074-NLR-NLR-V-29-GOVENMENT-AGENT,-SABARAGAMUWA-v.-ASIRWATHAM-et-al.pdf
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Present: Dalton and Drieberg JJ.GOVERNMENT AGENT, SABARAGAMUWA, v.ASIRWATHAM et al.
27—D. C. (Inty.) Ratnapura, 4,355
Land acquisition—Reference to Court—Sale of property—Right of inter•vention—Claim to compensation—Civil Procedure Code, s. 18.
Where property, which was the subject of a reference to Court underthe Land Acquisition Ordinance, was transferred by deed whichconveyed, inter alia, the right to intervene in cases institutedby the Crown in respect of the property,—
Heldt that the vendee was entitled to intervene in the reference pro-ceedings and claim and compensation.
Held, further, that in such proceedings the inquiry is not restrictedto those persons only who are named in the libel of reference.
Held also, that where there is no dispute with the Crown, theGovernment Agent should neither pay nor receive the costs of reference.Green v. Romanis Appu et oi.1 followed.
^ PPEAL from an order of the District Judge of Ratnapura.
Soertsz (with R. G. Fonseka), for 1st defendant, appellant.
N. E. Weerasooriya, for 7th defendant, respondent.
April 4, 1928. Dalton J.—
This appeal arises out of a reference to the Court under theprovisions of the Land Acquisition Ordinance, 1876. No disputearises as to the amount of the compensation payable for the landacquired, the sum of Rs. 2,965 having been deposited by the Govern-ment Agent in respect of that compensation. The dispute is as tothe rights of certain parties to the amount so deposited. Thatdispute has now been narrowed down to one between the 1st and7th defendants.
As I regret to say is not uncommon, the facts have not beenfully elucidated in the lower Court. What is the date of the libel ofreference does not appear, but the answer of the 1st defendant isdated March 4, 1926. In his answer he claimed the whole of thecompensation, but subsequently he admitted the claims of the 2ndand 5tli defendants to a proportion of the sum in respect of 1J acresof the land acquired. We are then told that, thereafter, the Crownentered into possession, but what is the date of'the certificate upon
i 5 S. C. C. 1.
1928:
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Daupon J.
GovernmentAgent,Sahara-gamuwa a*Asirwatham
the signing of which the land vested in the Crown has nowhere beenascertained or disclosed {vide section 12 of Ordinance No. 3 of 1876).It is difficult to understand that omission in view of the legalargument submitted in the lower Court, which depended upon theascertainment of the date of that vesting. It seems to have beenassumed, as Counsel for appellant las stated, that the propertyvested in the Crown so soon as these proceedings were commenced,which of course is not correct. It has, however, been assumed thatthe property vested in the Crown prior to March 7, 1927. It wason that date that certain persons executed a deed in favour ofPunchimahatmaya (who subsequently intervened and became the7th defendant), purporting to convey to him, for the sum of Rs. 50,all the right, title, and interest of the vendors in and to an undividedhalf of the land which was the subject of the acquisition. Theyhad made no claim to the land or to the sum deposited m Court, butin the same deed they purported to make over to Punchimahatmaya“ the right to intervene in cases now instituted by the Crown inrespect of the said property." Six months later, on October 17,a petition was filed on behalf of Punchimahatmaya and the Courtwas moved to allow him to intervene in the action to prove hi6claim to a half share of the compensation deposited. He alsoasked that his petition be taken as his statement of claim. All theparties received notice of this motion and a copy of the petition,and, no objection being offered to the motion, the trial Judgeallowed it. After intervenient’s proctor had filed a list of hiswitnesses on October 25, the matter came before the Court onNovember 3. Issues were then framed as follows: —
Does the deed on which the 7th defendant claims convey any
title to him by reason of the fact that it was executedafter the land was acquired by the Crown?
Even if the Court holds that he has a valid transfer, can he
claim anything more than Rs. 50, which is the considerationstated upon that deed?
Prescriptive rights.
Are the seven defendants the grandchildren of Batunnraiage
Mudianse?
It -will be seen that no question was raised as to the right of the7th defendant or intervenient to intervene at the stage of theproceedings at which he came in.
On the issues the trial Judge found that it has been satisfactorilyestablished that the vendors to the 7th defendant were co-owners ofthe predecessors in title of the 1st defendant. On appeal that findingis not questioned. The trial Judge, in accordance with that finding,directed that the amount of compensation deposited, after allowingfor the deduction therefrom in respect of the 2nd and 5th defendants
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to which I have already referred, be divided in 3qual shares betweenthe 1st and 7th defendants, each of them on that basis receivingthe sum of Rs. 882.50, less Crown costs which the trial Judge hasordered to be deducted from the amount in Court. From thatdecision the 1st defendant appeals.
