THE ATTORNEY-GENERAL v. PUNCHIRALA et al

009-NLR-NLR-V-21-THE-ATTORNEY-GENERAL-v.-PUNCHIRALA-et-al.pdf


{ 61 )
[Full Bench.]
Present: Ennis A.C.J., De Sampayo J., and Loos A.J.
THE ATTORNEY-GENERAL v. PUNCHIRALA et al.
349—D, C. Anuradhapura, 769.Chena lands in the Kandyan Provinces—Noprescriptionagainst the
Croton.
Pull Bench.—In thecase of chenalandsinthe Kandyan
Provincestitle byprescription cannot beproved againstthe
Crown.
Attorney-General v. Punchirala 1 followed.
Db Sampayo J.—“ NoCourt should refuse toapplystatute law, –
even though there beno formal issuestatedonthe point.. If
necessary,the Courtshould, inpursuance ofthe provision ofthe
Civil Procedure Code in that behalf, frame an issue before – deliveringjudgment.”
1919.
1 {1915) IS N.L. R. 152. *
* The original of this judgment is not available in the Registry.—-Ed.
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1M9.
The
Attorney-
Oeneralv.
Pvnahiraia
T
me facts ..are set out in the judgment of the District Judge(Dr. P. E. Pieris):—
This is an action brought by the Crown in respect of a chena of about8 acres sitaated eighteen miles from Anuradhapura, and which is claimedby the defendants.
There is a statutory presumption in the case that the land is Crown,for at the time it was cleared by the defendants there was on it a forestgrowth of about twenty years. The defendants claim -it under theirtalipot D 1, which bears the date of 1661 Sake, or .1712 a.d. This documenthas for many years been in the custody of the Police Court, from whichit is now produced.
No question has been raised as to its having been in lawful custody.
It was duly registered in 1873 under the Ordinance of 1866. It purportsto convey an extent of land, and names certain boundaries which areidentifiable to-day, and within which the land in dispute falls. It isthe admitted fact that for many years, in spite of much litigation, theparties claiming under D 1 had persistently and resolutely been clearingthe land within the boundaries. The main issue which I am asked todecide is as to the genuineness of D 1. There is a presumption as toits genuineness.,
To rebut that presumption the Crown has called evidence. Mr. Bell,formany years Archaeological Commissioner, isthe chiefCrownwitness.
Hehas criticised the document from variouspoints ofview.He has
pointed outcertain orthographicalerrors, buthascandidly admitted
that in themselves they were not sufficient to condemn the 'document.
I am inclined to go further, and to suggest that these errors seem anindication ofthegenuinenessof aliteraryeffortproduced in a miserably
backward district in a miserably backward period. I do not admitthat all the alleged mistakes are mistakes, but, in view of the very littleweight attached to them by Mr. Bell himself, it is unnecessary to discussthem in detail.
Hehaspointed out-. that thesignatureor sign manual appearing- in
thedocument, the entirety of which he wasunable toread,does not
appear to spellBajakaruna,whichis thenameofthe alleged grantor.
The letters are a mixture ofTamil and Sinhalese. Ididnotunder-stand that Mr. Bellinferredfrom this thatthedocument was genuine.
It is rather difficult to thinkthata party intendingtoforgeBaja-
karuna's signature deliberately went and -wrote something else.
This, again, seems to point to the bona fides of the document. I thinkit iswellknown thatin ancientSinhalesetransfers of lands the signature
of the grantor was not regarded as invariably necessary. The mainthing wasthenames ofthe witnesses.Mr.Bellfurther points out
that the village of the grantordoesnot appear, and heis ofopinion that
in genuine documents the villageinvariably appears.Ifthelatter
were the fact, itisdifficult to conceive whytheforger,who undoubtedly .
musthavehad somedocumentin – hismind, omitted the village. I
fear I cannot accept Mr. Bell’s opinion on the point as conclusive, norcan I attach weight to the position of the clause containing the date orto the use of the expression Wasamo gath bawata.
