105-NLR-NLR-V-62-C.-H.-MATILDA-PEIRIS-Appellant-and-C.-M.-CLARA-FERNANDO-and-another-Re.pdf
534
Matilda Pciris v. Clara Pcrnando
[In the Pihvy Council]
1961 Present: Lord Keith of Avonholm, Lord Denning, Lord Morris ofBorth-y-Gest, Lord Hodson, Mr. L. M. D. de SilvaC. H. MATILDA PEIRIS, Appellant, and C. M. CLARAFERNANDO and another, Respondents
Privy Council Appeal, No. 22 of 1959jS. C. 346—D. C. Kegalle, 6269
1Che.no land in Handy an Provinces—Title in Crown—Hei vindicatio action bcLween-parlies other than Crown—Proof of prescriptive possession for not less than tenyears nor more than thirty years—Value of “ milage title ”—Requirement ofproof of j)hysical possession—Crown Grant—Publicity of investigation precedinggrant—Grown hands Jincroachmeixts Ordinance No. 12 of 1840 (as it originallystood), ss. 0, 8.
J±P2>ellute Court—Circumstances when it may interfere on findings of fact of trialJudge.
In an action rei vindicatio in respect of land to which sections 6 and 8 of theCrown Lands Encroachments Ordinance No. 12 of 1840 (os it originally stood)wore applicable, the plaintiff claimed prescriptive title on a chain of deedsfrom vendors who had no title as the title was in the Crown. The Crown wasnot a party to the action. Tho plaintiff’s caso was that the land was firstplanted in 1927 and before that it was jungle or chena. Although it wascontended by tho plaintiff that from 1927 tho plaintiff’s predecessors in thechain of title wore in possession till somewhere about 1946 when tho defendantswrongfully encroached on tho land, tho plaintiff failed to establish physicalpossession and it was found that the story of continuous possession from 1927was untrue.
Tho caso for tho defendants was that there wore chains of title which togethercovered tho land in question and reached down to tho 1st defendant prior to1930. It was not argued that they conferred more than village title. Onan application made in January 1929 to the Government Agent of KegalleDistrict, aftor all the formalities and publicity which used to accompany suchapplications had been complied with, tho 1st defendant was granted a CrownGrant dated tho 7tli August 1930. Plaintiff’s predecessors in title did not makeany claim to the land at tho investigation which preceded the Crown Grant.It was tho defendant’s caso that for some time before tho Grant and fromtho dato of tho Grant up to date of tho present action she was in possession.
Held, (i) that inasmuch as the plaintiff failed to establish physical possessionher case failed whatever might be tho position of tho defendants. A chainof deeds which do not confer inoro than villago title are, in appropriate cases,of ovidentiary value to supjiort evidence of acts of physical possession butwithout the latter they are useless. “ Villago title ” is a loose term for some-thing which contains no element of actual title.
(ii) that tho failure of tho plaintiff’s predecessors in titlo to make a claimthoinsolvos or to resist tho 1st defendant’s application for a Crown Grant in1929 suggested tho inference that they wore not in possession of tho land.
Held further, that tho Appellate Court is entitled to interfere with tho findings•on facts of the trial Judge if they are based not so much on credibility of witnessesas on wrong inferences from documents.
JIE. L. M. D. DE SILVA-—Matilda, Peiris v. Clara Fernando
535
i^^-PPEAL» from a judgment of the Supreme Court.
Stephen Chapman, Q.C., with Ralph MiUner, for the plaintiff-appellant.
E. F. N. Ghraiiaen, Q.C., with Walter Jayawardena, for the defend ants-respondents.
Cur. adv. wilt.
JFebruary 13, 1961. [Delivered by Mr. L«. M. D. de Selva]—
The appellant instituted this action against the respondents in theDistrict Court of Kegalle for a declaration of title to twenty-eight parcelsof land set out in two Schedules, eighteen in Schedule A (hereafterreferred to as A1 to A18) and ten in Schedule B (hereafter referred to asBl to BIO), for an order of ejectment and for damages on the ground thatthe respondents were in unlawful possession of the said land. Therespondents admitted possession but denied that it was unlawful. Thesecond respondent is the daughter of the first and derives such rights asshe claims from the first. It has not been necessary to refer to her rightsseparately.
The learned District Judge gave judgment for the appellant. Onappeal to the Supreme Court (Pulle J. with whom Basnayake C.J. agreed)that judgment was set aside and the action dismissed with costs.
