THE ATTONEY -GENERAL v. KIRIYA et al

038-NLR-NLR-V-03-THE-ATTONEY–GENERAL-v.-KIRIYA-et-al.pdf



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THE ATTORNEY-GENERAL v. KIRIYA et al.
1897.
December 16.
D. C., Chilaw, 671.Sannas—Non-registration—Causes beyond the control of the personproducing the instrument—Ordinance No. 12 of 1840—Provisoto s. 7 tf Ordinance No. 6 of 1866.
Where defendants sought to account for the non-registration of asannas produced by them in evidence by proof that one Hapuwa,who, before his death, was very old, infirm, and blind for manyyears, kept secret the fact that he had the sannas in his possessionuntil a few days before his death—held by Lawrie, A.C.J., andWithers, J. (Browne, J., dissentients), that the cause shown fornon-registration was insufficient, and that the sannas was notsaved by the proviso* to section 7 of Ordinance No. 6 of 1866.
^HIS was an action in ejectment brought by the Attorney –
General, who alleged that the defendants unlawfully enteredupon Kebellewalla-mukalana, a virgin forest of about 42 acres inextent, and felled the timber trees standing thereon and broke upthe soil, to the damage of Rs. 200 to the Crown.
The defendants pleaded inter alia that the land in questionwas part of a larger tract called. Karawita-agara, which thedefendants and others, who are not parties to the present action,
* Proviso to section 7 of Ordinance No. 6 of 1866: Provided that if it shall beestablished to the satisfaction of the court before which any such deed, sannas,ola, or other instrument is produced that the same was notregistered owing tothe absence from the island of the holder thereof, or of his being under somelegal disability, or from other causes utterly beyond the control of the personproducing it in evidence, such court may allow the production of such deed,sannas, ola, or instrument, and the same shall be received in evidence notwith-'standing that the same shall not have been previously registered as hereindirected.

VOL. III.
12(56)29
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1897.
December IS.
have undisturbedly possessed by a title adverse to and independentof the Crown for upwards of a third of a century next previousto the action, by virtue Of a royal grant or saunas dated 1646.
At the trial the District Judge (Mr. G. A. Baumgartner) heldthe saunas inadmissible for want of registration, and, even ifadmissible, not proved to be applicable to the land claimed by theCrown. The following order of the District Judge sets forth hisreasons:—
The sannas is an important document of title, conveying a right, as thedefendants say, to some 7,000 or 8,000 acres of land. What is theaccount given of its custody, and of the reasons for its non-registration ?
The defendants’ story is that it was in the custody of one Hapuwa,who, before his death, was very old, infirm, and blind. Indeed, he isrepresented as having been blind for many years. He is said to havekept the fact that he had the saunas in his possession a secret until afew days before his death. He then handed it to his son Tambiya.who has given evidence for the defence.
The date of the death of Hapuwa it is of great importance to fix.The defendants contend that it took place about 1881, and so after theperiod allowed for registration. It lay on them to establish this, butno serious attempt has been made to do so. Nothing could be looserthan the evidence on this point; but so far as there is agreement amongthe witnesses, a date twenty-five years ago is fixed as that of Hapuwa’sdeath. Hapuwa’s own son Tambiya, and Horatala, who calls himselfgrandson, both say it was twenty-five years ago, that is in 1871. Thesetwo ought to know better than the other witnesses, and I findaccordingly that Hapuwa died about 1871. This agrees more or lesswith the evidence of Sundarahami, who says the death was twelveor fourteen years before the survey. Mr. Corea states that the surveywas in 1886, and so the date of Hapuwa’s death would be from 1872to 1874. All this period, 1871-74, is prior to the expiration of the periodto which the time for registration was extended under section2 of the Ordinance, namely, 1st February, 1875. On Hapuwa’s deathhis son Tambiya held the sannas. There is great contradiction as tothe time when he first disclosed it to others. Hapuwa, the presentheadman, who ought to know, says, it was first made known in 1886,when, in consequence of lands in the village being surveyed by Govern-ment, the villagers were in want of deeds to prove their claims to land.Tambiya, on the other hand, says he showed the sannas to- others ayear or two after he got it. He therefore made it known in 1872or 1873. Yet, again, he says he did not disclose its existence till fiveor six years ago. Such reckless contradictions induce very gravesuspicion, and justify the Court in adopting the date least favourableto the defendants. I hold, then, that it must have been generallyknown about 1872 or 1873 that the sannas existed and that it was inTambiya’s possession, and the Court has a right to assume that this musthave come to the knowledge of Horatala, who, in the year of Hapuwa’tdeath, says he was making such diligent inquiries in order to findthis sannas. Horatala, I find, had an interest in the land under thesannas at thu time. He shows that he had very good reason tosuppose the sannas was with Hapuwa, yet he quite unaccountably failedto press his search for it. From what he says, Hapuwa offered noopposition, but on the contrary desired him to find the sannas and get itregistered. Horatala, I hold, was a person bound under section 6 of theOrdinance to inform the Registrar of the whereabouts of this sannas.