The weight tobeattachedto his evidenceisvery *~usly discounted
by the fact thatitis basedon an examination,not oi >mat documents,
but almostexclusivelyof copiesobtainedfrom the Begi-Si'- of Lands.
i
( S3
AsD 2 shows,these copies themselves contain errors.Withoutexamin-ingthe originalit is not possibleforMr.Bell to saythat thedocument
he prefers to follow in any precise matter is itself a genuine one and nota forgery. It is also obvious that he has seen very few documents ofthe age and of the district of D 1.
Not a solitary document ofthose onwhich he relieshasbeenproduced
in Court, and it is very doubtful whether the evidence which he has givenin respect to them is evenadmissiblelegally. To beperfectlyfair to
him, I should record that the impression which he created in my mindwas that he saw some reasonto doubtthe genuinenessofD 1,but that
he was not prepared unhesitatingly to say that D 1 is a forgery.
In view of the circumstances of the country, and of the allegedtime when D 1 was written, I thing it is equally possible to cometo a different conclusion on examining the very points touched uponby him.
The evidence is totally inadequate forholding that D1is aforgery.
TheCrown casemust stand orfallon that issue;that there was
possession of thisparticular blockbythedefendants isprovedby the
fact that the growth on it was only twenty years old.
The plaintiff’s action is accordingly dismissed, with costs.
1M9.
The
Attorney-General v.PuneHirala
Garvin, 8.-G. (with him V. M. Fernando, G.C., and Dias, C.G.),for plaintiff, appellant.—In the case of chenas in the KandyanProvinces section 6 of Ordinance No. 12 of 1840 admits proof ofprivate title only by sannas, by grant, or'by payment of customarytaxes within twenty years. This has been repeatedly held.in anumber of cases. Counsel cited Bam. (43-45) 25; (1854) Nell G. R.239 (37: Nuwara Eliya, 88); 268, C. B. Panwila 273;* Ban Menikav. Appuhamy;* 161, C. B. Kegalla, 5,024;* 333, D. C. Batnapura,1,309; 4 D. C. Kegalla, 3,129;* Abeyeekere v. Banda*
Lawrie J., referring to lands in Kandyan Provinces, said; “ Thebetter the proof that the land is chena, the stronger is the presump-tion that it belongs to the Crown, and that presumption can berebutted only by proof of a grant or by payment of tax ” (Attorney-General v. Wanduragala7).
Thombu register cannot give title to a. private party to chenasin the Kandyan Provinces. At the most it may denote the originof prescription. But under Kandyan law a private subject cannotprescribe against the king, and Boman-Dutch law of prescriptionwas never extended to the Kandyan Provinces (6,418, Agent’sCourt, Batnapura;8. Attorney-General v. Punehirala*). But contrasee 295, C. B. Gampola, 1,094,10 and Ban Menika v. Appuhamy.*
The learned' District Judge was in error in holding that the Crowncase must stand or fall on the issue as to forgery.
18. C. M., Nov. 30, 1893.
(1901) S N. L. R. 226.
8. O. M., June 19,1906.4 8. O. M., April 6,1905.
8. O. M., Sept. 12,1913.
«(1918) 20 N. L. B. 447.
7 (1901} 6 N. L. S. 98, at 106.» 8. 0. M., Nov. 1,1838.
» (1915) 18 N. L. B. 162.
“ 8. O. M., Dee. 14,1898.
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1919.
The
Attorney-General v.Punehirala
The defendants admitted that the land in question was chenaland, to which the presumption created by section 0 of OrdinanceNo. 12 of 1840 in favour of the Crown applied. That presumptionhas not been rebutted.
It was proved at the trial that the talipot in question was atransfer between private parties; it cannot affect the case for theGrown.
Even assuming, as the District Judge has done, that the talipot isgenuine, its production is not sufficient to rebut the presumption infavour of the Crown.
A. St. V. Jay award, ene, for the defendants, respondents,—Theclaim of the Crown is based on the presumption created by section6 of Ordinance No. 12 of 1840. This presumption only applieswhen the Crown invokes the summary procedure laid down by thatOrdinance. It has no application in other forms of action. The, Ordinance as originally passed had the words “ and it is furtherenacted ” at the beginning of section 6 and the other sections,clearly showing that the sections hang together (Stroud’s JudicialDictionary). The presumption should not be given a generalapplication. Even 'if the section applied generally, the presump-tion created by it is a rebuttable presumption. “ Deemed to belongto the Crown ” does not necessarily mean taken as conclusivelybelonging to the Crown. See the language used in section 5.
