H. N. O. FERNANDO, C.J.—Scenilhamby v. Ahamadulebbe;i97i '' Present: H^N, G. Fernando, C.J., and Tliamotheram, J.
SEENITHAMBY, Appellant, and U.; AHAMADULEBBE,
,S.C. 305,65 (F)—D. O. Kalmunai, 133[L
'Land Development Ordinance—Permit issued thereunder—Subsequent cancellation—• Proof. '
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In this action for declaration of title to two allotments of Crown land, theplaintiff relied for his title on a permit dated 7th September 1954 is3U0d tohim .by the Gal Oya Development Board. The defendant relied on a permitdatod 24th Juno 1900 issued to him for the same allotments, also, by the Gal*! ! Oya Development Board.
Held, that strict proof of tho due cancellation of the permit issued to the. plaintiff was nccossary before his title could be defeated.
Appeal from a judgment of the District Court, Kalmunai.
. H. TV. Jayewardene, Q.G., with E. A. G. de Silva and S. S. Basnayake,for the defendant-appellant.
: G. Ranganalhan, Q.G., with A. R. Mansoor and K. Kanakaratnam,for the plaintiff-respondent.
Cur. adv. vult.
. March 21, 1971. H. N. G. Fernando, C.J.—
‘ This was an action by the plaintiff for a declaration that he is entitledto two allotments of Crown land bearing Nos. 47 and 47A in Colony 7Samanturai Pattu, Amparai District, and for the ejectment of the
' The plaintiff relied for his title on a permit PI dated 7th September1954 issued to him for these allotments by the Gal Oya DevelopmentBoard. The' defendant, who admitted!}' was in possession of theseallotments at the time of the institution of this action, relied on a permitD1 dated 24th June 1960 issued to him for the same allotments, also by
tho Gal Oya Development Board.
The decision of the action turned on the question whether the permitPI had been duly cancelled prior to the grant to the defendant of hispermit dated 24th June I960. On this question the learned DistrictJudge held that it had not been proved that the permit PI had been dulycancelled; decree was accordingly entered in favour of the plaintiff.
H. 2r. G. FKRXANDO, C.J.—Sccnithainby v. Ahamadulebbt
The defendant called a witness, one Amunugama, who had signed thopermit D1 in I9G0. This witness stated in evidence that he had earliersigned an order under tHe Land Development Ordinance cancelling thepermit PI. According to him, the office copy of the order of can eliationhad been lost, and on this ground the defendant sought to rely on his oraltestimony as to the making of the alleged order of cancellation.
The learned trial Judge does not appear to have been satisfied withthe evidence of Amunugama on both these points. Furthermore, heheld that even if Amunugama had signed an order of cancellation, ithas not been proved that Amunugama had authority from the Gal OyaDevelopment Board to make or sign such an order.
Having heard the arguments of Counsel for the appellant I am unableto say in appeal that the learned Judge should necessarily have acceptedthe evidence of Amunugama or have presumed that a due order ofcancellation must have preceded the issue of the permit Dl. Thejudgment and decree under appeal have therefore to be affirmed.
An unusual feature of this case is that because the defendant failed toadduce satisfactory proof of the due cancellation of the permit PI,the plaintiff has to be declared entitled to possession of two allotments ofCrown land, and the defendant has to be ejected therefrom despite hisbeing the holder of the permit Dl issued on behalf of the Crown. Inthe result, the plaintiff will under the present decree be placed in possessionof Crown land, although his permit for that land may in fact be nolonger valid. Moreover it does seem most unfortunate that the defendanthas to be ejected from these allotments which he has probably possessedand cultivated for a long period.
According to the evidence of Amunugama, the responsibility for theadministration of the Land Development Ordinance in the Gal Oja areawas restored to the Government Agent when the Gal Oya DevelopmentBoard ceased to function under that name. Apparently at that stagethe files relating to these allotments were transferred from the Board’soffice to the Kachcheri. If these facts be correct and if the files orrelevant papers were misplaced in consequence, the defendant’s inabilityto adduce strict proof of the cancellation of the permit PI may havebeen due to causes be3'ond his control.
I desire accordingly to make it clear that if the true position be thatthe permit PI was duly cancelled, the decree in this action will notpreclude the authorities administering the Land Development Ordinancefrom taking such action as they may consider expedient to eject theplaintiff from these allotments, or from restoring possession to thedefendant by the issue to him of a fresh permit.
The appeal is dismissed with costs.
Thamotheeam, J.— I agree.
V. SEENITHAMBY, Appellant, and U. AHAMADULEBBE, Respondent