123-NLR-NLR-V-22-UNNANSE-et-al.-v.-DE-HOEDT-et-al.pdf
( 406 )
1920.
Present: Bertram C.J. and De Sampayo J.
UNNANSE et al. v. DE HOEDT et a*.
Ii3—D. C. Kandy, 25,911 F.
No prescription against Croton as to chena land in the Kandyan Pro*vinces—May one person claim by prescription chena land inKandyan Provinces as against another ?—Intermittent culti vation.
The plaintiff claimed a piece of land, which was originally chenaland; situated in the Kandyan Provinces, relying on prescription.
Held, that the fact that there is no prescription against the Crownin the Kandyan Provinces is no answer to the plaintiffs claim asagainst the defendant, who was a private individual.
Where two parties are at issue on a question of prescription, theclaim of the person relying on the prescriptive title cannot beousted by showing that the real title is in a stranger, who is not aparty to the action.
A person may acquire title to a chena by the intermittent cultiva-tion, which is appropriate to a chena.
r I THE facts appear from the following judgment of the DistrictJudge (F. R. Dias, Esq.):—
The dispute in this case is as regards the title to the lot marked B inMr. Keyt’s plan H K, dated October 27,1918. The plaintiff, who is theBuddhist priest of the Kaluwana Vihare in the neighbourhood of thisland, claims it on behalf of his vihare as comprising three contiguousallotments of land (whose extent is not disclosed), which for the la$tseventy-five years had been in the continuous and undisturbed possessionof himself and his predecessors in office. It is alleged that the second andthird defendants, who in January, 1917, took the landfor chena cultiva-tion from the plaintiff, fraudulently joined the first defendant and gavehim the landowner's share of the produce, and permitted thefirst defend-ant in October,] 917, to take possession of the land and plant it with rubber.
The first defendant claims the lot as part of his Kaluwana estate ofsome 60 odd acres which he bought from one Van Reyk in 1904, and thesurvey plan, annexed to his predecessor’s title deeds, admittedly coverswhatis nowin dispute. The third defendant supports him, but the seconddefendant .admits the plaintiff’s allegations, and says that the firstdefendants conductor forcibly took away the landowner’s share of thecrop. Jt is not difficult tos^ethatthe second defendant is only a creatureof the plaintiff, who had been designedly made a defendant in the caseto support the plaintiff’s claim by an admission of this kind. The thirddefendant disclaims title, and denies the right of the plaintiff and thathe was ever his tenant.
Rightly or wrongly thefirst defendant is in possession, and it isfor theplaintiff to prove a superior title. He commenced this action in hispersonal capacity, but, after answer was filed, a trustee was nominatedforhis vihare, and added as a party plaintiff.
{The simple question we have to consider is whether this land everformed part of the vihare property. The best evidence of that is theGovernment plan of lands claimed by temples and settled by the
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Commissioners under the Ordinance No. 10 of 1850. Thelands then-inthe possession of, or claimed by, the Kaluwana or Mullegama Viharewere so settled, and the plan No. 60,963 (D 2) of the year 1864 showswhat they were. It is proved and admitted that the land now in olaim ,is outside that plan.
What then is the plaintiffs title ? It is said that he and his prede-cessors in office for the last seventy-five years or more have been incontinuous possession and enjoyment of the lots which had been dedicatedto the vihare by its “ dayakayas.’*
This is nothing but a bare statement, unsupported by any deed orother document. Who were these “ dayakayas,** and what right havesuch persons to make presents of cliena lands which belong to the Crown*unless covered by a “ Sannas ” or grant ?
In order to support a title by prescription tc any land, a person musthold it continuously for te:i years or more, and do acts' indicative of apermanent occupation by him, as, for instance, by making a permanentcultivation on it, or by building a house and living there. The plaintiffor hie predecessors did no such things, and the utmost that can be saidis that in 1862 the plaintiff's tutor gave these three lots on a plantingagreement to one Amnasale.ni Kangany for a term of six years for thepurpose of planting coffee, end dividing the lands equally between them-selves at the end of the- six years.
Arunasalam planted the coffee and possessed the lands for about twentyyears and died, and one Muttu Karuppen.had possession after him,paying plaintiff a small ground rent till about 1878. Coffee then diedout, and the lands lapsed into jungle, and were only used for chenacultivation since then.
These lots are on the face of a big hill, and form parts of a vast tract.