The Boman-Dutch law allowed prescription of roads. WhenKandyan law is silent, Boman-Dutch law applies.
[De Sampayo J.—Kandyan chenas all belonged to the king, unlesshe gave it to a private party.]
The effect of section 2 of Ordinance No. 9 of 1841 is not to
distinguish Kandyan chenas from low-country chenas.
/
Section 8 of Ordinance. No. 12 of 1840 creates presumptively atitle by prescription after thirty years. Up to thirty years there isno prescription against Chena Lands. After thirty years all landsare in the same position, i.e., full title is given. Otherwise theexemption of chenas froni the operation of section 8 is meaningless.It is because rights can be acquired in chena land by possessionthat they have been expressly exempted from the operation of.section 8 (see Ordinance No. 9 of 1841).
The history of Ordinance No. 12 of 1840 is fully given iti Babappuv. Don Andris.1 The effect of the disallowance of Ordinance No. 5of 1840 and the Order in Council of August 11, 1841, soon after thepassing of Ordinance No. 12 of 1840, was to give prescriptive titleby possession for thirty years and upwards. Thirty years insection 8 of Ordinance No* 12 of T840 was the same as one-third ofa century in Boman-Dutch law.
* {1910) 13 N. L. R. 973.
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If the Crown ig entitled to suooeed on this issue, the defendantshould be given an opportunity of showing that the talipot theyrely on has been granted by an official, a “ mudiyanse,” who was ahigh official during the Kandyan times (see levers’ Manual of theNorth-Central Province), There is hardly any proof except theadmission that the land in question is chena. The District Judgedoubts whether the land is chena, on the evidence led by the Crown.
April 10, 1919. Ennis A.C.J.—
This was an action by the Crown for a declaration of title tocertain lands. Counsel for the defendants admitted that the landis chena land, and that there is a statutory presumption in favourof the Crown. The learned District Judge gave judgment forthe defendants, and the plaintiff appeals. The case has beenreferred to a Full Court by my Brothers de Sampayo and Loosfor the consideration of one question only, viz., whether, in thecase of chena iand in the Kandyan Provinces, title by prescriptioncan be proved against the Crown.
Section 6 of the Ordinance No. 12 of 1840 provides that “ allchenas and other lands which can be only cultivated after intervalsof several years shall, if the same be situate within the districtsformerly comprised in the Kandyan Provinces (wherein no thomburegisters have been heretofore established), be deemed to belong tothe Crown, and not to be the property of any private person claimingthe same against the Crown, except upon proof only by such personof a saunas or grant for the same, together with satisfactory evidenceas to the limits and boundaries thereof, or of such customary taxes,dues, or services having been rendered within twenty years for thesame as have been rendered within such period for similar landsbeing the property of private proprietors in the same districts.”
Most of the cases on this section were considered in The Attorney-General v. Punchirala 1 by Sir Alexander Wood Benton, who heldthat the natural interpretation of the section was that no title canbe set up against the Crown to lands of the class dealt with by thesection, save a title by sannas, or by grant, or by customary taxes,dues, or services within the prescribed period. With that inter-pretation I am ih entire accord. It was urged that section 5 of theOrdinance No. 5 of 1852 introduced into the Kandyan Provincesthe Boman-Dutch principle; that in a number of cases regardingchena land in the low-country, it has been held that prescriptionwould run against the Crown in the case of chena land in theKandyan Provinces. The reason given in section 6 for making forthe Kandyan Provinces a provision different' from the provisionin the other Provinces is that in the Kandyan Provinces therewere no thombu registers. The thombu registers were the meansby which the Dutch Gdvemment recognized private title to land,
1 (1916) 18 N. L. B. 152.
1919.
The
Attorney-General v.PuneMrala
21/9( 50 )
1910.
Emms
A.OJT.
