059-NLR-NLR-V-20-SOBITA-UNNANSE-v.-PERIS-APPU.pdf
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Present ; De Sampayo J.
SOBITA UNNANSE v. PEEIS APPU.
365—G. B. Batnapura, 14,986.
Action in respect of roads or road reservations—Can the Chairman ofa Provincial Road Committee represent the Crown?
The Chairman of theProvincial BoadCommitteeorofthe
District Boad Committee has no authority to appear in Court onbehalf of the Crown , orto sue even inrespect ofroads. Itis
the Attorney-General whoshould representthe Crowninjudicial
proceedings, and it isthe ProvincialBoad Committeeorthe
District Boad Committee themselves that, under section 12 of theThoroughfares Ordinance, 1861, have the power to sue in respectof certain matters though it is doubtful whether even they can sueto vindicate title to land alleged to be road reservations.
T
HE facts are set out in the judgment. In this action theplaintiff-appellant sued the defendant-respondent for ded-
ration of title to the land called Ambalamehenaindikadagawaira-walla, of 3 acres extent, together with the house standing thereon.
1917.
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*"'* The defendant did not file answer. But the intervenient, theSobita Unnanse Chairman of the Provincial Boad Committee, claimed the land inv. Peria Appu dispute as the property of the Crown, and further stated that thehouse standing on this disputed land stood on the road reservation,which was vested in the District and Provincial Boad Committees.
The learned Commissioner of Bequests (P. D. Penes, Esq.) heldas follows on the point relevant to this report: —
The plaintiff and his witnesses , admit thatthe housestandswithin
three fathoms of both the minorandGansabhawaroads,at the junction
ofwhich the house and thatportion of theland onwhich the house
stands,and which Iunderstood theChairman,Provincial BoadCom-
mittee, as the intervenient, claims as property in charge of the ProvincialBoad Committee,thatportion oftheland coming withinthe meaning
of a road ” as defined in section 2 (d) of Ordinance No. 23 of 1910.A space of 33 feetfrom the middle of the minorroad underthis provision
oflaw falls within the meaningofthe word “road. ”The minor road
isindisputably in charge oftheProvincialBoadCommittee. It
follows, therefore,thatthe spaceof33 feet from themiddle of the
minor roads, the Gansabhawa road, too, being a minor road, is vestedin that Committee.No ’ evidence is required toprove thatminorroads,
thoughvestedin theProvincial BoadCommitteesformanagement and
controlunder the provisionsof the OrdinanceNo. 10 of1861, arethe
propertyof theCrown. The plaintiffhas endeavouredto provepre-
scriptive title to the land, but in the circumstances that the bit of landclaimedby theintervenient is propertyvested intheProvincialBoad
Committee, and assuchCrown, hispossession must coverathird of a
century.Admittedly he has endeavoured toprove hispossessionas
from the date of the informal document P 2, viz., May 16, 1900. Thisperiod falls short of the requirement. On the fourth tissue, therefore,
I hold that the plaintiff hasnot acquired aprescriptivetitle, andon
the fith issue I hold in the affirmative. Although the plaintiff andhis witnesses statedin the evidence that the two roads arewithinthree
fathoms of the house, the evidence of the Batemahatmaya is that thehouse borders the two roads, with hardly space between for drains.This shows clearlythatthe houseandthe land claimedbythe inter-venientis within Crown “road. ” I therefore dismissthe plaintiff's
action in so much as it refers to the land claimed by the intervenient asbelonging to the roads described above, and the house thereon built andin the occupation of the defendant, with the costs of the intervenient.
The plaintiff appealed.
B. L. Pereira, for plaintiff, appellant.
Bartholomeusz (with him P. M. Jayawardene),. for intervenientrespondent.
December 21, 1917. De Sampayo J.—
The plaintiff alleged that the defendant had taken on rent fromhim a certain house and premises, and sued for arrears of rent andejectment. The defendant was in default, and judgment shouldhave gone for the plaintiff in the usual way, but none has yet been
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entered, and the whole matter has been lost sight of on accountof an extraordinary intervention. The Chairman of the ProvincialBoad Committee and District Boad Committee, Batnapura, wasallowed to intervene and contest the plaintiff’s right to the land andthe house. In the answer filed by him he stated that the housein dispute stood on the road reservation, which was alleged to bevested in the Provincial and District Boad Committees. It appearsthat there is on one portion of the land a District Boad Committeebungalow, but the plaintiff in his plaint expressly excluded it fromhis claim. Before the trial commenced the Commissioner recordedthat the intervenient did not claim the land outside that bungalowand premises, although he said that the rest of the land also wasthe property of the Crown. This appears to me to put the inter-venient out of Court at once. But an issue was stated as follows:“ Is the land in dispute the property of the Crown in charge ofthe District Boad Committee? ” Thereupon the plaintiff’s proctorsuggested an issue as to whether the Chairman could intervene onbehalf of the Crown. The Commissioner refused to allow this issue,though it is obvious that it went to the root of the whole interventionand should have been considered. The fact is that the interventionis wholly out of place, and should never have been allowed. TheChairman of the Provincial Boad Committee or of the District BoadCommittee has no authority to appear in Court on behalf of theCrown, or to sue even in respect of roads. It is the Attorney-Generalwho should represent the Crown in judicial proceedings, and it isthe Provincial Boad Committee or the District Boad Committeethemselves that, under section 12 of the Thoroughfares Ordinance,1861, have the power to sue in respect of certain matters, though Idoubt whether even they can sue to vindicate title to land allegedto be road reservations. I need not for the purpose of this appealenter into the question whether, as argued on behalf of the inter-venient, the definition of “ road in section 4 (d) of the Ordinancehad any relevancy. The whole cash appears to me to have goneawry. The Commissioner dismissed the plaiptiff’s action “in somuch as it refers to the land claimed by the intervenient as belongingto the roads described above and the house thereon built by andin the occupation of the defendant,’’ but there is no order on theplaintiff’s claim so far as the defendant is concerned. This judgmentcannot stand.
I set aside the judgment appealed from, and direct that judgmentbe entered for the plaintiff against the defendant as prayed for, withcosts, but without prejudice to any claim of the Crown or of theProvincial and District Boad Committees to the land in question,or to any right of action in respect thereof. The intervenient shouldpay the costs of the proceedings in the Court of Bequests since thedate of the intervention, and also the costs of this appeal.
Set aside.
1917.
Da SampayoJ.
Sobiia
Unnansev. PenAppu
23