The land was situated in the Kandyan Provinces and at times materialto this case it had all been chena (a type of land well known in Ceylonwhich is subjected to periodic cultivation) or jungle and certain pro-visions of law applicable to such land are relevant to this case.
Section 6 of Ordinance 12 of 1840 as it originally stood is to thefollowing effect:—
“ 6. All forest, waste, unoccupied, or uncultivated lands shall bepresumed to be the property of the Crown until the contrary thereofbe proved, and all chenas and other lands which can be only cultivatedafter intervals of several years shall, if the same be situate within thedistricts formerly comprised in the Kandyan provinces (wherein nothombo registers have been heretofore established), be deemed tobelong to the Crown and not to be the property of any private personclaiming the same against the Crown, except … ”
Then follow' certain specified exceptions which neither of the partieshave sought to call in aid. They have no bearing upon this case.
Section S says :—
“ S. Whenever any person shall have, without any grant or titlefrom Government, taken possession of and cultivated, planted, orotherwise improved any land belonging to Government, and shall have
536
Mil. L. M. D. DE SILVA.—Matilda Feirie v. Glara Fernando
held uninterrupted possession' thereof for not less than ten nor morethan thirty years, such person shall be entitled to a grant fromGovernment of such land, on payment by him or her of half theimproved value of the said land, unless Government shall require thesame for public purposes, or for the use of Her Majesty, Her heirs, andsuccessors, when such person shall bo liable only to be ejected fromsuch land on being paid by Government the half of the improved valuethereof, and the full value of any buildings that may have been erectedthereon.”
Possession for over thirty years entitled the possessor to the land.There is also provision for the grant of “ a certificate of the Crown havingno claim ” to any piece of land if after investigation such was found to bethe case. If after investigation the Crown found that it was entitled tothe land, as a matter of administrative procedure, during the periodrelevant to this case it frequently granted a Crown Grant on such termsas it thought fit to a person of its choice. It would usually be to theperson (if any) in possession. The price required from such personwould take into account the length of the period of possession and theimprovements effected by the possessor. The grants under the adminis-trative procedure just mentioned were made quite independently of thestatutory rights conferred by section 8. Before such a grant was madethere was a careful investigation by the Government Agent after verywide publicity had been given on the spot and elsewhere that an in-vestigation was going to take place. Any person interested in the landwould have had plenty of opportunity to make representations as to anyinterest he may have had. One such grant (discussed later) was made tothe first respondent.
Certain amendments to Ordinance 12 of 1840 were made in 1931.They do not alter the passages set out above and moreover do not in anyway affect the points that arise in this case.
The appellant claims on a chain of title (it would be more accurate tosay two chains but as this fact is of no significance to what follows it willnot be referred to further) which reaches back to two persons T. B. and
W. Boyagoda who purported to buy the land from various persons ata time when it was still chena or jungle. The land was first planted in1927.
On this appeal it has not been contended, quite rightly in their Lords’ships’ opinion, with regard to any land forming the subject matter of thisaction, that the statutory presumption of title in the Crown in respect ofjungle has been rebutted ; nor has it been contended that the statutoryprovision in respect of chena namely that it shall “ be deemed to belongto the Crown ” comes within any of the exceptions mentioned in Section 6(above). It is not disputed that the so-called chain of title was a chainof deeds from vendors who had no title as the title was in the Crown.Such deeds, often called village title (as was done by counsel in this case)
5fR, L. M. D. DE SILVA.—Alatilda J^oiris v. Clara Fernando
537
while they pass no title are often used as evidence, far from conclu-sive, of possession. They are in appropriate cases of evidentiaryvalue to support evidence of acts of physical possession but withoutthe latter they are useless.
According to the appellant this chain of title covered the lands sheclaims as well as certain other lands. The lands covered by the chainstood in 1925 in the names of three persons, C. W. Peiris (husband of theappellant and a witness in the case), D. J. B. Ferdinando and A. C. deMel, as joint owners (referred to hereafter as the syndicate). Thesethree persons executed in respect of an undivided seven-twelfths portionof the land deed of conveyance No. 72 of the 22nd March, 1926, in favourof two persons, A. P. Craib and A. D. Callander, who started to cultivatethe land for the first time. The balance five-twelfths was held by Peiris,Ferdinando and A. C. de Mel in declared shares. By a deed of 1929C. W. Peiris transferred a share of the land covered by the chain to theappellant. The transfer was effected by reference to three portions,Utuwankande of about 500 acres, Kempitikanda of 540 acres and Modera-tenna of about 40 acres. Subsequently by reason of transfers on anumber of deeds, the details relating to which do not appear to theirLordships to be relevant to this judgment, the appellant became thetransferee of further shares till in September 1946 she was the soletransferee of the land covered by the chain. It will be seen that the landcovered by the deeds in the chain was very much more in extent than theland claimed in this case by the appellant and it seems clear from theevidence that the syndicate and its successors planted and possessed atract of land. The question for decision is whether or not that tractincluded the land the subject matter of this action.