The
Attorney'
General v.Punehirala
and title could easily be proved by the production of a certified copyof the register. It was title by registration, and I venture to doubtwhether under the Dutch Government, with the thombu systemof registration, any title by proof of prescriptive possession wouldhave been required at all. But for the purposes of this case theAttorney-General conceded that prescription runs against the Crownin the case of chena land in the Provinces other than Kandyan.It then remains to consider whether Kandyan law is silent on thepoint. On this point it seems to me that section 6 of the OrdinanceNo. 12 of 1840 is express: no title can be set up against the Crownexcept as therein mentioned, and proof of prescriptive possession isnot one of the methods enumerated. It was urged for the respondentthat the reasons which led to an amendment of the Ordinance latershowed a leaning towards prescription, and the case of Babappuv. Don Andris,1 which sets out the history of enactment, was cited.It seems to me that the contention is against the respondents, for ifthe alterations were made with prescription in view, it would havebeen easy to alter section 6. The presumption is that section 6 wasintentionally left as it originally stood, i.e., proof of prescriptivepossession was not one of the means by which the title of the Crowncould be contested.
An argument based on section 8 was addressed to us, but I amnot sure I have properly understood it. It seemed to be thatsection 8 had introduced prescription into the Kandyan Provinces,but if this were so, the original section 9 of the Ordinance, and theamendment introduced by the Ordinance No. 9 of 1841, expresslydeclared that the provisions of section 8 should not apply to theland referred to in section 6. .
In the circumstances, I am of opinion that the question referredto the Full Court must be answered in the negative.
De Sampayo J.—
This action was brought by the Attorney-General to have .itdeclared that a -land' called Hikgahahena, situated in Periyakulama,in the Kalagam korale, in the Province of Sabaragamuwa, was theproperty of the Crown. The defendants claimed-it on a talipot orola deed of the Saka year 1664 (1742 a.d.) in favour of an ancestorof theirs, and also by right of prescriptive possession. It wasadmitted at the trial by counsel for. the defendants – that the landin dispute was chena, and that there was a statutory presumption infavour of the Crown. The talipot in question .was then producedand marked D 1, and, in addition to an issue previously framed asto the jurisdiction of the Court, the following issues were framed: —
Is the land in dispute covered by the document D 1?
Is the document D 1 a forgery?
What damages, if any, is plaintiff entitled to?
1 (1910) 13 N. L. R. 213 (with correction in 14 N. L. R., page iv).
( 57 )
The revenue officer of Tamankaduwa, who was a Crown witness,established the fact that the land Hikgahahena was within the bound-aries given in the talipot. As regards the third issue, Mr. H. C. P.Bell, the retired Civil Servant and Archaeological Commissioner,was called to prove that the talipot was not genuine, but the ques-tions addressed to him for that purpose were for some reason orother objected to by counsel for the defendants, and, as I understandthe record, were disallowed. Nevertheless, Mr. Bell was allowedto say something with regard to the character of the document,and at the conclusion of the evidence the Crown Proctor intimatedto the Court that the plaintiff was not really interested in thedocument D 1, and was indifferent as to whether it was genuineor not, his standpoint being that the talipot, not being a grant orsannas within the meaning of section 6 of the Ordinance No. 12 of1840, was insufficient to upset the statutory title of the Crown.The District Judge, for the reasons stated by him in his judgment,held the talipot to, be genuine, and, remarking that the case ofthe Crown must stand or fall on the issue of forgery, he dismissedthe plaintiff’s action, with costs.
IMA.
Db SauvayoJ.
The
Attorney-General e.Punchiraia
When the appeal first came before my Brother Loos and myself,the Solicitor-General took up the same position as the CrownProctor in the Court below with regard to the effect of the talipot.Mr. Jayawardene, however, argued that as no issue had beenstated as to whether the talipot, even if genuine, satisfied therequirements Of section 6 of the Ordinance, the action must, as theDistrict Judge himself appears to have thought, fail, in view of thefinding as to the genuineness of the talipot. This is taking a verynarrow view of the nature of a trial in the Court of first instance.The issue said to be necessary would have reference merely to theconstruction of an Ordinance, and no Court should refuse to applystatute law, even though there be no formal issue stated on thepoint. If necessary, the Court should, in pursuance of the provisionof the Civil Procedure Code in that behalf, frame an issue beforedelivering judgment. Moreover, the contention on behalf of thedefendants takes no note of the fact that the Crown Proctor, as amatter of fact, submitted to the Court for its consideration the verypoint which would have been the subject of Idle issue which is saidto be wanting, and I think it was impossible for the Court to ignoreit. Mr. Jayawardene then argued that the talipot was a documentin the nature of a sannas, and in support of this we were referredto Marshall’s Judgments 297, in which the learned Chief Justicediscusses the nature of service tenure lands, and shows how.if the tenant abandoned the land, it reverted to the king, whosometimes re-granted the land, and he proceeds to say-that, “ accord-ing to more general custom, the crop was appropriated by ordisposed of by the chief of the province, village, or departmentto which the land belongs, or it was re-granted by him to another
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1919.
