UDURUWANA et al., Appellants, and GALAGODA (Basnayake Nilame), Respondent

066-NLR-NLR-V-50-UDURUWANA-et-al.-Appellants-and-GALAGODA-Basnayake-Nilame-Respondent.pdf


248
BASNAYAKE J.— Udurawana v. Galagoda
1948Present: Jayetileke S.P.J. and Basnayake J.
UDURAWANA et al., Appellants, and GALAGODA (BasnayakeNilame), Respondent
S. C. 288—D. C. Kandy, 1,772
Service (Tenures Ordinance—Paraveni nilakarayas—Services not commuted—Damages—Amount to be awarded—Section 25.
The remedy of a proprietor against a defaulting nilakaraya who hasnot commuted his services is an action for damages under section 25 of theService Tenures Ordinance. Such damages would include the amountstated in the register as the amount payable in lieu of services in additionto such actual damage as he might prove as a result of the default.
Appeal from a judgment of the District Judge, Kandy.
V. Perera, K.C., with C. Shanrmtganayagam, for the defendantsappellants.
H. W. Jayewardene, for the plaintiff respondent.
_Cur. adv. vult.
July 8, 1948. Basnayake J.—
The plaintiff-respondent (hereinafter referred to as the plaintiff) isand has been for the twenty-three years immediately preceding the dateof this action, December 12, 1944, the Basnayake Nilame of the NathaDewale at Kandy. The defendants-appellants (hereinafter referred toas the defendants) are sued on the footing that they are the paraveninilakarayas of the Natha Dewale and are the holders of the panguwaknown as the Ankumbure Migonkattu panguwa of 420 pelas sowingextent.
The plaintiff alleges that he is entitled to a sum of Rs. 1,025, but helimits his claim to Rs. 1,000. He computes his claim thus :—
Rs. c.
420 pelas at the rate of three shillings per pela on
the basis of 75 cents per shilling. .945 00
16 penumas at the rate of Rs. 5 per penuma . .80 00
025 00
In his computation of the value of the penumas the plaintiff erroneouslystates the amount as Rs. 90 whereas it should be Rs. 80.
The first defendant, the Kandy Rubber and Tea Estates Ltd., in itsanswer denied liability to pay the plaintiff’s claim and also claimed thebenefit of section 24 of the Service Tenures Ordinance. Of the other 28defendants, the 9th, 12th, 22nd, 24th, 27th and 29th defendants did notfile answer, and the plaintiff withdrew the action against the 1st, 5th,
BASXAYAKF. J.—Udurawana v. Galagoda
249
14th, and 15th defendants. The reason for the withdrawal of the actionagainst those defendants does not appear on the record. The otherdefendants, who filed answer, while admitting that they were paraveninilakarayas, denied the plaintiff’s claim and pleaded that they had paidthe commuted dues and performed the services up to 1944, and askedthat the plaintiff’s action be dismissed.
The learned District Judge gave judgment for the plaintiff in' a sumof Rs. 710 less Rs. 15 ‘80 against all the defendants save the 1st, 5th, 14thand 15th defendants in respect of whom the action was withdrawn. Heaccepted the plaintiff’s basis of calculation of three shillings for a pelaand Rs. 5 for a penuma, but in his computation he appears to have adopted50 cents and not 75 cents as the equivalent of a shilling. The presentappeal by the defendants is from that order.