Their Lordships will now deal with the lands set out in Schedule A.The blocks A1 to A17 appear in the plan X. A1S appears in plan Y.
In respect of title the appellant has nothing more than village titlecoming to her through the chain already referred to. This as alreadystated is a loose term for something which contains no element of actualtitle. The appellant’s case is that the land was first planted in 1927 andbeforo that it was jungle or chena. Peiris, the husband of the appellant,said :—
“ I knew the time the estate was planted in tea. Schedule A formspart of Ambulugala division of Kempitikande Group. The entirety ofAmbulugala division was planted in tea—in extent 150 acres, in theyear 1927. There were reserve lands also. When I speak of the landsin schedule A, it includes land A18 also. It was also planted in tea atthe same time. A18 is some distance away from the main block ”.
He also said cf The block I now claim was then either jungle or chena **meaning by “ then ” at a time prior to 1927. When he said “ I nowclaim ” he meant cc my wife (the appellant) now claims ” and was under-stood so to mean. It is contended by the appellant that from 1927 the
538
MR. L. M. D. DE SILVA.—Matilda Feiris v. Clara Fernando
appellant’s predecessors in the chain of title were in possession till some-where about 1946 when the respondent ■wrongfully encroached on theland. It was said for her that in such circumstances she was entitled toa declaration of title against the respondent, an order of ejectment anddamages. It is conceded by counsel for the respondents that if the factsalleged by the appellant were substantiated she would be entitled to therelief she prayed for. The basis for this admission is the decision of theSupreme Court of Ceylon in the case Unnanse v. De Hoedt1 that eventhough possession for ten years will not defeat the title of the Crown (asthe provisions of the Prescription Ordinance No. 2 of 1871 are of no availagainst the Crown) yet by reason of certain provisions in that Ordinance,in a case to which the Crown is not a party, a person who has been inpossession for ten years is entitled to ejectment against a person actuallyin possession at the time of the action even though the title at thetime can bo said to be in the Crown.
The case for the respondents can be stated in outline shortly thus :It is said there are chains of title which together cover the lands shownin plan X and reached down to the first respondent prior to 1930. Ithas not been argued that they conferred more than village title. Some ofthe transferors on these chains are the two Boyagodas mentioned earlierbut this fact does not appear to their Lordships to make a materialdifference and they will not concern themselves as to how the Boyagodascame to make competing transfers. On an application made in January1929 to the Government Agent of Kegalle District, after all the formali-ties and publicity which accompany such applications had been compliedwith, she was granted a Crown Grant dated the 7th August, 1930covering all but two portions (these are dealt with later) of the landshown in plan X. It is the respondents’ case that for some time beforethe Grant and from the date of the Grant up to date of action she was inpossession. It is said for her that the plantation on the land was madeby her servants and that the appellant never planted or had possession.It is conceded by counsel for the appellant that if the facts alleged by herwith regard to possession are established the respondents are entitled tosucceed.
The Crown Grant of 1930 if not followed by possession (that is ifpossession had been in the appellant’s predecessors) would not be sufficientbecause, as conceded by counsel for the respondents, possession by theappellant for a period of ten years or more would entitle the appellantunder the provisions of the Prescription Ordinance to resist any claim bythe respondents.
It will be seen from what has been said that the crucial question to bedecided is the question of physical possession, namely, whether as theappellant alleges from about 1927 she and her predecessors in her chainof title had been in possession .till ousted somewhere about 1946 orwhether as the respondents allege they have been continuously in posses-sion from somewhere about 1930.
1 (1920) 22 nr. L. H. 406.