De BampayoJ.
The
AttorneyGeneral v.Punchirala
subject to the same service, and frequently on payment of a suitablefee.” Mr. Jayawardene asked us, if necessary, to give him anopportunity to show that the person who gave the talipot was anofficial of the kind. But there is no indication whatever that thetransaction was one of the kind to which -Sir Charles Marshallrefers. The talipot in form and substance is a private conveyanceby one private person to another for the consideration of 150 ridispaid in cash. There is no reference to the grantor being an officialof any kind, or to the land being service land, nor are any servicesreserved on the conveyance. We, therefore, did not think that thecase was such as to justify further inquiry on the point suggested.It was also contended that the land was not chena so as to be affectedby section 6 of the Ordinance. One or two of the headmen whowere called to prove the damages stated in the course of theirevidence that the jungle on the land was of about twenty years'growth, and so it was argued that it was not chena land. We couldnot follow Mr. Jayawardene here, but it was unnecessary for us todiscuss once again the old question as to what a chena is. It had beenadmitted in the Court below ttiiat the land in dispute was chena. towhich the presumption m favour of the Crown applied, and the appeal,therefore, could only be considered and disposed of on that basis. Itwill be noticed that the defendants in their pleading depended onprescriptive possession, though no issue on that point was stated .atthe trial, and Mr. Jayawardene finally asked us for an opportunity toadduce evidence of prescription. To this the Solicitor-General’s replywas that the land being chena, situated in the Kandyan Provinces,prescription was not available against the Crown, and he cited thedecision of Wood Benton C.J. in The Attorney-General v. Punchi-rala.1 That case was quite in point, and we ourselves felt no doubton the subject, but we thought it best to refer the question to the FullBench in order that it might once for all be settled.
Having fully heard counsel on .the point referred, I have'nohesitation in agreeing with the decision in The Attorney-General v.Punchirala (supra). All the previous decisions on the subject werethere collated and discussed, and among them were two. unreported,judgments of Lawrie J. (268, C. B. Panwila, 273, and 295, C. B.Gampola,' 1,094), which practically created the whole difficulty.Those two cases' were decided by Lawrie J. on a finding that,though the lands in claim were chenas in the Kandyan Provinces,a prescriptive title had been established against the Crown. Inneither of them, however, was the particular provision of section 6of the Ordinance fully discussed or'considered, and both appear tobe primes impressionis only, inasmuch as the learned Judge regrettedthat, for the reasons stated by him, he was unable to refer the matterto the Full Court. The later case, Corea Mudaliyar v. Punchirala,ais not in point, because tile subject-matter there was not a chena in
i (1915) 18 N. L. R. 152.
* (1899) 4 N. L. R. 135.
