044-NLR-NLR-V-18-THE-ATTORNEY—GENERAL-v.-PUNCHIRALA.pdf
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1915.
Present: Wood Benton C.J.
THE ATTORNEY-GENERAL v. PUXCHIBALA328—G. R. Atmradhapura, 7,520.
Chena lands in Kandyan Province—Prescriptive title cannot be establishedagainst the Crown.
Prescriptive title cannot be established against the Crown in thecase of chena lands situated within the Kandyan Provinces.
fjy HE facts appear from the judgment.
van Langenberg, K.G., S.-G., and V. iM. Fernando, C. Gfor■ plaintiff appellant.—The Commissioner has found as a fact that theland in question is chena land. The only proof of its being privateproperty is indicated in section 6 of Ordinance No. 12 of 1840. Inthe absence of such proof the land must be “ deemed, " i.e., takenconclusively to be the property of the Crown.
Counsel cited 5 N. L. R. 98; 161—C. R. Kegalla, 5,024 (19-6-05);333—D. C. Batnapura, 1,309 (5-4-05); D. C. KegaUa, 3,129(12-9-13).
The translation of deed D 2 is incorrect, and the defendant hasnot even paper title to the land in question.
According to the Kandyan law prescriptive title could not be setup against the King. 6,418—Agent's Court, Batnapura (S. C. M.Nov. 1, 1833).
J. S. Jayeiuardene, for the defendant, respondent.—The finding ofthe Commissioner as to the nature of the land is not correct. Theland is forest and not chena land. Even if it is chena land, it isnot shown to be cultivable only after intervals of years. The word'* deemed ” means “ presumed.
Counsel relied on 268—C. R. Panwila, 273 (30-11-93); 295—R.Gampola, 1,094 (14-12-93); 4 N. L. R. 135: N. L. R. 226. Inthe last-mentioned case it has been held that prescriptive .title canbe acquired in the Kandyan Provinces as against the Crown, thusover-ruling the judgment of Marshall C.J. It is too late now toquestion the correctness of the translation of deed D 2.
The Ordinance No. 12 of 1840 does not expressly take away theright to acquire a title by prescription as against the Crown.
Cur. adv. vult.
February 19, 1915. Wood Renton* C.J.—
The plaintiff, the Attorney-General, sues in this case for a declara-tion of title to a land, Weeragahahena, in the district of Anuradhapura,
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as the property of the Crown. The defendant claims it under a1915*
deed of transfer No. 2,142 dated July 24, 1875 (D l)v from Lokuwood
Bandars Mahatmaya, who purchased it by deed No. 870 dated Rbntoit C.J.December 23, 1867 (D 2), from Pinhamy, and also by prescriptive Thepossession. At the original trial the learned Commissioner of Attorney-Bequests gave judgment in favour of the defendant, holding that the PutiMraialand was included in his deeds, and also that he had establishedtitle to it by prescription. The Attorney-General appealed. Theappeal was argued before me on November 4, 1914, and I then sentthe case back for further inquiry and adjudication on the questions:
whether the laud in suit was chena or forest land; or (2) whetherit- was chena; land that has become forest land, and if so, at whatdate ? At the further inquity Mr. Lushington and Mr. Sargent ofthe Forest Department, and Air. Muttucumaru, the Chena Muhan*diram. within whose district the land is situated, were examined onbehalf of the Crown. No additional evidence was called for thedefence. The Commissioner of Bequests held that the land inquestion was chena, that it came, therefore, within the scope ofsection 6 of Ordinance No. 12 of 1840, and that under that sectionprescriptive title cannot be established against the Crown in thecase of lands situated within the Kandyan Provinces. He, therefore,gave judgment in favour of the plaintiff with costs. The defendantappeals.
I shall dispose at once of several points of comparatively minorimportance which were argued before me on the hearing of theappeal. 1 see no mason to differ from the findings of the learnedCommissioner of Bequests at the further inquiry. The land istherefore chena land. Some question was raised by counsel forthe Crown as to the correctness of the English translation of thedeed D 2. But the Sinhalese Interpreter Mudaliyar of the SupremeCourt has compared it for me with the original, and assures me thatthe translation is correct, and that the deed purports to conveyto Loku Bandars Mahatmaya, not merely the land particularlydescribed in the latter part of the third paragraph, but the wholevillage mentioned in the earlier. The defendant has thus papertitle to the land. I do not think that the evidence is strong enoughto establish prescriptive title, although the fact that the paper titlein in the defendant, of course, adds weight to the viva voce evidenceof possession. But I will assume for the purposes of this judgmentthat the defendant and his predecessor in title have possessed theland in a sense which would ordinarily give them the benefit of theprovisions of section 8 of the Prescription Ordinance, No. 22 of '
1871. We are, therefore, brought face to face with the questionwhether by prescription a title under that section can be set upagainst the Crown in the case of chena lands within the KandyanProvinces; Apart from authority, the answer to this questionwould appear to me clearly .to be in the negative. Section 6 of
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idSSnOrdinance No. 12 of 1840 provides that “ all chena and other
Woonlands which can be only cultivated after intervals of several years shall.
