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Present: Wood Renton A.C.J. and Ennis J.1913.
THE ATTORNEY-GENERAL v. KALIYAMUTHU.
63—D. C. (<Grim.) Badulla, 4,757.
Appeal—Order under s. 1 of Ordinance No* 12 of 1840—Encroachmenton Crown land-—Appeal should be prosecuted according to CivilProcedure Code.
Proceedings under Ordinance No. 12 of 1840 are civil in theirnature. An appeal lies from an order made under 'section 1 of theOrdinance. The appeal should be prosecuted in accordance withthe provisions of the Civil Procedure Code.
rpHE facts appear from the judgment.
Garvin, Acting S..-G.t for the respondent.—No appeal lies againstthe order in this case. The party dissatisfied with an order undersection 1 of Ordinance No. 12 of 1840 must bring a regular actionto establish his title, as provided by section 2 of the Ordinance.
Where the law provides such a remedy, it is not open to the partyaggrieved to appeal. The Ordinance does not make any provisionfor an appeal; it expressly provides another remedy. The inquiryunder section 1 is a summary inquiry for ejecting a party who hadencroached upon Crown land; the object of this summary inquirywould not be gained if he were allowed to appeal. The partyencroaching should surrender possession, and then bring anotheraction to vindicate his title.
Even if the party aggrieved had a right of appeal, he should haveappealed under the provisions of the Civil Procedure Code, as theproceedings are civil in their nature. The present appeal havingbeen taken under the Criminal Procedure Code is irregular, andtherefore the appeal fails.
A. St. V. Jayewardene, for the appellant.—Appeals against ordersunder this section have been taken. See Queen v. Habibu Mohamado;1see also 1 Bel. & Vund. 109. Under the Courts Ordinance, sections21 and 39, the Supreme Court has the right by way of appeal tocorrect all errors in fact or law committed by District Courts.
See Henry v. Aluwiharer
The Crown cannot now object that the proceedings are civil intheir nature. It has itself treated the matter as criminal.
July 1, 1913. Wood Renton A.C.J.—
The accused-appellant was charged, on information by theAttorney-General, under section 1 of Ordinance No. 12 of 1840, with
i Ram. (184845) 129.
(1907) 10 N. L. R. 353.
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having encroached on certain Crown lands. The learned DistrictJudge has given judgment in favour of the Crown, and has orderedthe appellant to deliver up possession of the land and to pay thecosts of the proceedings. He appeals against that order. TheSolicitor-General takes a two-fold preliminary objection on behalf,of the Crown; in the first place, that no appeal lies; and in thesecond place, that even if an appeal does lie, the proceedings underOrdinance No. 12 of 1840 are civil and not criminal in character, andthat appeals from orders made under that enactment must thereforebe prosecuted—a course which has not been taken here—in accord-ance with the provisions of the Civil Procedure Code. I am clearlyof opinion that a right of appeal does exist in such cases as these,although it is not expressly conferred by Ordinance No. 12 of 1840.The fact that section 2 of that Ordinance enables a person, againstwhom an order has been made under section 1, to take proceedingsfor the recovery of land of which he has been dispossessed in favourof the Crown, does not to my mind at all show that no right ofappeal under the section should be recognized. Apart altogetherfrom statutory provisions, to which I will refer in a moment, itwould be hard upon persons in the possession of land claimed bythe Crown if they were to be held liable to be dispossessed by thesummary procedure created by section 1, without any opportunityof- contending in the Supreme Court that the materials necessaryfor the justification of an order under that section were not present.In addition to considerations of convenience, we have the fact thatappeals from orders under Ordinance No. 12 of 1840 have been recog-nized in a series of cases going as far back as 1848. But the matteris, in my opinion, set at rest by the provisions of sections 21 and 39of the Courts Ordinance, which give to the* Supreme Court anappellate jurisdiction for the correction pf all errors in fact or inlaw committed by courts of first instance. It was held by SirJoseph Hutchinson in the case of Henry v. Aluwihare,l that byvirtue of these sections an appeal lies from an order awardingdamages for cattle trespass under the provisions of OrdinanceNo. 9 of 1876. The language of sections 21 and 39 of the CourtsOrdinance, and the reasoning of the learned Chief Justice in thecase of Henry v. Aluwiharetl are amply sufficient to cover the casebefore us. I would hold that an appeal lies, and that this branchof the Solicitor-General's preliminary objection fails. In regard,however, to the second branch of that preliminary objection, Ithink that he is entitled to succeed to a certain extent. It hasbeen held by decisions of the Supreme Court, sitting in its collec-tive capacity, that proceedings under Ordinance No. 12 of 1840 arecivil in their nature. Appeals from orders made under that sectionare therefore civil also, and the present appeal should have beenprosecuted in accordance with the provisions of the Civil Procedure
1 (1907) 10 N. L. R. 353.
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Code. I do not think that it would be right, however, in view ofthe fact that there is no recent case in which this question has beenexpressly raised, that we should treat the portion of the preliminaryobjection that I am dealing with just now as altogether fatal to theappeal. I would direct that the record should be sent back to theDistrict Court of Badulla, and that the appellant should have leave,notwithstanding lapse of time, to prosecute his appeal from theorder of which he complains as a civil appeal to the Supreme Court.
I am of the same opinion, and would make the same order.
THE ATTONEY-GENERAL v. KALIYAMUTHU