It seems impossible now to fix the identity of what the plaintiff’s tutorprofessed to lease out to Arunasalam in 1862, and even if they really werethe lands now in dispute, their subsequent abandonment made theplaintiff and lus predecessor forfeit any rights that may have commencedto accrue to them ii? 1862.
It is admitted by plaintiff that for the last forty years at least theselands have been jungles, and during the last thirty years they had beenonly chenaed for “ kurakkan ” at intervals of four or five years. Even ifwe assume that this evidence is true, and that the cultivations were madeat the instance of the plaintiff, no title of prescription can arise there-from. Except by prescription the plaintiff has no title whatever..
It is not necessary to consider the first defendant’s title. It may bethat he has no title at all, and that his old plan wrongly includes landswhich did not belong to bis predecessor.
Rightly or wrongly he claims all the land covered by that plan, andhe is in possession, and, until some one can prove a better title to anyportion, he is entitled to stay whereJie.is. The plaintiff has certainlynot proved any better title to the portion B now in dispute, and thefraudulent attempt he has now made in collusion with the seconddefendant is too transparent.
I dismiss the action of the plaintiff and added plaintiff with costs asregards the first and third defendants, and order the second defendantto pay bis own costs.
Keuneman, for the appellants.
.4. St. r. Jayawardene (with him Croos-Dabrera)^ for respondents.
1920..
Unnans&v. Dt Hoedt
( 408 )
1980. December 1,1920. Bertram C.J.—
Utmange In this case we have come to the conclusion that the appeal«. De Barit Bhould be allowed. The only point of any doubt was that ofidentity. I think that Mr. Keuneman has satisfied us that the landreferred to in the survey made by Mr. de La Motte in 1918 is theland in dispute. I do not attach so much importance to the con-tentious boundaries mentioned by both sides and appearing on theplan as to the evidence of the witnesses, some of whom say that theyknew the land all their lives. I do not think that any inquiry needbe made on the subject. I cannot see that there is any room forany real doubt that everybody understands what the land is. Norcan I see that there is any doubt that this land is identical with theland mentioned in the document, which is the basis of the plaintiff’sclaim. According to the case put forward by the plaintiff, the templehas had control of this land in a greater or less degree from theyear 1862. Aplanting voucher isproducedfor that year, The landwas opened up in oofiee, and down to the year 1878 was cultivated.After . 1878 it lapsed into jungle, and, according to the evidencetendered by the plaintiff, it was cultivated at intervals of four orfive years in ohena cultivation. The learned District Judge seemsto me to accept this account of the matter. , Nor do I think that whathe says is weakened by a subsequent expression in his judgment,where he says: “ Even if we assume that the evidence is true.”Accepting this evidence, we, then, must ask ourselves what is the-effect of it. The learned Judge thinks that there is good reason tobelieve that the land was originally chena, and that if the Crownwere to intervene and claim this land, there would be no answer tothe claim of the Crown, inasmuch as there is no prescription againstthe Crown in the Kandyan Provinces. That may very well be.But the Crown is not a party in this'case. We are trying a claimby one individual against another! The plaintiff, as plaintiff, isentitled to rely upon the second part of section 3 of the PrescriptionOrdinance, No. 2 of 1871. As against the defendants, I see noreason why he should not’ set up this prescriptive title. No caseis cited to show that where two parties are at issue on a question of.prescription, the,claim of the person relying on the prescriptivetitle can be ousted by showing that the real title is in a strangerwho is not a party to the action. That question has been discussedin the case of Raki v. Lebbe,1 although the circumstances in thatcase are not very much akin to those of the present. Apart fromthat question, the only other question raised is as to whethera person may prescribe by virtue of the intermittent cultivationwhich is appropriate to chenas. I do not! think that that can beseriously questioned. I may refer as Authorities, justifying theview that, in the case of rights, which are in their nature periodical,
i
1 (1912) 16 N. L. R.'l38.
it is possible to prescribe by intermittent user, to Appurala v.Dawson,1 and also to a recent judgment of my brother De SampayoSubramaniam v. Marimuttu.B There is also an nnreported ,oase,
0. Colombo, No. 23,617,® which supports the same contention.As we consider that the identification of the land is satisfactorilymade out, and as the view expressed by the learned Judge on thelaw would appear not to be in accordance with the authorities. Ihave referred to and the principles 1 have enunciated, I am ofopinion that the appeal must be allowed, with costs; in both Courts.
1920.
Behtkam
C.J.
Vnnante
v. De Boedl
Du Sampayo J.—I agree.
Appeal allowed.