It will be convenient if I first discuss the relevant provisions of theService Tenures Ordinance and next proceed to the question that arisesfor decision. The object of the Service Tenures Ordinance is, as stated inthe long title, to define the services due by the Praveni Tenant of Wihara-gama, Dewalagama and Nindagama Lands, and to provide for the Com-mutation of those Services. It provides for the appointment of Com-missioners (section 3) for carrying into effect the provisions of the Ordi-nance. They are authorised to notify all headmen, temple and ninda-gama proprietors to furnish them with lists of panguwas held by themwith an enumeration of the services in detail of the praveni pangus or togive oral testimony in regard to those matters (section 7). Within areasonable time after the expiry of the notice given under section 7,they are required to investigate all claims made to them after noticeto all parties concerned (section 8). They are required particularly todetermine—
(а)the tenure of each pangu subject to service in the village, whether
it be praveni or maruwena ;
(б)the names, so far as the same can be ascertained, of the proprietors
and holders of each praveni pangu ;
the nature and extent of the services due for each praveni pangu ;
the annual amount of money payment for which such services may
be fairly commuted at the time the registries are made ;
and this determination is declared to be final and conclusive as to thetenure of the pangus, the nature of the service due for and in respect ofeach praveni pangu, and the annual amohnt of money payment for whichthe services due for each praveni pangu may be fairly commuted at thetime those registries are made (section 9).
The Commissioners are also required to cause to be numbered andentered in a book of registry a list of praveni pangus in each village, thenames of the proprietors and tenants of each pangu, the nature andextent of the services due for each pangu, and the annual amount ofmoney payment for which such services may be fairly commuted at thetime the registry is made (section 10). Section 14 of the Ordinance givesany praveni nilakaraya a right to apply for a commutation of any serviceto the Commissioners. The Commissioners are empowered by section 15,
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BASNAYAK.E J.—'Udurawana v. Galagoda
after notice to the proprietor, to ascertain “ whether the services maystill be fairly commuted at the amount fixed in the registry, or whetherthey have risen or fallen in value, and to what extent ”, After ascertain-ing the amount the Commissioners are authorised to make an order thatthe service in respect of the pangu shall stand commuted for the annualpayment mentioned in the registry or for any other sum that the Cona-missioners may consider just or reasonable. Section 15 then declares :
“ The order so made under this section shall be final and conclusive andbinding upon all the proprietors and nilakarayas (even though they maynot be parties to the application, in that or any future proceeding,whether before the said Commissioners, Government Agent, or anyjudicial tribunal), as to the liability of the nilakarayas to pay commuteddues and not to render services for such pangu ; and all right to servicefrom the nilakarayas of such pangu shall thereupon for ever cease andbe at an end, and "the said nilakarayas shall be thenceforth liable to payto the proprietors, in equal half-yearly instalments, the dates whereofshall be fixed by the Commissioners or court, the annual amount ofmoney payment due for and in respect of the said services ; and suchcommuted dues shall thenceforth be deemed to be a head rent due to theproprietor for and in respect of the pangu, and shall be recoverable inthe manner hereinafter prescribed.”
The Ordinance (section 16) requires that the commutation made undersection 15 shall be entered in the register and the entry so made is the bestevidence of the nilakarayas to pay commuted dues and not to renderservices for their pangu. The functions of the Commissioners undersections 14, 15, and 16 are, from the day the Commissioners ceased tofunction, vested in the Government Agent of the district in which thepraveni pangu is situated.
A proprietor is entitled to recover damages against the holders of thepangu who have not commuted under sections 14 and 15 and who havefailed to render the services defined in the registry. The amount recover-able as damages is not only the sum for which the services shall havebeen assessed by the Commissioners for the purpose of perpetual com-mutation but such further sum as the Court shall consider fair andreasonable to cover the actual damages sustained by the proprietorthrough the default of the nilakaraya to render such personal services atthe time when they were due (section 25).