No question is raised on the appeal in respect of the 2nd, 3rd, or4th issues. The grounds upon which it is urged that the trialJudge was wrong are, first, that the 7th defendant’s alleged purchasewas long after the land had been acquired by the Crown and thathis deed gave him no title or interest in the land whatsoever;secondly, that he ought not to have been allowed to intervene,and he has not been made a party in terms of section 18 of theCivil Procedure Code; and thirdly, that the trial Judge could, underthe provisions of the Land Acquisition Ordinance, inquire into thosecases only which were referred to by the Government Agent in hislibel.
On the first point, although, as I have stated, we have no informa-tion as to the date of the vesting of the land in the Crown, it hasbeen assumed that 7th defendant’s purchase was subsequent tothat date. An examination of the deed (7 D2) has led me to theconclusion to which the trial Judge has come, which is, that itssubstantial effect is to place the 7th defendant in the positionto which his vendors were entitled. It refers to the acquisitionproceedings, and its effect is to convey to the 7th defendant suchinterests (if any) which the vendors had in the compensationdeposited in Court by the Crown. It is true it appears to have beenan entirely speculative purchase on his part, but that is no ground,if the vendors had an interest, why the 7th defendant should nothave the benefit of his purchase.
On the second point I am unable to agree with Mr. Soertsz’sargument that no person can intervene in proceedings under thisOrdinance, and that the inquiry must be restricted to those personsonly who are referred to in the libel of reference. Mr. Soertszagrees that if the sum claimed by the 1st defendant had been paidout to him, the 7th defendant could thereafter, under the provisionsof section 36 of the Ordinance, recover from him any part of thesum to which he (the 7th defendant) might be entitled. Why,therefore, he should not be entitled to put forward his claim whilstthe money is still in Court, and before it reaches the 1st defendant’shands, it is difficult to understand. The 7th defendant has beenproperly joined as a party, under the provisions of section 32 of theOrdinance, after notice to all the other parties, 'including the 1stdefendant. No objection was put forward. The order of the trialJudge allowing the application falls within tlie provisions of section18 of the Civil Procedure Code. Xo attempt to have Ills name
1923
DAIiTON J.
GovernmentAgent,Sabara-gcanuwa v.Asirwatham
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1928.
Dalton J
GovernmentAgent,Sahara-gamuwa v.Asirwatham
struck out, as improperly joined, has been made. In the case ofTempter v. Seneviratne1 the facts are different. There the trialJudge entered upon a roving inquiry as to the rights of a greatmany people who were not parties on the record, and who hadnever made any claim either before the Government Agent or theDistrict Judge. His decision was therefore set aside and the caseremitted for the purpose of his adjudicating on the claims of thefour persons named in the libel of reference. It is clear, however,from the judgment of Withers J. that he contemplated the possibilityof intervenients putting forward claims and being heard if theywere properly joined. He points out that according to section 32of the Ordinance the proceedings of the District Court shall besubject to the prevailing rules of practice and procedure, and thatby that procedure no person could intervene in any action otherwisethan as provided by section 18 of the Civil Procedure Code. Thatsuch intervention in proceedings as we have here under the LandAcquisition Ordinance is lawful, I am fully satisfied. This meetsalso the third ground of appeal. I can find nothing in the provisionsof section 13 of the Ordinance opposed to this conclusion. If theclaim is put forward after the land is vested in the Crown, it seemsto me a highly technical point, using possibly a more euphoniousterm than the circumstances justify, to say that the claimant hasno “ interest ” in the land. It cannot be said, however, that he isnot “ interested ” in the land, within what seems to me to be thepurview of the section. He is interested to the extent of his interestin the compensation which, on the vesting of the rights of himselfor his predecessors in title in the land in the Crown, takes the place ofor is substituted for his interest in the land.
With regard to the assignments of rights in a pending action, itis not contested that, after litis coniestatio, such assignment is notunlawful. Here the vendors were not even parties to the action andtheir interests are clearly assignable.
For the above reasons I am of opinion that the decision of the-trial Judge was correct, and I would dismiss this appeal withcosts.
One further matter remains for mention. The trial Judge directedthat Crown costs be first deducted from the sum in deposit. Thatwill probably mean a substantial reduction in the amount receivedby the successful claimants. The trial Judge appears to have over-looked the fact that the Crown Proctor expressly informed theCourt that there was no dispute with the Crown. In that casethe Crown or Government Agent should neither pay nor receivecosts of the reference (see Green v. Romanis Appu2). No questionon this point has, however, been raised on the appeal, and the1 2 C. L. R. 70.* 5 S.C. C. 1.
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Government Agent- is not made a party to the appeal. We cannot,therefore, make any order in respect of these costs. We would,however, express the opinion that, unless there are any circum-stances justifying the order to which our attention has not beendrawn, in view of what we state, the order of the trial Judge inrespect of Crown costs should be waived by the Crown, no suchdeduction being apparently justifiable.
1928.
Dalton J.
GovernmentAgent9Sabara-gamutca v.Asirwalham
Drieberg J.—I agree.
Appeal dismissed.