045-NLR-NLR-V-48-THE-ATTONEY-GENERAL-Appellant-and-KRISHNAPILLAI-Respondent.pdf
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The Attorney-General v. Krishnapitlai.
1947Present: Howard C.J. and Wijeyewardene
THE ATTORNEY-GENERAL, Appellant, andKRISHNAPILLAI) Respondent.
122—D. C. Batticaloa, 206.
Crown Lands Encroachments Ordinance (Cap. 321), s. 7—Presumption under.
Where, in an action instituted by the Crown for declaration of titleto certain property, the Crown establishes the right to the presumptionarising under section 7 of the Crown Lands Encroachments Ordinancethe burden is on the defendant to rebut such presumption.
A PPEAL from a judgment of the District Judge of Batticaloa.
M.F. S. Pulle, C.C., for the plaintiff, appellant.
B. Wikramanayake (with him G. Thomas), for the defendant, res-pondent.
Cur. adv. vult.
WUEYEWARDENE J.—The Attorney-General v. Krishnapillai. 137
March 13, 1947. Wijeyewardene J.—
The Crown instituted this action asking for declaration of title to lots 2to 20 depicted in Preliminary Plan No. 749. These lots are situated inthe village of Malwattai and are of the extent of 113 acres and 9 perches.It was alleged in the plaint that the defendant entered upon, and tookpossession of those lots in March, 1942. The defendant filed answerdisputing the claim of the Crown. At the trial the defendant admittedthe title of the Crown to lots 11, 12, 17 and 18 of the extent of 1 acre and17 perches. The District Judge held that the defendant was entitled to“ such portions of lots 2 to 10, 13 to 16, 19 and 20 as fell within lotsZ 134 and A 135 in Preliminary Plan No. 378 ”. The lots Z 134 and A 135are of the extent of 61 acres, 2 roods, 24 perches and 23 acres, 2 roods, 12.perches respectively.
At the trial the Crown produced several documents and adduced theevidence of a number of witnesses with regard to the condition of theproperty at the time of the encroachment in 1942, in support of theclaim that the property should be presumed to be the property of theCrown under section 7 of the Crown Lands Encroachments Ordinance.The defence produced a series of documents dating from 1858 to showthat Z 134 and A 135 were treated as private lands and led oral evidenceto prove that those lots had been possessed as private lands for aboutforty years.
The District Judge was not impressed by the evidence of possessiongiven by the defendant and his witnesses, but he held in favour of thedefendant, as he thought (1) that the Crown had failed to show that itwas entitled to the presumption under section 7 of the Crown LandsEncroachments Ordinance (2) that the defendant’s deeds dealt withAvaranai Kulam and some part of Urpiddy and (3) that Mr. AbdulMajeed, the witness for the Crown, admitted that the Western portionof Avaranai Kulam showed signs of paddy cultivation in 1920.
I shall consider first the documentary evidence of the Crown. Asurvey of lands in Malwattai and adjoining villages was made by CrownSurveyors in 1867 for the Preliminary Plan No. 378. The tenement listP3 made in connection with that survey describes Z 134 as AvaranaKulam and A 135 as Malevilli. According to that description, Z 134was a tank and A 135, an open stretch of land. An extract, P5, fromField Book 8410 of a Crown Survey made in 1889 shows Z 134 describedas “ Avaran Kulam Crown Tank ”. Z 134 and A 135 appear as Crownlands in P4, the register of Crown lands, kept at the local Kachcheri forpurposes of reference.