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He did not do so. He is the person, or one of the persons, who in thepresent case produce the satmas in evidence. There was no cause utterlybeyond his control preventing the registration of the saunas. On thecontrary, very natural steps on his part would have secured itsregistration.
If, on the other hand, Tambiya, who was the first person to produce thesannas in evidence, namely, in the previous case 643, Chilaw, is stillto be regarded as the person so producing, he is still more clearlydisqualified than Horatala from claiming the benefit of the proviso.His only excuse for not registering it between 1871 and 1875 is hisignorance of the law. The proper interpretation of the expression“ person producing it in evidence ” was discussed during the argument.I think it is very evident that the words require to be restricted ininterpretation in a reasonable manner, if the Ordinance* is not to berendered illusory, but in the circumstances of the present case it isnot necessary to lay down what that interpretation should be. Iwill say, however, that there is a good deal to be said for the Solicitor-General’s contention that Tambiya must still he regarded as theperson producing, otherwise he has only to make a transfer of it tosome other person, who could not have controlled the registration,and the sannas would then become admissible. It would be admissibleat one moment and non-admissible at another, a result which couldnot have been intended by the Legislature, and which the Court mustavoid by finding, .if reasonably possible, some restricted interpretationof the words of the Ordinance. But whether Horatala or Tambiyabe considered the person producing, the result is the same. I findthe defendants not entitled to the benefit of the first proviso of section 7.
As to the applicability of the sannas to the land claimed by the Crown,it is not necessary to say much. It was for the defence to establish this.I consider they have wholly failed to do so, and I have the samecomplaint to make as was made by the Supreme Court in case 643,that the defendants should have indicated their claim on paper, andthat there should be evidence of some trustworthy person who hasexamined the locality with reference to such sketch, and who couldthen speak as to the identity of the boundaries mentioned in thesannas with existing physical features, and as to.the position of theland claimed. With reference to such features I am really left in doubtwhether some of the supposed boundaries have any actual physicalexistence. The proof as to this part of the case is very meagre andslipshod, and altogether insufficient to satisfy the requirements ofsection 6 of Ordinance No. 12 of 1840.
And on the merits—that is, the question of prescriptive posses-sion—the District Judge expressed himself as follows:—
This village Karawita-agara is shown to have an area of upwards of800 acres, and to contain about 100 houses, with their separate gardensabout them. There are fields, chenas cultivated with various kindsof crop, and cocoanut plantations of various ages. That all this shouldbe held in common by the whole body of villagers under one singletitle would be a phenomenon so rare that I have heard of no case likeit in Ceylon; but the defendants’ Proctor having undertaken to establishthe existence of this unique holding, I of course allowed him to enterinto evidence.
Had he succeeded in showing that all the lands over which acts ofownership were being exercised within the village boundaries were reallyheld in common as alleged, it would have gone very far towards provinghis contention that all the land within those boundaries, including also theforest, didfonnonetitle. But the attempt, as was expected, wholly failed,and I wish to remark on the singular poverty and meagreness of evidenceon the part of the defendants, considering the importance of their claim.
1867.
December 16,
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1897.1 think, if their claim had been a substantial and bond fide one,
December lb. there would not have been the lack of independent evidence, which is so conspicuous in this case.
Those who have given evidence are Horatala, the fourth defendant ;Elakiri Veda, a poor and ignorant man, who comes without summons,and is dependent on the defendants ; Tambiya, the person who producesthe sannas ; Sinnappu Vedarala, who is also interested in the successof the present case; Bandirala, vel-vidane; and Sundarahami, adismissed headman.