MR. L. M. D. DE SILVA.—JSlaliUla Pdris v. Clara JFemmulo
539
The Supreme Court makes forcible reference to the implications ofcertain evidence given by one Hermon, a witness called by the appellant,whose evidence was regarded in the Courts in Ceylon as being beyondchallenge and was not in fact challenged. During periods material tothis case there was a Tea Controller in Ceylon with regard to whosefunctions all that need be said here is that in performing them he had toobtain assessments of the productivity of the estates in Ceylon and forthis purpose his assessors frequently, if not always, visited them. In1938 Hermon at the instance of the Tea Controller inspected the estateknown as Uduwawela group belonging to the respondents and threeplans’ were produced before him by the first respondent who claimed ashers the land shown on them. One of them was plan 1340. As statedby the Supreme Court “ Lands A1 to A17 are admittedly within plan1340 ”. A tracing of plan 1340 was sent by Hermon to the Tea Con-troller as showing land shown by the first respondent as belonging toher. During his inspection Hermon verified the boundaries on plan 1340with the boundaries of the land shown by the 1st respondent. Earlier,in 1934, Hermon had also visited Kempitikanda Estate to make anassessment for the Tea Controller. It is in a division called the Ambulu-galla Division of Kempitikanda that the appellant says her blocks A1 toA17 are situated. “ Is it possible ” says the Supreme Court ** that Mr.Hermon was shown in 1938 on behalf of the owner of Uduwawela anarea already shown in 1934 as part of Ambulugala division of Kempiti-kanda ? To this question Mr. Hermon’s answer is precise. He says,
* The land which I inspected as Uduwawela estate was a different landto that what I inspected as Ambulugala division. If I went to the sameland twice I would have identified it and reported so to the Tea ControlDepartment … If the same block was claimed by two differentparties, I would have realised that there was a conflicting claim andwould have reported to the Tea Controller.’ It is unfortunate that thelearned Judge does not advert to the implications of Mr. Hermon’sevidence of his visit to assess the productive capacity of UduwawelaEstate.” Hermon also visited the appellant’s land in 1942 for thepurpose of making a valuation. After referring to certain cogent factswhich support Hermon’s evidence the Supreme Court continues ** Theresult which the plaintiff cannot avoid is that Mr. Craib in 1934 andMr. Rod ale in 1942 (both of them co-owners of Kempitikanda) did notclaim the lands in dispute in this case as part of Kempitikanda or ofAmbulugala division.” Of Craib and Rodale it should be said that inaddition to being co-owners they were superintendents of appellant’sland, Rodale from 1935 and Craib before then.
Their Lordships find themselves in agreement with’ the Supreme Court.On that finding the inference arises that the appellant’s predecessors (herhusband C. W. Peiris was one of them) were not in possession at the-times of Hermon’s visits and that the story of continuous, possession from1927 is untrue.
540
MR. L. M. D. DE SILVA.—Matilda JPeiris v. Clara Fernando
If as stated by C. W. Peiris and argued for the appellant the appellant’spredecessors planted and possessed the land from 1927 for several yearsthey must have been dispossessed at some point of time by the respon-dents who, it is agreed, are in possession now. The date of encroachmentis said by the appellant to bo somewhere about 1946. It could besuggested that the encroachment took place over a period of time or ona single day but the physical accompaniments of an encroachmentthirty-two acres in extent (extent in plan X) could not have taken place■without accompanying complaints to the authorities or at least to therespondents. It could not have passed unobserved however furtively itmight have boen done. The only evidence on the question of disposses-sion is that of C. W. Peiris. He had up to 1946 on his own evidencevisited the land only four or fivo times. Ho docs not speak to acts ofphysical dispossession such for instance as that of one or more personson respondents’ behalf preventing a worker continuing to work on theland for the appellant or her predecessors. No witness speaks to physicalacts of dispossession. Peiris said “ I had a land clerk, conductors andwatchers ” and again “ I had a Kanakapulle residing at Ambulugala ”.These are employees of different grades usual on plantations. Theseemployees would have observed incidents connected with dispossessionif they had taken place and some at least of them must have beenavailable as witnesses. None have been called. The Supreme Court (ina context not altogether the same as above) says “It is difficult toimagine by what process the plaintiff lost possession ”. This difficultytheir Lordships share.
