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Pretent : De Sampayo J.
SOTSA v. PODI SINNO et al.
614-616—P. G. Batnapura, 11,841.
Forest Ordinance, No. 16 of 1907—Felling Umber without a permit—Criminalproceedings—Bonafide claim ofright—Liabilityof
Where two coolies and the superintendent of an estate werecharged under the Forest Ordinance with felling timber fromCrown land without a permit, the proprietor of the estate claimedthe land on a title dating from 1837—
Held, that as the claim of title was a bona fide one, the prosecutionunder the Forest Ordinance was not proper.
^HE facts appear from the judgment.
Bawa, K.C. (with him Abdul Gader), for accused, appellants.—The first and the second accused were only coolies acting under theorders of the superintendent. They were under the bona fidebelief that they were felling their master’s timber: The thirdaccused is the superintendent. The proprietor Usoof has not beencharged. Usoof claims the land on an ancient and valid title, andhis claim must be regarded as bona fide. The Crown cannot proceedcriminally under the Forest Ordinance when there is. a bone fideclaim of title. The Assistant Government Agent, Kegalla v. Siya-doris Mudalali;1 P. G. Batnapura, 9,701 2 Cumberland v. vDewardk-kita Unnanse; 3 Pahalaganhaya v. Andiris,; 4 Chena Muhandiram v.Bawapper; s Silva v. Banda;6 Ghena Muhandiram v. Banda. 7
Dias, G.G., for the Crown.—If the lands are chena lands, theaccused has no defence. Chenas in the Kandyan Provinces can beacquired only by a sannas, grant, or by proof of customary taxeshaving been paid. Usoof’s deed conveys to him certain chenas,but contains no recital of any sannas by which it devolved on him.The accused have felled high forest, when the deed gave them onlychenas.
Cur. adv. vult.
October 17, 1919. De Sampayo J.—
This is a prosecution for felling timber without a permit on aland alleged to belong to the Crown. The land is shown as lotNo. 4 in the plan No. 366 made by C. M. Vanderstraaten,Surveyor,
1 (1916) 3 O. W. B. 53.4 3 Bed. Notes 62.
»S. C. M. Aug. 30, 1918.5 (1914) 17 N. L. B.225.
* (1916) 3 C. W. B. 102.* (1914) 17 N. L. B.227.
' (1914) 17 N. L. B. 228.
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and consists of about 5 acres. It has been identified as part of theblock of land bearing No. 122 in the Crown plan B. S. P. P. 16,which was made in 1897 and 1914, respectively. The Crown callsthe entire block Batugedarakandamukalana, and the witnesses forthe prosecution say that lot No. 4 in question was in fact highforest. There is no doubt that a large number of trees were felledin this lot in the process of clearing it for planting as part of Kotan-dola estate. The proceedings in the case are somewhat peculiar.The Forest Ranger of Pelmadulla charged the first and secondaccused, Podi Sinno and G-irigoris, with the felling of the timber.They stated that they were only coolies employed by MohamadoLebbe Marikar Slema Lebbe, the superintendent of Kotandolaestate. This undoubtedly was the fact. The Magistrate accord-ingly ordered that Slema Lebbe and the proprietor of the estateshould be added as accused. Slema Lebbe was then added asthird accused, and was charged with having felled the timber ;but the proprietor of the estate was not so added, and is not anaccused person. Slema Lebbe’s defence was that lot No. 4 wasprivate property, and was part of Kotandola estate, of which hismaster W. M. Mohamadu Usoof, of Colombo, was the proprietor.It appears that the estate as claimed consists of lots Nos. 1 to 7 shownin the plan, and is over 100 acres in extent, which has been opened,and is being gradually planted. The greater portion of it is plantedwith rubber about 1£ years old. Lot No. 4 was being cleared forplanting, when this prosecution was started. Mohamadu Usoof wascalled as a witness, and he produced his deed and claimed all thelots. He admitted that the clearing was done on his orders, andin these circumstances ; when the owner of the estate is found tohave authorized the first and second accused to fell the timber, itis difficult to hold the first and second accused guilty of the offence,inasmuch as they acted quite bona fide in the belief that lotNo. 4 was their master’s property. The same remark applies toSlema Lebbe, the third accused. At all events, any bona fide 'claimof title on the part of Mohamadu Usoof ought to benefit them. Asregards that question, there is, I think, very little doubt. Hisdeed discloses a very ancient title. The late Doloswala Dissawa, aKandyan Chief, who died in 1839 possessed of many nindagamasand other extensive and numerous lands, made his last will in 1837,by which he devised “ Vitanegey Panguwa ” to his grandson andadopted son Muttettuwegama Loku Banda. The will was provedin case No. 15, D.- C. Ratnapura. The devisee died intestate,leaving as heir his brother M. Kiri Bandara, who in turn diedintestate, leaving two sons Madduma Bandara and Punchi Bandara.These two divided Vitanagey Panguwa into two portions, as shownin the plan made by C. D. Subasinghe, Surveyor, the southernportion being assigned to Madduma Bandara, who in 1917 sold thesame to Mohamadu Usoof by deed No. 3, which was confirmed by
Soyno v.Pod* Sinno
Soysa v.Podi Sinno
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Punchi Bandara by his deed No. 12. To this latter deed is attachedMr. Subasingha’s survey. The southern portion of Vitanagey Pan-guwa is identical with lots Nos. 1 to 7 in Mr. Vanderstraaten’s plan.The panguwa appears to have consisted of several chenas, andPunchi Bandara, in giving evidence in this case, said: “ My brotherand 1 claim only chena lands, and no mukalana or forest. ” Thisstatement is seized upon by the Police Magistrate, and as thedocuments relating to Mohamadu Usoof speak of chenas, the PoliceMagistrate says that Mohamadu Usoof’s deed did not transfer tohim lot No. 4, which is high forest. This inference is not legallycorrect. In the first place, the deed, as a matter of fact, conveyedlot No. 4 to Mohamadu Usoof, whether it be called mukalana orchena. In the next place, a period of seventy years has elapsddsince the time of Doloswala Dissawa’s death, and it is no matter forsurprise if lands, which were then, and continued to be, calledchenas, have grown into forest. In my opinion the question asbetween the Crown and Mohamadu Usoof must be decided onother grounds. The name “ panguwa ” indicates to me that thelands were probably part of a nindagama, and if so, they must bethe subject of a Kandyan grant. Again, of the lots in question,lot No 1, which is called Weevehena alias Kotaligam Weevehena,is not claimed by the Crown, and is admitted to be part of Kotandolaestate, and yet it is included in the Crown plan. Some of the otherlots contain 1% years .old rubber, and have been in the possessionof Mohamadu Usoof. In these circumstances, I think MohamaduUsoof had good grounds for believing that he was entitled to lotNo. 4, and his claim of right must be regarded as quite bona fide.A criminal prosecution such as this is wholly unsuitable for deter-mining the question of title. This will appear obvious from onecircumstance alone. Mohamadu Usoof is not an accused in thiscase, nor in any sense a party to the proceedings. He was only awitness, and as such could not be expected to go fully into hisclaim as though he were a party. All this shows that the questionbetween the Crown and Mohamadu Usoof, proprietor of Kotandolaestate, should properly be fought out in a civil action. As regardsthe conviction in this case, though a person acting on the orders ofanother may not generally be free from liability for breach of therule, I think the accused have shown sufficient ground for exemption.
The conviction is set aside.
SOYSA v. PODI SINNO et al