JRbnton* OX if the same be situate within the districts formerly comprised in^XfieKandyan Provinces (wherein no thombo registers have been
heretofore established), be deemed to belong to the Crown and not toPunehiralaproperty of any private person claiming the same against tinr
Croton, except upon proof only by such person of a sannas or grantfor the same, together with satisfactory evidence as to the limitsand boundaries thereof, or of such customary taxes, dues, orservices having been rendered within twenty years for the same ashave been rendered within such period for similar lands beingthe property of private proprietors in the same districts."
The natural interpretation of this language is that no title can beset up against the Crown to lands of the class dealt with in thesection save a title by sannas, or by grant, or by payment ofcustomary taxes, dues, or services within the prescribed period.The word *' deemed, ” as has often been pointed out by this Court,has not an invariable meaning. Sometimes it signifies ** presumed, ”at other times it means " shall be taken conclusively to be. " Butthe force of the clause in section 6, which I have italicized, dependsnot solely nor mainly on the use of the word “ deemed, " but on theexpress limitation of the kinds of title that can be set up to cheim-lands within the Kandyan Provinces which is introduced by thewords “ except upon proof only, " and also on the mere presumptioncreated by .the rest of section 6 as regards forest, waste, unoccupied,or uncultivated lands, and chena lands in all other districts in theColony.
Considerable light is thrown on the interpretation of section 6 ofOrdinance No. 12 of 1840 by an unreported decision, unearthed bythe industry of the Solicitor-General and Mr. V. M. Fernando, ofSir Charles Marshall C.J. in the case of Chandereseke MudtanselayMudalihamy v. Molligodda Adigar1 in 1833. The facts are notstated in the judgment itself, and the record cannot be found. Buta copy of the proceedings has been incorporated in the record nextin number (No. 6,419) of the same .tribunal, viz., the Agent’s Court,Ratnapura. From this record it appears that the property indispute, a village Milillewitiya, had originally been the paraveniproperty of the plaintiff’s family, had in great part been acquiredby .the Megastenna Adigar, either, as the plaintiff alleged, by force,or, according to the defendant, by purchase, had been confiscated bythe last King of Kandy, and after his deposition had been forfeitedto the Crown, through whom the defendant claimed. The Agent'sCourt dismissed the plaintiff’s action, and this judgment was affirmedby the Supreme Court on appeal. " Any title by prescription,%bid Sir Charles Marshall, " which the defendant could set upmust be against the Government, all confiscated property having
1 (1833) S. G. Mins., November 1, 1833; No. 6,418, Agent's Court, Hatnapura.
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devo} ett.^ the Cro«u. But no. prc^iptiun runs against the King 1915.oitb j as regards hi.* general- prerogative or as respects the Kandyan ^oouPro^lamation oi PECSeriptlon. Whatever part, therefore, of the RbntokC.J.village still rezrn im taconceded is the properly of Government, and ^
to tie (iovemm nt consequently must *he plaintiff's application Attorney-MGeneral v.
be Shade.Pimohirala
fJhis decision perhaps. explains (he distinction drawn by section6 (if Ordiwutcc No. 12 of 1810 between lands in the KandyanPnfvincefc and .those utuated in ^ther districts, on .the ground thatthe former had been tie property of the Kings of I^andy, from whomall tenures were derm d. and to whose rights the British Sovereignsucceeded.
The authorities on the point before us are not, however, unani-mous, and if I had found it necessary to do so, 1 should have referredthe matter to a bench of three Judges in order to have the rule oflaw settled once and for all* It appears to me, however, .that thebalance of judicial opinion, including two decisions by two judges,is on the side of the interpretation which I have already put onsection 6 of Ordinance No. 12 of 1840. I propose, therefore, todecide the question myself. If my decision be accepted as sound,the difficulty will be at an end. If it be regarded as doubtful, it willbe quite a simple matter to s.ecuve an early opportunity of obtaininga binding decision on the point.