The two latter, though they make statements which might helpthe defendants, yet, in cross-examination, they both render theirevidence worthless.
Such are the witnesses adduced for the purpose of establishing thetenure in common of all the land in the village Karawita-agara. Thoughthey say that a share of the crop of the chena, or as the case might be,went to the general body of the villagers, not one of them is able tosay how this was carried out in practice. Not a witness is adducedwho says he ever received his share of the produce of lands cultivatedby his neighbours. The witness Tambiya, who ought to know, neverwas present at the division of the produce of any of the lands inKarawita-agara, and he says that he does not know how the fields areheld, but that the lands attached to the houses are separately possessed.
I have no doubt that the alleged tenure in common of the whole of theland in the village is a fiction, invented and put forward for the purposeof this case. The defendants therefore are left to rely on such proofas they have adduced of acts of ownership of the particular lot claimedin the plaint. Here, again, the evidence adduced is conspicuouslyinadequate to their pretensions. Little or no value can be attached tothe statements made by the interested witnesses called. Some ofthem say they cut fence sticks there, but the effect of this is quiteneutralized by the admission of Sundarahami, that no permission isrequired to cut fence sticks in Crown land. It is suggested that largetimber was also taken to be made into door-frames, &c.,but the defend-ants have not taken the trouble to bring forward the witnesses whocould prove the fact. But even if the villagers did take timber from theland in question, it is evident that the Crown never acknowledged-theirright to do so, though negligent headman may have connived at it.
The evidence establishes no use of the land, still less any possessionof it adverse to the Crown. I find the Crown entitled to judgment.The defendants, as trespassers, are jointly and severally liable. Iorder that judgment be entered accordingly as prayed in items a, Cjand e of the prayer of the plaint, together with Rs. 200 only asdamages.
The defendants appealed.
The case came on for argument on the 29th July, 1897, beforeWithers, J., and Browne, A.J.
Dornhorst, for appellants.
Wendt, A. S.-G., for the Crown.Cur ^ ^
On a subsequent day their Lordships intimated that the casewould be set down for re-argument before the Collective Court.
On the 5th November Lawrie, A.C.J., and Withers, J., andBrowne, A.J., heard the case.
Dornhorst, for appellants.
Ramanathan, S.-G., for the Crown.qut_ agv_ vun
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16th December, 1897. Lawrte, A.C.J.—
The time for the registration of deeds dated before the Ordi-nance No. 12 of 1840 came into operation expired on 1st February,1875. Any one desiring to read in evidence an unregistered olddeed after that day had to prove—first, that the deed had been inexistence prior to that date ; and second, to prove the cause why ithad not been registered.
What is the cause shown by these defendants why this sannas(assuming it to have been in existence) was not registered beforethe 1st of February, 1875 ? They say, “ We do not know why our“ grand-uncle, who then was in possession of the sannas, did not“ register it.” In short, they show no cause at all, and the showingof a reason why the deed was not registered is a condition precedentto their being allowed to produce it in evidence.
The reason why the unregistered deed was admitted in the casereported in the IXth volume of the Circular was that the personproducing the deed showed that it was for the interest of theholder between 1886-75 to withhold the deed from registration;if he had registered it, his right would have been plainly a limitedright under a fidei commissum, whereas he pretended to be absoluteowner, and as such he executed the mortgage which was the subjectof that action.
That, then, was a good cause why the deed was not registered,and the defendants’ minority was a good reason why he did notforce the registration by the procedure of the 6th section ofOrdinance No. 6 of 1866.
In the case of these present defendants, who, I understand,
■ were alive and of full age during the years from October, 1866,to February, 1875, they had to show reasons why the sannas wasnot registered, and they have (in my opinion) shown none.
The Ordinance applies only to deeds in private hands; it doesnot effect public records, thombus, &c., in the public archives,nor the decrees of courts, and the like.' Further, it affects deedsas titles to property: a deed, however old, may be produced toprove paternity or relationship, or marriage, or to prove anyother fact than the creation, transfer, or extinguishment of title toproperty. I am of the opinion that as the defendants tendered inevidence this sannas for the purpose of proving that two hundredand fifty years ago the King of Kandy divested the Crown of theland in question, and that he created a right of property in oneor more of his subjects, that sannas may not be received, becauseit was not registered and no cause was shown for the omission.