The oral evidence called by the Crown was briefly as follows: —
Mr. K. Iyaru, the Assistant Superintendent of Surveys, said thathe was in the locality from February to November, 1938, ashe was then in charge of the Engineering Survey which coveredAvarana Kulam also. During that period he visited the tank“ very frequently ”. The bund was “ in existence ” then,though the tank was not “ in working order ”. The tankshowed “ no signs of any previous cultivation ” and the rest
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WUEYEWARDENE J.—The Attorney-General v. Krishnapillai.
of the disputed property was in jungle which he estimatedto be nearly 100 years old. He inspected the property againin 1943 in connection with the Preliminary Plan No. A 749made for the purposes of this case. He found the bund “inexistence” as before, but some lots which were uncultivatedin 1938, had been cultivated subsequently as stated inthe Tenement List P3 of 1943. According to P3 lots 7 and8 were “ paddy fields one to two years old ” and lot 15,
“ an abandoned paddy field about four years old ”.
Mr. Abdul Majeed, a retired Government Servant, was Cultivation
Officer from 1927 to 1932 and Vanniah from 1936 to 1943 of thedivision where this property is situated. During those periodshe visited the lands 4 or 5 times a year. Earlier he was workingas a Surveyor in this area in 1919 and 1920. He said thatseveral people got their fields irrigated by Avarana Kulambefore the Pattipalai Aru Irrigation Scheme came into operationabout forty-five years ago and that it was regarded as a Govern-ment tank by the people of the division. In more recenttimes there was no water in the tank during the dry season,but the bund was still “ in existence ”, though it had beenbreached in some places. The tank was not cultivated duringthe time he knew it, and it was “ surrounded ” by jungle.
1 may add that the learned District Judge has interpreted wrongly theevidence of this witness, “ there were (in 1920) traces of ridges of paddyfields on the Western side of the tank, i.e., between the tank and thejungle ” to mean that a Western portion of the tank showed signs ofcultivation.
Mr. Tambanadapillai. the retired Udayar, said that he knew the
property for twenty or twenty-five years and the tank was notcultivated during that time. When he knew the property first,the jungle round the tank was thirty to forty years old.
I think that the documents produced by the Crown and the evidenceof the Crown witnesses establish the right of the Crown to the presump-tion under the Crown Lands Encroachment Ordinance. The DistrictJudge has laid too much stress on the fact that at the time of the CrownSurvey “ some claim ” seems to have been made to the Surveyor by aprivate person in respect of Z 134 and A 135. The fact that such aclaim was made to a Crown Surveyor cannot be regarded by itself asan act requiring the Crown to take action under the Crown LandsEncroachment Ordinance.
I shall deal now with the defence. According to the defendant’sclaim of title, Somanader Mudaliyar who claimed to hold a Fiscal’sreceipt of 1830 transferred by D4 of 1858 to Nallatamby and Sinne-tamby a land known as Nendilapallavely or Avuranaipallavely lyingwithin certain boundaries and 280 fathoms long and 190 fathoms broad,“together with the Avaranai Kulam and Urpiddy that belongs to thisvely”. Neither the Fiscal’s receipt nor the original of D4 has beenproduced. The document marked D4 is a certified copy obtained fromthe Land Registry in 1943. It may be noted at this stage that the
WUEYEWARDENE J.—The Attorney-General v. Krishnapillai. 139
extent as given in D4 will be about 44 acres. By deed D5 of 1872Nallatamby transferred to Mohamed Ali his undivided half share ofNendilapallavelly alias Avuranaipallavely, 280 fathoms by 190 fathoms,“ together with the Avaranai Kulam and Urpiddy Mohamed Aliretransferred his interest to Nallatamby by D6 of 1874. After Nalla-tamby’s death his daughter Kanagammai and her husband ManikapodyVanniah Sinnathurai got the shares of the widow and the other childrenof Nallatamby by deed of gift D7 of 1896. That deed refers to Nendila-pallevely alias Avuranaipallavely, “ together with the Avaranai Kulambelonging to it ”.