In the instant case it is not pleaded that there was, nor is there anyevidence of, an order for commutation under section 15 of the Ordinance.The proprietor is therefore entitled to claim not only the amount ofcommutation determined by the Commissioners under section 9 andentered in the registry under section 10 but also a fair and reasonablesum to cover the actual damages sustained by him through the defaultof the nilakarayas to render services when they were due. But theproprietor claims neither the amount entered in the registry under section10 as the annual amount of money payment for which such services mayfairly be commuted at the time the registry was made nor an amount tocover the actual damages sustained by him through the default of thenilakarayas to render service. He bases his claim on the entry appearing
BASNAYAKE J.—Udurawana v. Galagoda
251
in the registry under the heading “ Nature and Extent of ServicesIts translation in the document PI produced by the plaintiff reads :“ The service of this panguwa was originally to supply buffaloes for theploughing of the Nata Dewale Muttetuwa at Deyyannewela. Thepanguwa has been divided into sixteen shareholders. Each share payingthree shillings per pela. After the New Year the panguwa gives to theBasnayake Nilame the usual penum (16) according to the caste of thetenants of the 16 shares, namely, Welala give a boxful of sweets meatsand forty leaves of betel, Duray give a pingo of vegetables and fortyleaves of betel. Achari give an arekanut cutter and forty leaves ofbetel.”
It is apparent from the words I have quoted that the “ rate of 3 shil-lings per pela ” is not the annual amount of money payment for which theservices may be fairly commuted at the time the registries were madewithin the contemplation of section 9 (d). Nor is there any indicationthat the rate of 3 shillings per pela is a rate of commutation of services.The heading under which and the context in which the words occur seemto suggest that the payment in question was a part of the services inrespect of the panguwa at the time the Commissioners held their inquiry.Perhaps an examination of the proceedings of the Commissioners in caseNo. 65 Kandy 464 referred to in the document PI will throw some lighton this matter which is at present obscure. The currency of the Islandwas altered from pounds, shillings, and pence to rupees and cents witheffect from January 1, 1872 (vide Ordinance No. 2 of 1882). The dateon which the register relating to the Ankumbuie village was made doesnot appear from the documents produced or the evidence of the plaintiff,but the fact that the annual payment in lieu of services is stated inrupees and cents may be taken as an indication that it was made afterJanuary 1, 1872. It is unlikely that the Commissioners while expressingthe amount of commutation under the appropriate heading in rupees andcents would have gone on to express a rate of commutation under theheading " Nature and Extent of Services ” in a currency that had ceasedto be recognised for all revenue purposes and in all Governmenttransactions.
– The submission of learned counsel for the appellants that the claim ofthe plaintiff is untenable in its present form is entitled to succeed. Heconceded that a proprietor’s remedy against a defaulting nilakaraya wasan action for damages as provided by section 25 of the Ordinance, and Ihave so held in the earlier part of my judgment. In the assessment ofthis damage the Court has power, as I have stated before, to award notonly the sum for which the services have been assessed by the Commis-sioners but such further sum as it shall consider fair and reasonable tocover the actual damages sustained by the proprietor through the non-performance of the services by the nilakaraya. Theplaintiffhasmadenoclaim for damages, nor is there evidence of the actual damages sustainedby the plaintiff. The form of the plaintiff’s pleadings and the way inwhich the case has been presented do not give this Court the freedom toaward the plaintiff any sum whatsoever in respect of his present suit. Itjs a well recognised rule that it is absolutely necessary “ that the
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BASNAYAKE J.—XJdurawana v. Galagoda
determinations in a cause should be founded upon a case either to befound in the pleadings or involved in or consistent with the case therebymade ”. l
In view of my finding that the remedy of a proprietor against a default-ing nilakaraya is an action under section 25 of the Ordinance it is necessarythat I should discuss the words “ the sum for which the services shall havebeen assessed by the Commissioners for the purpose of perpetual com-mutation ” therein, as it appears from the case of Medhankara Istaweerav. Sitppramaniaw. Chettiar et al.2 that it was argued in that case that theword “perpetual” indicated that the proprietor was not entitled toclaim in an action under that section anything more than the amount ofmoney payment in lieu of services determined by the Commissioners undersection 9 (d) of the Ordinance. Such an interpretation would have the -effect of giving the determinations under section 9 (d) the force of adetermination under section 15. -The scheme of the Ordinance clearlyshows that it was never intended that a determination under section 9 (d)should have the same force and effect as a determination under section 15.
