073-NLR-NLR-V-17-CHENA-MUHANDIRAM-v.-RAWAPPER.pdf
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Present: Lascelles C.J.
CHENA MTJHANDIRAM v. RAWAPPER55—P. G. Anuradhapura, 40,400.
Forest Ordinance, No. 16 of 1904—Bona fide claim of right—How f<*tprosecutions under the Ordinance are justifiable—Civil actions.
Lascelles C.J.—How far the provisions of section 4 of Ordi-nance Ho. 16 of 1907 are intended to over-ride the general principlethat the criminal jurisdiction of the Magistrate is ousted by a bonafide claim of right is not clear. Bat the language of the sectionsuggests the view that the questions of title contemplated by thesection are such as may occur incidentally in the course of prosecu-tions under the Ordinance; and that the section was not intendedto authorize the Crown to proceed criminally in cases where thereis from the beginning a bona fide question of title between the Crownand the accused. In other words, the section does not famish ashort cut for disposing of disputes which are essentially of a civilnature by means of a criminal prosecution.
In cases where a village community bona fide claims against theCrown under an ancient grant, it is not a fair course of procedureto prosecute the claimants individually for breaches of the ForestOrdinance.
facts appear from the judgment.
Talaivasingham, for the accused, appellant.
Garvin, Acting 8.G., for the Crown.
Cur. adv. vult.
February 2, 1914. Lascelles C.J.—
This is an appeal against the conviction of the appellant forclearing 1| acre of chena land named Gangagodahena, in the villageof Elagamuwa, in contravention of rules framed under the ForestOrdinance, 1907.
The1 appeal is based principally on the ground that the appellant,as a native of the village of Elagamuwa, was entitled, in commonwith the other inhabitants of the village, to the land in question.
In support of his claim the appellant produced a talipot purportingto be dated in the year 1500 of the Saka era and registered in 1872.This document purports to be a grant in consideration of a paymentof 500 pieces of silver by one Gobara Mudiyanse of Eorasagalla tothe persons therein named of the village of Elagamuwa, includingcertain hamlets named in the deed. The boundaries to the village
8J. H. B 18828 (7/62)
1914.
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1914.are given* and according to the Korala, who was called as a
—witness for the prosecution, the land in question is within these
LaBOHTiT.TBS …
boundaries.
The question whether the Police Magistrate should have adjudi-Mvhandiram cated on the question of title set up by the appellant was raisedv. Rawapper#ie argument. Although the appellant has not, in my
opinion, made out a bpna fide claim to the land, I do not wish topass over the question of law involved.
In prosecutions under the Forest Ordinance the Court is em-powered to adjudicate on any questions which may arise as to thetitle to the land in respect of .which the prosecution is laid; but thedecision of the Court on any such question is not res judicata in anycivil suit in which the title of the land may be put in issue. It thusbecame the duty of the Magistrate to adjudicate on the title of theappellant for the purposes of the prosecution.
How far the provisions of this section are intended to over-ridethe general principal that the criminal jurisdiction of the Magistrateis ousted by a bona fide claim of right is not clear. But the languageof the section suggests the view that the questions of title contem-plated by the section are such as may Occur incidentally in thecourse of prosecutions under the Ordinance; and that the sectionwas not intended to authorize the Crown to proceed criminally incases where there, is from the beginning a bona fide question of titlebetween the Crown and the accused. In other words, the sectiondoes not furnish a short cut for disposing of disputes which areessentially of a civil nature by means of a criminal prosecution.But however that may be, it is only within certain limits that aMagistrate, in prosecutions under this Ordinance, can effectuallyadjudicate on questions of title. There are numerous cases wherethe matter in dispute is of such a nature that any attempt to solveit without proper pleadings and issues being formulated can onlyresult in confusion.
In the present case, for example, if the appellant had been ableto show any reasonable- grounds for his contention that he and tjjsfellow-villagers were, the successors in title to the grantees under thetalipot, issues would have arisen which could never have beendisposed of in a summary trial in a Police Court: such questions,for example, &6 the genuineness of the document* the title of thegrantor, and the effect of the various transactions with regard tothe land. Further, in cases where a village community bona fideclaims against the Crown under an ancient grant, it is not a. faircourse of procedure to proseoute the claimants individually forbreaches of the Forest Ordinance. The matter in dispute is onewhich should be determined by proceedings under the Waste LandsOrdinances or by civil action.
But in the present case there is a total absence of evidence of anyconnection between the appellant and the original grantees. It is
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impossible to say that be has raised a question of title on which the 1914.Magistrate cannot adjudicate, for he has failed to indioate any title Ti^~ mat all. At the same time allowance should be made for the factc.J.
that the accused acted in the exercise of a supposed right. I affirmohena
the conviction, and reduce the fine to one of Rs. 5.Muhan&inm
v. Rawapper
Affirmed; fine reduced.