Sinnetamby’s half share was sold by the Fiscal in 1890 to Sinnathuraip-podi Manikapodi Vanniah who obtained Fiscal’s conveyance D1 of1908. That conveyance deals with “ a half share of a field of paddycalled Nendilapallavely alias Avuranaipallevely with share of tank andUrpiddy ” of the extent of 280 fathoms by 190 fathoms as depicted inFiscal’s plan D1a of 1908. By deed D8 of 1901 Sinnaturaipodi Manika-podi Vanniah gifted that half share to his son Manikapody VanniahSinnathurai (one of the donees under D7), and the latter by D3 of 1915gifted a half share to his daughter Tangamma and her husband Arulappa-pillai. Arulappapillai died in 1918 leaving his wife Tangamma and ason Sinnaturai who is still alive. Arulappapillai’s estate wasadministered in D. C. Batticaloa (Testy) 260, and P13 is a copy of theinventory filed in that case. The parents of Tangamma, ManikapodyVanniah Sinnaturai and Kanagammai (donees under D7), died in 1918and 1941 respectively, and the half share gifted by D7 was inheritedby Tangamma. Manikapody Vanniah Sinnathurai’s estate was ad-ministered in D. C. Batticaloa (Testy) 1041, and P12 is a copy of theinventory filed in that case. Kanagamma’s estate was not administered.
Tangamma married the defendant in 1927. By deed D2 of October1941 Tangamma purported to gift to the defendant the entirety of theproperty including the share of Sinnaturai—her son by the first bed.That deed refers to the property as Avaranai Kulam and Urpiddy andgives the extent as 110 acres.
What is the land to which the defendant became entitled by thisseries of deeds ? The Fiscal’s plan D1a of 1908 shows that the landconveyed by the Fiscal’s conveyance D1 was “Nendilapallavely orAvurunaipallevely ” of the extent of 47 acres and 2 roods. The figureof survey refers to the land as K 135 and we know from P10 (the 16chain diagram) that K 135 is a distinct lot not forming part of Z 134 orof A 135 and is at some distance from them. The tenement list P3of 1867 gives the extent of K 135 as 48 acres 2 roods. This would beapproximately the extent given in Dl, D3, D4, D5, D6, D7 and D8.If the Fiscal purported to convey by his conveyance, Dl, AvaranaiKulam or any land other than K 135, it would have been obligatoryon him under section 286 of the Civil Procedure Code to annex to theconveyance “ a sufficient map ” of such lands. I think therefore, that,though the conveyance Dl referred to “ an undivided half share of apaddy field called Nendilapallavely alias Avuranaipallevely ….with' the share of tank and Urpiddy”, it did not, in fact, convey or
140
Meeralevvai v. Seenithamby.
purport to convey a share of the tank and Urpiddy but only certainrights in them, e.g., the right to use the water of the tank for irrigationand a right for the cultivators to live on the high land, Urpiddy. Thename, description and extent of property given in D4, D5 and D6 arethe same as in D1; D7, D8 and D3 refer to the land by the same namesas D1 while giving the extent as 47 acres 2 roods as the Fiscal’s planDIa. It is only the deed D2 of 1941 that describes the property asAvaranai Kulam and Urpiddy and gives so large an extent as 119acres. Moreover, the inventories, P12 and P13, do not include AvaranaKulam or Urpiddy while they include the smaller land Avur anaipalle-velly. A study of the various documents mentioned above leads me tothe conclusion that the deeds in the defendant’s chain of title, exceptD2 of 1941, dealt only with shares in lot K 135 in P3 and the rights ofthe owners of such shares to have their fields irrigated by the channelsleading from Avaranai Kulam and to permit their cultivators to occupythe high land during the period of cultivation.
For the reasons given by me I hold that the defendant has failed torebut the presumption arising under section 7 of the Crown LandsEncroachment Ordinance.
I set aside the judgment of the District Court and direct judgmentto be entered for the plaintiff in terms of clauses (a), (b) and (c) of theprayer in the plaint. The plaintiff will also be entitled to costs hereand in the Court below.
Howard C.J.—I agree.
Judgment set aside.