1897.
December 16.
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1897.
December 16,
Lawbih,
A.O.J.
The Attorney-General has rested the claim of the Crown on thepresumption that this being a forest is the property of the Crown.Has that presumption been rebutted by the evidence led by thedefendants 7
It is proved that these 41 acres (for that is the extent now indispute) are in a populous village, that close at hand are the fieldsand the houses and the gardens of these defendants and theirbrother villagers. It is proved that from time immemorial thevillagers have gradually cut down the forest, of which these 41acres are the remnant, and have chenaed and possessed; thatfrom the forest they have taken such timber and firewood as theyneeded. It is a bit of land which is indispensable to the prosperity,nay, even to the existence of a village, for who can live withoutfirewood ? Is such a bit of land a forest within the meaning ofthe Ordinance ?
If there had been only one defendant who had proved the sameacts of possession by himself and his predecessors in title for athird of a century, would he have rebutted the presumption infavour of the Crown ? Does it make a material difference thatthese defendants do not claim the forest as their own, to the exclu-sion of the rest of the village, but that they meet the claimof the Crown by proving the immemorial exercise of rights ofmany others than themselves, which they say is relevant evidencethat this land is not Crown land.
Ordinance No. 12 of 1840 is too strong for me. I am obliged toanswer all these questions in favour of the plaintiff. The pro-perty is in the Crown, and it is right to save the forest from beingentirely destroyed.
Withers, J.—
This is an action by the Attorney-General to recover from tenpersons a piece of Crown forest land, which it is alleged they haveunlawfully cleared and taken possession of.
It was a part of the defence that the land cleared does not belongto the Crown, and to meet this part of the case a sannas was pleaded.The case came up first of all before Mr. Browne, A.J., and myself.We could not quite agree as to the effect of Ordinance No. 6 of1866 with respect to this sannas, so we thought it better to havethe case re-argued before the Full Court.
The sannas in question purports to bear date before the 1stday of February, 1840, and it was enacted by the 7th sectionof the Ordinance referred to that, from and after the expiry of theextended time for the registration of old instruments of title, nodeed, sannas, ola, or other instrument on which title to land or
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other immovable property is founded, which bears date on or before1897 •
1st February, 1840, shall be received in evidence in any civil Decem*>er 10-proceeding in any Court of Justice for the purposes of creating, Withebs, J.transferring, or extinguishing any right or obligation, unless suchdeed, saunas, ola, or other instrument shall have been previouslyregistered in the manner heretofore directed.
It was not, as I understood, proposed to put this sannas forwardas a document of the defendants’ title to this land. It was spokenof as a royal grant to people for military services against the Portu-guese. It was intended to show that the grantees were overlordsof the tracts of land including this forest, and that the defendantswere part of the village community, the descendants of those whooriginally held parcels of this land under the original grantees.
Hence, this sannas was to be used rather to rebut the Crown’spresumptive title to this forest land than to create a title in thedefendants.
Looking, however, to the scope of the Ordinance which was toprovide against the production in evidence in Court of Justice, andtherefore against the manufacture of false deeds, &c., purport-ing to bear old dates, I take it that we must give the words of the7th section which I have cited the most ample construction whichthey can reasonably bear, so that I interpret the section to meanthat no unregistered document of a certain age shall be admittedas evidence of the creation, transmission, or extinguishment of anyright or obligation in any one regarding immovable property.
Thus, this document, as evidencing a title in the original grantees,though not in the defendants’ predecessors in title, cannot, unlessit comes within the proviso of the 7th section, be used to rebut thepresumptive title of the Crown. Then comes the question, Isjbhe sannas saved by that proviso ? The Judge finds, and I thinkhe is justified in finding, that one Hapuwa was the holder of thissannas during the time fixed by the Ordinance for the registrationof these old deeds. He further finds that Hapuwa died in the earlyseventies, and before his death committed this sannas to his sonTambiya.