Blocks A1 to A17 shown in plan X form one tract and are just overthirty-two acres in extent. A18 shown in extent as just over eighteenacres in extent shown in plan Y is a separate block some distance away.The land to the south of the land shown in plan X is admittedly therespondents’ and the suggestion is that the respondents encroached in anortherly direction. It is a significant fact that admittedly there is nowno physical boundary between what is admittedly the respondents’ landand the disputed tract on plan X. There is also no evidence and noteven a suggestion that such a physical boundary ever existed. It is notprobable that if, as stated for the apj^ellant, the disputed tract had beenin the possession of her predecessors for a considerable period only animaginary line, that is a boundary unaccompanied by physical demarca-tion, would have existed between her land and the respondents’.
The Supreme Court refers to certain correspondence between theappellant and the second respondent beginning with a letter of the 2ndAugust, 1947 and ending with one of the 18th February, 1948. The firstletter is as follows :—
“ Dear Mrs. Perora,
Kempitikande Group/Ambulugala Division
Mr. N. W. Perera, our Superintendent of the above property hasinformed mo that he has written to you regarding certain blocks of
3TK.. L. M. 13. 13E SILVA.ATatilda. I’ciriti v. Clara Ferna-tulo
541
land at Uduwewela and Polwatta Villages, forming part of the abovenamed Division, which, he says, have been encroached on by TJdu-wewela Estate belonging to you.
X am not in a position to say anything until the matter has beenlooked into by my lawyers. I believe you also may be in the sameposition. Shall we, therefore, refer this matter to be amicably lookedinto by your lawyers and mine and advise us so that we may abideby their decision ?
I understand that your Superintendent is preparing to open upsome of these blocks in Tea. I shall be much obliged if you will kindlyinstruct him not to incur any expenditure till the title to these lands isexamined.
iCindly let me have a reply as early as possible.
Thanking you,
Yours sincerely,
Mrs. Cecily H. M. Peiris.”
Of this and the subsequent letters the Supreme Court says :—
“ They certainly do not give one the impression that the defendantswere accused of forcible dispossession of plaintiff’s agents or servants.The correspondence hardly throws any light on how large areas plantedin tea and forming part of Ambulugala division had been encroachedupon without the knowledge of those persons who were in charge of thedivision.”
Their Lordships agree. It is to be observed that if there had been aphysical encroachment it is not (as suggested by the letter set out above)primarily the lawyers who could have assisted but the employees on thespot. The correspondence suggests that about this time the appellantdiscovered not an actual encroachment on land possessed by her but areal or imagined discrepancy between the area covered by the deedsconstituting her village title and the area actually possessed by her.
In deciding the case in favour of the appellant the learned trial judgewas materially influenced by the view he had formed that, her pre-decessors had been in possession of 150 acres of tea in the AmbulugalaDivision of Kempitikanda. The learned trial judge thought that certainmanaging agents had stated that the Division was 150 acres in extent andhad vouched for the extent. But as pointed out by the Supreme Courtthese agents did not manage the land on the spot and it is doubtfulwhether they could properly be called managing agents. The repre-sentative of one of these firms described his firm as a “ financial ”agency which financed the owners and kept a watch over the accounts.He said he could not say whether Ambulugala Division consisted ofplanted tea of the extent of 150 acres. He had not visited the estate.His firm did not have to inspect the estate or even visit it for business
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MR. L. M. 13. 33 E SXL.VA.—Matilda Peiris v. Clara Fernando
purposes. Other similar firms also kept accounts- These accounts referto “ 150 acres ” but do not in any way vouch for the accuracy of thefigure taken presumably from statements sent to them by the superin-tendents on the spot. There was no evidence from these superintendentsor other employees on the spot. It has been argued that the superin-tendents must have had an approximately accurate idea of the extentsstated in their reports, but their Lordships do not feel reliance can beplaced on what they said as they have not given evidence. It is morelikely that the figure was taken from a computation from deeds conveyingparcels of land to which the grantors had no title as they, as statedalready, belonged to the Crown. ' Statements in such deeds cannot beexpected to have any regard for accuracy as to extent of the tracts theywere intended to cover. In any case as already explained it is not extent.covered by the deeds but the extent possessed that matters. TheSupreme Court held that the learned trial judge had misdirected himselfin drawing the inferences that he did from the reports of the agentsmentioned. With this their Lordships agree.