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the Kandyan Provinces. On the other hand, The Attorney-Generalv. Wanduragala,1 in which the same learned Judge delivered theprincipal judgment, and which, I think, is a more authoritative deci-sion, is consistent with the previous unreported Courts of Bequestscases. There it was found that the land was forest, but counselstrenuously argued that it was chena, and on that assumption, andreferring to certain cases cited to him, Lawrie A.C.J. said: “ So faras any of these decisions hold that proof that private parties culti-vated the land as chena is proof of private ownership, they seem tome to be contrary to the words of the Ordinance. The better theproof that the land is chena, the stronger is the presumption thatit belongs to the Crown, and that presumption can be rebutted byproof of a grant or by payment of tax.” I have italicized this lastsentence, because it is expressive of the learned Judge’s consideredopinion that, under section 6 of the Ordinance, the presumption infavour of the Crown with regard to Kandyan chenas could onlybe met by one or other of the modes which are therein specified,and of which prescription is not one. But the matter is thrownagain into a state of obscurity by Ran Menilca v. Appuhamywhere Lawrie A.C.J., while expressly saying that he adhered to theconstruction of section 6 of the Ordinance No. 12 of 1840, given byhim in The Attorney-General v. Wanduragala (supra) went on tostate that his judgment in C. B. Gampola, 1,094, contained a correctstatement of the low. I think, however, that there he did notpurport to deal specifically with the effect of section 6 of theOrdinance, but was combating an opinion of Bonser C.J., thatprescription was now wholly regulated by the Ordinance of Prescrip-tion, and not by the Boman-Dutch law, and, in consequence ofsection 2 of the Begulation No. 13 of 1822, that it was not a modeof acquisition of title, but was only a limitation of action, and hemeant to state his own opinion to the contrary. He no doubt addedthat in any case "the Begulation of 1822 did not touch the Kandyanlaw, by which (he said) possession for thirty years gave “ title.”He, however, gives no authority for this proposition, nor has anybeen cited to us. So far as I can discover, there is no trace ofprescription in the Kandyan law, and with great respect I should saythat under the Kandyan law the principle nullum tempusoccurrit regi was equally applicable. The extension of the law ofprescription in any respect to the Kandyan Provinces is a matterof statutory provision. Previous to 1870 it appears to have beenthought that prescription was unavailable against the Crownat all, but in D. C. Colombo, 1,246,3 it was decided that theCrown in Ceylon was in the same position as the fiscus under theBoman-Dutch law, and that possession of land for a third of acentury gave title by prescription against the Crown- This has
1919.
Db SampayoJ.
The
Attorney-General v.Punchirala
111901) 5 N. L. B. 98.
* (1901) 5 N. L. B. 226.
? Vand. Bep. 83.
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1818.
DbBawayo
J.
The
Attomey-Ckneral v.J’unchirala
since been the accepted law on the subject. Section 5 of OrdinanceNo. 5 of 18£>3 provides that where the Kandyan law is silent on anymatter arising for adjudication within the Kandyan Provinces, forthe decision of which other provision is not specifically made, theCourt shall have recourse to the law on the like matter in forcewithin the Maritime Provinces. Consequently the law of prescrip-tion above laid down may be considered to have become applicableto the Kandyan Provinces. That being so, if a .question arose asto title to “ forest, waste, or unoccupied or uncultivated lands ’’within the meaning of section 6 of the Ordinance No. 12 of 1840,or to chenas in Provinces other than the Kandyan Provinces, theprivate claimant might rebut the presumption in favour of theCrown by proof of prescriptive possession for a third of a century.But the question now is as to chenas situated within the KandyanProvinces, and that depends on the construction of the specialprovision contained in the same section with regard to them.
The provision is that such chenas shall be deemed to belong to theCrown, and not to be the property of any private person, “ except upon
proof only by such person of a grant or sannas for the same
or of such customary taxes, dues, or services having been renderedwithin twenty years for the same as have been rendered for similarlands being the property of private proprietors in the same districts.”The words italicized by me make it quite clear that no other proofis allowable for the purpose. If that is the true construction of theprovision of section 6, as I think it is, then section 5 of OrdinanceNo. 5 of 1852 above referred to has no effect as regards chenaswithin the Kandyan Provinces, because to hold that the law ofprescription applied to such chenas would be to contravene directlythe provision of section 6 of the Ordinance No. 12 of i840. Ifthat were intended, the legislation would have been more explicit.Mr. Jayawardene relied on the history of the legislation leading upto the Ordinance No. 12 of 1840, as disclosed in the judgment of SirAlexander Wood Benton in Babappu v. Don Andris.1 When theearlier Ordinance No. 5 of 1840—which in providing by section 1a summary remedy against encroachments on Crown property hadcontained no limit with regard to the period of possession by theprivate party—was referred to the Secretary of State, the LawOfficers of the Crown disapproved of its provisions, and advisedthat more regard should be had to length of possession and rightsof prescription. The Ordinance was accordingly disallowed, andthe Ordinance No. 12 of 1840 was passed instead. In section 1of the latter Ordinance, as it originally stood, provision was madefor possession for " thirty years or upwards,” beyond which thesummary remedy against a private person was not available. TheOrder in Council of August 11, 1841, which considered the periodof thirty years or upwards to be unreasonably long, cut down the
1 (1910) 13 N. L. R. 273.