In 268—C. E. Panwila, 278,1 and in 295—C. E. Gampola, 1,094,3Liiwrie JM while regretting that the state of the business of the Courtmade it impossible to obtain a Full Court judgment on the point,held .that the defendant in each case could establish, and hadestablished, prescriptive title against the Crown to the land in suit.
In Corea Mudaliyar v. Punchirala3 he expressed the same viewobiter. It may be noted in passing that the judgment in this casedoes not seem to warrant the statement in the headnote that thewords “ chenas and other lands which can only be cultivated afterintervals of several years ” in section 6 of Ordinance No. 12 of 1840mean lands which were so cultivated at the date of the passing of theOrdinance. The passage on which this portion of the headnote isbased is as follows:** It was argued that this was not, properly
speaking, a chena, because chenas are defined in the OrdinanceNo. 12 of 1840 to be land which can only be cultivated after intervalsof several years, and that there was evidence here that .the soilis fertile, and that coconuts and other permanent food-producingtrees might be planted. The words * can only be cultivated afterintervals of severed years * mean (I think) have, hitherto been socultivated. ”
It is obvious that Lawrie J* here used the word “ hitherto ” onlyfor the purpose of rebutting the contention that the land could not
S. G. Mins., November SO. 1893.3 S. C. If in*., December 14. 1893.
« (1899) 4 .V. h. n. m.
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be ohena because there was evidence that it was fertile, and notWoou with any reference to jbhe point of time at which its cultivationRbnton C.J. commenced. In Ran Menika v. Appuhamy 1 Lawrie A.C.J. and•piie Moncreiff J. held that possession of lands in districts formerly withinAttorney- the Kandyan Provinces for one-third of a century gives an absolutePtmdiirdfo title to .tbe possessor. This decision is, of course, the sheet anchoron which .the defendant in the present case relies. Put its authorityis greatly weakened by .the facts that in Attorney'General v. Wandura-gala 3 the same two Judges held that, in the case of such lands, thepresumption in favour of the Crown is rebuttable only by proof of agrant by the Crown or by payment of taxes, and that Lawrie A.C.J.in Ran Menika v. Appuhamy 1 refers to this decision with approval.The weight of subsequent decisions, so far as they go, favours theview taken by Lawrie A.C.J. and Moncreiff J. in Attorney-Generalv. Wanduragala.s In 161—C. R. Kegalla, 5,024, 3 Pereira J., citingAttorney-General, v• Wanduragala 2 with approval, observed that inthe case of chena lands in the Maritime Provinces section 6 ofOrdinance No. 12 of 1840 creates a mere presumption, but thatchena lands in the Kandyan Provinces are to be deemed to belongto the Crown, unless a sannas is produced, or the customary taxeshave been paid. In 383—D. C. Ratnapura. 1.3004 Sir AlfredLascelles A.C.J. and Sir John Middleton J- raised the questionhow far the decisions of Lawrie J. in 268—C. R. Panwila, 273/'and 295—C. R. Gampola-, 1,094* are consistent with laterauthorities.
In D. C. Kegalla, No. 3,129/ Pereira JM with whom Ennis J.concurred, gave what I cannot but regard as an express ruling inthe same sense as that of Lawrie A.C*J. and Moncreiff J. in Attomey-General v. Wanduragala.2 We have therefore two decisions, eachof two Judges, on the side of what I hold to be the natural andproper interpretation of section 6 of Ordinance No. 12 of 1840. Onthe other side there are various decisions of Sir Archibald Lawrie.alone, and the decision of Moncreiff J. and himself in Ran Menika v.Appuhamy,1 in which case, however, Sir Archibald Lawrie expressesthe view that Attorney-General v. Wandura gala 2 was rightly decided.In that stats of things, and holding as I do that the meaning of thesection in question is unambiguous, I think that I am at. liberty toconstrue it for myself. T hold that prescriptive title to chena landwithin the Kandyan Province cannot be set up against the Crown.
The appeal is dismissed with hosts.
Appeal dismissed.
' {1901) 5 N. L. R. 226.*8.C.Mine.,April 5, 1906.
{1901) 6 N. L. R. 98.5S.C.Mins.,November 80, 1893,
8. G. Mine., June 19, 190o.*8.C.Mins..December 14, 1393.
7 8. 0, Mini.. September 12, 1013.