If, as would appear to be the case on what so far has been stated,the appellant fails to establish possession her case fails whatever may bethe position of the respondents. Their Lordships will however considerthe material furnished by the respondents as it supports what has alreadybeen said. Prior to 1930 the 1st respondent had a chain of title withregard to which the Supreme Court observed quite correctly “ Theappellants’ (present respondents) chain of title undoubtedly is as specu-lative as the plaintiff’s or of any other person who seeks to arm himselfwith deeds with the purpose of encroaching on and exploiting Crownlands in the ICandyan districts. The fact, however, is indisputable thatby deed marked 1)29 of ISth January, 1928, one A. R. Scnanayakc andLL W. Boyagoda (two persons who figure in plaintiff’s chain of title aswell) purported to sell a number of allotments of land of which one wascalled Uduwawala estate of 85 odd acres, depicted in Plan No. 1340 of22nd July, 1927.”
Supported by the deed 1)29 the 1st respondent made an application forand received in 1930 a Crown Grant (mentioned above) for a block of landlying within plan 1340. The Grant as already stated covers the greaterpart of the land shown in plan X. The publicity accompanying theenquiry into the application would have made any one in the neighbour-hood who was interested in the land conscious of the fact that an officialenquiry was being held with regard to it. The appellant’s predecessorstook no steps to make a claim themselves or to resist the 1st respondent’sapplication. The inference that this suggests is that at that time theywere not in possession of the land shown in plan X.
The 1st respondent had taken the trouble to obtain a Crown Grant in1930 and, as observed by the Supreme Court, it is remarkable that if theappellant’s predecessors had been in possession the 1st respondent wouldnot have taken some steps to assert her rights under the Crown Grantwithout waiting till 1946 to commit a questionable act of trespass. In
MR. L. M. X>. DE SILVA.—Matilda Peiris v. Clara Fernando
543
1946 the Crown Grant would have ceased to confer any benefit on the1st respondent if the appellant’s predecessors had from 1930 onwardsbeen in possession for over ten years.
3329 had been rectified by another deed 3330.D30 was not among the
documents supporting the application to the Government Agent andappellant has argued that this was a fraudulent suppression. Theabsence of the D30 from the documents submitted lends itself to thissuggestion which however turns out on examination to be groundless.It has been held by the Supreme Court that deed D30 conveyed a secondtime all that had been conveyed by 3329 and that the effect of 3330 wasonly to add to what had already been conveyed by 3329. The SupremeCourt said " I do not see how any adverse comment on that applicationcould be made for the reason that a deed of rectification 3330 of the 8thFebruary, 1928, was not mentioned in it. There is a recital in 3330 thatthere are other lands comprising Uduwawela estate which are outsidePlan No. 1340. The 1st defendant had supplied sufficient particulars tothe Government Agent in regard to the identity of those portions of landappearing in Plan No. 1340 which she desired to be settled on her.”With this view their Lordships agree and it disposes of the suggestionthat the Crown Grant was obtained by the fraudulent suppression of thedeed of rectification. It is to be observed that even if there had been afraudulent suppression it would still not explain the failure by theappellant’s predecessors to interest themselves in the investigation whichwas undoubtedly taking place with regard to the land covered by theCrown Grant.
Their Lordships have so far dealt with the land shown in the CrownGrant which is the greater part of the land shown in plan X. As pointedout by the Supreme Court there are two portions in plan X which areoutside the Crown Grant. The Supreme Court says :—
“ One is on the South-western end in that plan and is marked T.P.No. 312359. A copy of the title plan is the document P71. This lothas been clearly identified as the seed bearer portion of Uduwawelaestate in Mr. Hermon’s report 3312. His evidence, which has alreadybeen dealt with in some detail, corroborates the case set up by thedefendants that they were all along in possession of this block.”
The second block is shown in the plan No. 1964 (document marked1332). In respect of this block the first respondent obtained a decree fordeclaration of title in 1932 and of this the Supreme Court said :—
“ It is again inconceivable that the first defendant successfullyvindicated title to this lot against two villagers without having had atsome period possession of it or that after obtaining, the decree she didnot continue to possess it. The possibility of the owners of Kempiti-kanda group having had possession before or since 1932 has to be ruledout.”
Their Liordships have formed the same view.
544
MK. L. M. D. DE SILVA-—Matilda JPeiris v. Clara Fernando
It lias not been argued that the possession of the block A18 (plan Y)was different from that of the blocks Al to A17. The Supreme Courtarrived at the same finding with regard to land shown on plan Y as theydid to the land shown on plan X and their Lordships are of opinion thatthis finding is correct.