( « )
period to “ five years or upwards.” Moreover, section 8 of the Ordi-nance No. 12 of 1840 gives a right to half-improved value to personswho have held uninterrupted possession “ for not less than ten normore than thirty years.” In view of these circumstances, Mr. Jaya-wardene contends that the Legislature intended to give effect toprescription by possession for thirty years and upwards. Accordingto him the period of thirty years was the same as the third part of acentury of the Roman-Dutch Law. I cannot accept this view. In myopinion the thirty years was, so to say, accidental, and was selectedonly as a reasonable period, and had no reference to the Roman-Dutch law of prescription. Indeed, at that date the Roman-Dutchlaw of prescription against the Crown by possession for a thirdpart of a century was not ^in mind of any one; that, as shownabove, was a much later discovery. It was said that in any casethe Ordinance No. 12 of 1840 inferentially provided that possessionfor thirty years should give absolute title to the possessor, seeingthat possession for less than thirty years gave to the possessor undersection 8 a right at least to half-improved value. It should be stated,however, that the Ordinance No. 9 of 1841, passed within twomonths of the Order in Council above referred to, declares thatnone of the provisions contained in section 8 of the OrdinanceNo. 12 of 1840, nor the provisions touching prescription containedin section 1, shall extend to any land referred to in section 6. Imay say, moreover, that I do not understand inferential legislationof the kind contended for, and I do not think it possible. It maybe assumed that, in deference to the opinion of the Law Officers ofthe Crown, the Ceylon Legislature did pay regard to rights arisingfrom possession, but the extent of such recognition must be foundwithin the four comers of the Ordinance itself. I may go further,and assume that the principle of prescription against the Crownby possession for a third of a century was inferentially included in ageneral sense in the Ordinance. But that does not affect section 6,as it specifies the only modes by which title to chenas in the KandyanProvinces can me established as against the Crown, and prescriptionis not one of them. The reason for this exclusion is a matter ofconjecture. It may be due to the fact that at that date, as appears'from the judgment of Sir Charles Marsfiall in Mudalihamy v. MolU-goda Adigar, referred to in The Attorney-General v. Punchirala,1 itwas thought that no prescription ran against the Crown in anycase, wherever the land might be situated. But it is needless tospeculate; we can only administer the law as we find it.
1919.
Db SamfayoJ.
The
Attorney-
Generate.-
Punchirala
The question referred to the Pull Bench is whether, on the trueconstruction of section .6 of th.e Ordinance No.- 12 of 1840, prescrip-tive title can be proved against the Crown in the case. of chenassituated within the Kandyan Provinces, and I have given reasonsfor ~ thinking it cannot. I may here shortly refer to a further
(1916) IS N. L: R. 152.
1919.
DxSaupato
J.
The
Attorney-General v.Punchirala
( 62 )
argument of Mr. Jayawardene, though it is not exactly relevant tothe question referred to the Full Bench, viz., that section 6 of theOrdinance is connected with, and is applicable only to, the summaryprooeedings provided by section 1. I do not think there is anygood ground' for this limitation, and, in my opinion, section 6 is ageneral enactment declaratory of the rights of the Crown to certaindescriptions of immovable property. Lawrie A.C.J. expressed anopinion to the same effect in The Attorney-General v. Wanduragala.1
For the reasons above stated, I would reverse the judgmentappealed against, and direct that a decree be entered in favour ofthe plaintiff for the land in claim and for Bs. 30 as damages, beingthe amount agreed upon in the District Court. As the plaintiffconsented to the trial of a false issue, I would give no costs of theaction to either side, but the defendants must pay the plaintiff’scosts of appeal.

Loos A.J.—t
am so entirely in accord with the conclusions arrived at by myBrother de Sampayo, before whom and myself the appeal wasoriginally argued, and with the . reasons stated in his judgment,which I have had the advantage of reading, that it is unnecessaryfor me to add anything.
In my opinion section 6 of the Ordinance No. 12 of 1840 specifi-cally indicates the only methods by which the presumption infavour of the Crown can be rebutted. . I agree to the order proposedby my Brother de Sampayo.
Appeal allowed.