Now it is not proved that Hapuwa and Tambiya were under anylegal disability at the time, such as infancy or lunacy, and so notcompellable to bring in the document for registration. If boththose persons were in the Island at the time and were under nolegal disability, then the omission to have this sannas registeredshuts this document out. Apart from this sannas, it appears tome that the evidence led by the defendant has not displaced theCrown’s presumptive title to the soil of the forest from whichthe defendants have cleared and appropriated ten cres. At the12-
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1897. most there is some evidence that the residents of the village inDecember 16. which this piece of forest is situate, including the defendants andWitents, J. their ancestors before them, have practised chena cultivation inthe neighbourhood of this forest, and have taken the produce ofthis forest for domestic and agricultural requirements. If thoserights exist, the Crown will no doubt recognize them in a suitableway. But as between the Crown and the present defendants, theCrown is entitled to judgment.
Browse, A.J.—
I regret that in this case I am not able to agree with the viewsexpressed by my Lord the Chief justice and my brother, whosejudgments I have had the opportunity of perusing. It appearsto me, especially after the decision in 9 S. C. C. 102, that as greatstress should be laid upon the enabling proviso to the section asupon the debarring enactment in the commencement of it, thatthe Legislature intended to be perfectly just in the matter, andas such to recognize and legislate for the case of the innocentsubsequent claimant just as fully as that of the apathetic originalpossessor, and to see that the sins of omission of the latter werenot visited' on the head of the former, unless he was a privy inestate or consenting to the original fatal apathy. I venture todiffer from my Lord the Chief Justice, who holds the defendantsconcluded simply because they have not shown why the sannaswas not registered within the 8£ years, and to suggest that it issufficient that they can show they are not only not responsible forthe omission, but even did their best to have the requirements ofthe law fulfilled. My brother, too, holds merely that the documentis excluded by the omission to register it made by Hapuwa andTambiya, and he has not adjudicated upon the claim of th,edefendants that they are deserving to have this omission not visitedupon them.
If Clarence, J., was right in holding that to give effect to theproviso would nullify the enactment, my fears would be exactlythe converse ; that to construe the enactment of restraint toostrongly would nullify the proviso and the purpose it indicated ;that the case of every claimant should be dealt with on its ownindividual merits.
When the time came that the sannas here tendered in evidenceby these defendants should be registered, it was in the possessionof others who did not register it. It is sufficient, so far as regardsthe first part of clause 7, merely to say that they did not. Thecause is possibly unknown to these defendants. It may be suggestedIt was out of some greed on the part of Hapuwa that it
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might enrich him or his family hereafter. Nothing certain is 1897.known beyond two things : he did not do it; and he so abstained, December 10.when, defendants say (and I see no reason why they should be Brownb,disbelieved), they were doing their best to discover where the A.J.sannas was and have it registered.
In this case the first part of section 7 may be dismissed fromconsideration. The second part, the rights under the proviso,has alone to be adjudicated upon.
The Legislature was careful to be perfectly just in its enact-ments, and to prevent the sins of omission of a miserly or apatheticpossessor at the time when registration should not be madebeing visited on the head of one who was in nowise to blameby his own acts therefor, or, as privy in estate, legally liable for theconduct of his predecessor.
This Court in construing the Ordinance has recognized thispurpose of Legislature. It has considered in 9 S. C. C. 102, whetherone producing it should be held entitled to the benefit of the provisowith the result that he ultimately was allowed it on the groundof his minority. In another unreported case (89,838, D. C.,
Colombo) it did not allow my contention as counsel for a purchaserto be allowed its benefits when his vendor had not registered.
Each case was to be dealt with on its own merits, and I ventureto differ from my Lord the Chief Justice and my brother, for thatin my judgment the claimant here has sufficiently brought himselfwithin the benefit of this proviso, and that their judgments do notshow wherein he is disentitled thereto.
What more could one interested do than inquire where the sannaswas in order to have it registered ? Not knowing who had it,he could not act under section 6. He is met with. a sedulousconcealment of its existence, and when, on his rights being firstassailed, he discovers it and puts it forward, I find no reasonadvanced why he should not be held free to adduce it.
In the case I have quoted, Clabence, J., feared that to give effectto the proviso would nullify the enactment; my fear in thisinstance is that in looking too closely at the deliberate omission ofanother we may lose sight of the rightful claim of the defendants.
In the absence of the sannas I agree that the alternative branchof the contention can be supported, for there is wanting a unionof the several acts of possession, as taking !firewood, creepers, &c.,each of which would enure to the benefit of another by reason ofthe actors being members of a community I would desire toconcur in the hope expressed that the privilege hereto enjoyedmay, however, be conceded out of the grace which previouslyGovernment desired to show towards the villagers.