Nothing has been said so far as to the land shown on plan Z (plots 331to 3310 in Schedule 33). According to the appellant at the time therespondents encroached on it the land was chena and had not beenplanted. Consequently at the time of the alleged encroachment theproperty belonged to the Crown. According to the appellant the res-pondents have been in possession ever since. As on her ovn showing thetitle was in the Crown her case fails whatever the position of the res-pondent may be.
Various plans have been referred to in the course of the argument.Plans X, Y and Z were prepared at the instance of the Court and haveserved to indicate the tracts over which the dispute has arisen. TheirLordships do not think it necessary to discuss the other plans as whateverthey may purport to indicate as to title, the land shown in plans X and Ybelongod to the Crown in 1927 and unless the plans can be of evidentiaryvalue to establish possession since 1927 they are of no value at all. Theappellant lias not succeeded in making use of them for this purpose.Their Lordships will however mention one such plan. In 1925 SurveyorThiedeman prepared the plan Pi 7 produced by the appellant. Of this hesaid “ No earlier plans were given to mo nor any deeds ”. Ho went onto say “ The boundaries had been cut through chenas before I got on tothe land. I think it was Mr. Craib and Boyagoda who pointed out theseboundaries. Mr. Craib had them prepared for me ”, and again “ Exceptfor tho cut lines there were no physical features on the land. The cutslooked new—about a couple of months before I went. I made noverification of the lots The land at the time of the survey was chenaand belonged to tho Crown. The boundaries cut through chena wereprepared for the purposes of the survey. There was no evidence fromCraib or Boyagoda. The value of the plan is extremely obscure.
Their Lordships will now deal -with the argument that the findings onthe facts of the trial judge who saw and heard the witnesses should nothave been disturbed. It is well established that findings of primaryfacts by a trial judge who sees and hears witnesses are not lightly to bedisturbed on appeal. In this case however the course taken by theAppellate Court is, in their Lordships’ opinion, fully justified.
The learned District Judge failed to realise that in 1927 the land waschena or jungle and was therefore the property of the Crown. Theappellant’s right to tho land if it existed at all would have had to rest onpossession. The learned District Judge treated the deeds (mentionedabove) produced by the appellant as establishing legal title in her which
MR. L. M. D. DE SILVA.—Matilda Peiris v. Clara Fernando
546
they clearly did not, and would not have done even in the absence of theCrown Grant produced by the respondents. The basic approach to thecase made by the District Judge was therefore wrong. His findings havebeen influenced by that wrong approach.
Further his findings on the facts were not based so much on credibilityas on wrong inferences from documents some at least of which ho hasmisread. For instance speaking of the valuation made in 1942 byHermon he says “ Hermon who visited the estate was shown round byRodale the superintendent and found the estate (i.e. Ambulugala) to be150 acres in tea planted in 1927 ”. He did no such thing. He wascareful to say in the report (document P.S3) that on the*question of extenthe was shown no plan and that 150 acres was mentioned to him as possiblyan approximate extent. He was careful not to vouch for the accuracyof this extent. A similar error is repeated with regard to a report madeby one Gordon Fellowes and must have gone a long way to forming theimpression in the learned District Judge’s mind that the appellant’spredecessors Avere in physical possession of 150 acres. The reports fromthe so-called managing agents which led the learned District Judge to thesame conclusion have been discussed earlier.
Credibility would have been heavily involved if witnesses who actuallyput plants on the disputed land or supervised or even saAv such plantingon the spot had been called by the appellant to support her case.Credibility Avould also have been involved if Avitnesses who spoke tophysical acts of ouster had been called. But no such Avitnesses havebeen called. Peiris saA'S that up to 1946 he Arisited the land only four orfive times. He does not say he saAv any acts of planting nor does he sayhe saAv any acts of ouster. The advantage that a trial judge enjoysin deciding questions of fact of having seen and heard witnesses is noteAndcnt in this case.
The learned trial judgo has failed to consider and pay due regard tocertain important features of the case such for instance as Hermon’svisits Avhen the land shown in plan X Avas shown by the 1st respondentas belonging to her and possessed by her and not shown by those incharge of Ambulugala as belonging to and possessed by the appellant’spredecessors. This feature is almost conclusive on the question ofpossession.
Their Lordships have examined the evidence in detail and they haveformed the view that that evidence fully supports the views of theSupreme Court mentioned above and other views expressed by it infavour of the respondents. They do not think it necessary or useful todiscuss those other views. They will humbly advise Her Majesty thatthe appeal should be dismissed. The appellant must pay the costs ofthis appeal.
Appeal dismissed.