that it was a question in the Court below whetherthe document from which 3 P 13 had been extracted was in facta register made under section 21 of the Ordinance. The DistrictJudge held that it was so. The third plaintiff acquiesced inthis ^decision, and the respondent's attitude has always been inaccordance with it.
Now, subject to what I shall say later on the subject of prescriptivepossession and of the presumption under section 6 of OrdinanceNo. 12 of 1840, the whole question in the case appears to me toresolve itself into this: Whether the lands declared to belong toihe „Dalada Maligawa in the register under the Temple LandsRegistration Ordinance, 1856, have been correctly defined in theplans filed, and set aside as lands not belonging to the Crown? Asobserved by the District Judge,, the register is, under section 8 ofthe Ordinance, binding on the Crown in all questions touching the" boundaries or extent of any lands whatever claimed by thetemple." It therefore appears to me to be of primary importancethat the lands allowed to .the temple in the register should becorrectly defined. Now, Mr. Davis, the Crown witness, enumeratesthe boundaries of the lands of the temple> as given in the register,produces plan D 6, and says: “ This plan follows that limitclosely, ’’ but he admits in cross-examination that in the plan theMaligawa land does not come down to the limit of KudagamanaGamma as shown in the survey of 1899, and adds that it is not- far from it.
The District Judge explains this fact by assuming that there isa mistake in the description of the boundaries in the register bythe Commissioner under the Temple Lands Registration Ordinance,and on that footing, and as it seems to me on that footingalone, decides the fourth, fifth, and sixth issues in favour of theCrown. He does not accept the theory, and, indeed, there isnothing to support it, that the limit of Kudagamana has shifted.In view of decisive words used in section 8 of the Ordinance,
I do not think that it was open to the District Judge to assumetha.t there was a mistake in the register. The words are: “ andafter the said boundaries shall be ascertained, determined, set out,and fixed,* the same shall, and are hereby declared to be, .theboundaries of such lands respectively so far as regards anyquestion between such temples and His Majesty’s Government -touching the boundaries or extents of any lands what-
soever claimed by any such temples." I think that the case
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snonld go back {or evidence of what, in strict accordancewith the temple lands register referred to above, would be thelands declared to belong to the Dalada Maligawa, and for a decisionon the question whether the Hands now claimed by the Grown orany portions of them are included within the boundaries given inthe register, mid for judgment accordingly thereafter. As facts inconnection with the different surveys produced are especiallywithin the knowledge of the defence, and as the land described inthe register is admittedly the property of the Dalada Maligawa, Ithink it is for the defence to establish, in the first instance, that' thelands now in claim are not included within the boundaries given inthe register (secton 106 of the Evidence Ordinance).
As regards prescriptive possession, it is clem that if title to thelands in dispute in the Dalada Maligawa is once established, thequestion whether it has had prescriptive possession of the lands isimmaterial for the purposes of its claim.
As to the presumption under section 6 of Ordinance No. 12 of1840, it is, of course, a presumption (so far as it relates to forest,waste, unoccupied, or uncultivated lands) that may be displaced byproof of title, and here the third plaintiff, on behalf of the DaladaMaligawa, claims title based on the register referred to above.
So far as the presumption concerns chena lands in the KandyanProvinces, I do not think it can apply to such lands in respect of.which as a matter of custom or practice sannases and grants werenever issued, and no taxes, dues, or services were ever paid orrendered. It is in evidence that for lands granted by the oldKandyan Kings to the Dalada Maligawa no sannases were everissued, and, of course, in respect of such lands, as in respect of templelands generally, there was no liability on the part of anybody torender any services, nor were any taxes or dues payable. As regardschena lands in the Kandyan Provinces, the only means providedin the Ordinance to save them from the operation of the presumptionis the proof of a saunas or grant or of the payment of taxes, &c., andit would be absurd to suppose, that the presumption was intendedto apply to lands in respect of which proof of the only meansprovided for its rebuttal was an impossibility. The Ordinance wasnot intended to vest absolutely in the Grown all chena lands in theKandyan Provinces belonging to temples.
I would set aside the judgment appealed’ from, and remit the caseto the Court below for the purpose indicated above. I think thatall costs should be costs in the cause*
Wood Benton A.C.J.—
I agree to the order proposed by my brother Pereira.
1918.
FmniA}.
Silva v.Kinderslty
Sent back.