The words “ holders of any praveni pangu who shall not havecommuted ” in section 25 clearly excludes those who have commutedunder sections 14 and 15 from its ambit. The words “ perpetual com-mutation ” cannot therefore refer to the annual amount of moneypayment determined under section 15, and can therefore only refer to thesum for which the services have been assessed by the Commissioners undersection 9 (d). That assessment is perpetual in the sense that it is final andconclusive as to the amount of money payment for which the services inrespect of any particular pangu may be fairly commuted at the time theregistries were made. It appears from section 25 that that sum is a basicfigure which the proprietor is in any case entitled to claim in the eventof non-performance of services by a nilakaraya. The words “ not onlythe sum for which the services shall have been assessed by the Com-missioners but such further sum as it shall consider fair and reasonableto cover the actual damages sustained by the proprietor ” to my mindbring out the fact that the amount fixed under section 9 (d) is in the natureof a basic sum. This concept is expressed by the words “ perpetualcommutation ”.
The Ordinance is quite clear that a proprietor is not confined to thebasic or perpetual commutation but he is entitled to claim,in addition,the actual damages sustained by him. In the case of MedhankaraIstaweera v. Suppramaniam Chettiar et al. (supra), Heame S.P.J. observes :“ The registers are a guide and no more than a guide, though they may,in the absence of evidence, provide the only basis of assessment.” Heapparently bases his opinion on that of Pereira J. in the case of YatawaraDisawa v. Lekamalage et al.3 wherein he says: “ The Court may at itsdiscretion call upon the proprietor to prove the actual damage sustainedby him and refuse to be guided by the register.” I find myself unable togive my unqualified assent to either of those propositions in so far as theyare capable of the interpretation that the amount stated under section 9 (d)
1 Per Lord Westbury, 11 Moores I. A., p. 7 at p. 20—Eshenehunder Singh v. Sha-
machum Bhutto and others.
* 41 N. L. R. 329
* 16 N. L. R. 14.
Brarnpy Appuhamy v. Gunasekere
253
is reducible in assessing damages. Section 25 cle.arly states that inassessing the damages the Court may not only award the sum mentionedin the register but increase that sum by the amount of actual damagesfound by the Court to have been sustained by the proprietor. In assessingthe actual damage the Court is free to award more than the amountstated in the register by way of further actual damages. But neither thescheme of the Ordinance nor the language of section 25 gpves the Courtthe liberty to reduce the amount stated in the register under section 9 (d).It has to determine on the evidence before it the actual amount of damagessustained by the proprietor through the default of the nilakaraya. Thewords “ such further sum ” indicate that the damages so determined arein addition to the amount stated in the register as the sum payable in lieuof services. I read section 25 as entitling the proprietor to the amountmentioned in the register even if he is unable to prove actual damages.If he proves actual damages he will get the amou it of such damages inaddition to the mount stated in the register as the amount payable inlieu of services. The amount determined by the Commissioners undersection 9 (d) is fixed except where it is altered under section 15. Power toalter the amount stated in the register is taken only under section 15where the Commissioners are empowered to revise the commutation.Those who have not commuted under section 15 are bound to renderservices ; those who have, are not. A nilakaraya who has not commutedunder section 15 and who. fails to perform his services is liable in damages,the mode of assessment of which is stated in section 25 which I haveexplained above. I should not omit to mention that the commuted duesunder section 15 are also recoverable by action in the same way as damagesfor non-performance of service. In such a case-there is no question of•damages, because that section expressly declares that after an orderthereunder “ all right to service from the nilakarayas of such pangushall thereupon for ever cease ai^d be at an end ”. Thereafter thecommuted dues are “ deemed to be a head rent due to the proprietor forand in respect of the pangu ”.
For the reasons I have stated the appeal is allowed with costs nd theplaintiff’s action is dismissed with costs.
-Jayetileke S.P.J.—I agree.
Appeal allowed.