094-NLR-NLR-V-05-SIRIPINA-v.-KIRIBANDA-KORALA.pdf
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1878.
June 6.
Kandyan Law—Nindagama—Right of landlord 'or tenant to break up land insearch of minerals without consent of each other.
In the absence of proof of any custom, neither the landlord nor thetenant of a nindagama can gem on the land without the other's consent.
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LAINTIFFS claimed to be owners of three-eighths of Palgas-tunewatta and owita,appertainingtoMiganadeniya-
manane-pangmva. . They alleged that defendants had forciblyentered into possession of the lands,' and had removed gems tothe value of Rs. 1,200 therefrom. They prayed for a declarationof title and damages.
The first defendant claimed Miganadeniya as a nindagama,alleging that he was the owner of one-half thereof and that theremaining defendants owned the rest. He admitted plainiffs’rights to what they claimed only subject to rajakariva to the
SIRIPINA v. KIRIBANDA KORALA.
D. 0.. Ratnapura, 10.389.
( )defendants. He admitted miniug for gems on the owita, but notthe watta; but alleged it was with plaintiff’s consent. He prayedfor dismissal of plaintiff's action.
Ths second, third, and fourth defendants filed a separate answerdenying the gemming.
The plaintiffs replied admitting that the lands were rajakariyalands. They, denied consenting to the gemming.
The District Judge found that first defendant acted without theplaintiffs’ consent, and gave judgment against him for Bs. 750damages and costs. He found the other. defendants improperlyjoined, as they did not act with first defendant.
First defendant appealed, and the case was sent back for furtherevidence as to the relative rights of landlord and tenant, where oneparty has gemmed without the consent of the other, and leavewas given to defendants to amend their answer.
First . defendant accordingly . filed an amended answer statingthat plaintiffs as tenants were only entitled to the crops from theland, while the minerals, which originally belonged to the king,were now the property of the landlord by virtue of the Tudapotacreating the nindagama.
Plaintiffs replied that neither party was entitled to diminishpermanently the value of the land to the other’s loss; they deniedthat the Tudapota conferred the king’s prerogatives on thegrantee.
The District Judge found that there was no uniform customgiving the landlord the sole right to gem on the lands of paravenitenants, and he allowed to plaintiffs three-eighths of one-half qfBs. 1.600, the amount found to have been realized by the sale ofgems.
First defendant appealed again.
The case came on for argument before Clarence. J.. and Dias, J.
There was no appearance of counsel for appellant.
Van Langenberg, for respondent.
On the 6th June, 1878, Clarence, J., delivered the judgment ofthe Court as follows: —
Plaintiffs sue four defendants. They aver that they were atthe date of the acts complained of owners and in possession of anundivided three-eighths of certain lands belonging to a certainpanguwa, and they aver that defendants forcibly entered upon thelands and dug gems of the value of Bs. 1,200, and 'by so doing pre-vented plaintiffs from having due enjoyment of the land; andplaintiffs claim a declaration of title, an injunction, and Bs. 1,200damages.
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1878.
June 6.
1878.
June 6.
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It is not disputed that plaintiffs are the paraveni tenants ol theshare of the land in question, and that first defendant owns one-halfof the nindagama of which the land is held, the other defendantsowning the other half, and it is also not disputed that first defen-dant did open a pit on the land and dig for gems. The second,third, and fourth defendants in their answer deny the alleged tres-pass. The first defendant originally filed an answer, .in which hepleaded the plaintiffs’ consent to his gemming. Evidence wasadduced at the trial to prove that consent. The District Judge,however, was dissatisfied with that evidence, and gave judgmentagainst the first defendant for Rs. 750 and costs, ordering second,third, and fourth defendants simply to bear their own costs. Thefirst defendant appealing against that decree, the Supreme Courtset it aside and sent the case back for evidence as to custom withrespect to the mutual rights of nindagama lord and tenant in suchmatters. Leave wa6 also given to defendants to amend pleadings,and to all parties to adduce evidence generally. In pursuance ofthis leave to amend, first defendant filed a pleading which purportsto be an “ amended answer,” but whether included as- an additionto or in substitution for the original answer, does not distinctlyappear. The new answer, which is' so confused as not to be quiteintelligible, appears to deny the existence of any custom as tosharing between the lord and tenant, and also avers that the rightto minerals belonged of old to the Kandyan kings, and by virtueof a Royal grant had become vested in defendants.
At the new trial defendants called several witnesses apparentlyto prove a custom in their favour, but these witnesses do not provemore than that they had as a fact gemmed without the tenants'permission on lands in nindagama, of which the witnesses werethe lords. Iddamalgoda Basnaike Nilame, a witness called by theCourt, on whose evidence the District Judge appears to have placedconsiderable reliance, testified to the effect that in former' timesparaveni tenants did not oppose their landlord’s claims to the gemsunder the land, but whether from respect to the landlords or incompliance with a custom the witness could not say. Thewitness, however, did say that, in accordance with the customof the Udarata, the landlord used to be entitled to all mineralsbelow the surface, but that for the last four or six years thetenants had disputed the landlord’s right to take all theminerals.
Taken as a whole, the evidence adduced as to custom does notappear, a9 such, to establish a customary law authorizing thelandlords breaking up the land in search of minerals without thetenants’ consent.
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In 2,386, D.C-, Kegalla, decided by this Court on 28th July, 1875,a nindagama lord who had leased the land to a third party forplumbago mining sued the paraveni tenants who had ejected thelessee and were working the pit for themselves, and the SupremeCourt, in the absence of any customary law, held, affirming thejudgment of the District Court, that the right of both proprietorand tenant of a paraveni panguwa being a qualified one, it is reason-able and consistent with principle that, whilst the former shouldnot be allowed to lease the mine or any interest therein to thirdparties, the tenant should not, on the other hand, -be allowed to doany act which would permanently diminish the value of the land-And in a very recent judgment of this Court it was held thsith atenant had no right, in a panguwa of which the Crown was lord,to impair the value of the land by breaking up the land anddigging out clay. As to the contention advanced in the firstdefendant’s amended answer, that the right to mines and mineralsbelonged to the Kandyan kings, and that by virtue of a certainroyal grant the royal right has become vested by descent in thedefendants, we need only say that the first defendant has notproved the royal grant.
Whatever may have been the process by which the primevalcommunity now represented by this panguwa assumed its presentconstitution of nindagama owner and pangukarayas, the truthappears to be that we have before us in this case no materialsupon which we can ascertain that any corresponding right withrespect to gemming has crystallized or grown up as between theparty who has grown up into the nindagama owner, and thosewho have subsided into the rank and file paraveni holders of thepanguwa, with respect to gemming. It may be, to quote SirH. S. Maine (Village Communities, p. 141), the'lord, in succeeding tothe legislative power of the old community, was enabled to appro-priate to himself such of its rights as were not immediately valu-able, and which, in the event of their becoming valuable, requiredlegislative adjustment to settle the mode of enjoying them. Andit might be that in this manner the lord would acquire righs, . tothe exclusion of the tenants, in respect of minerals. It certainlyis extremely probable that in an Eastern country like Ceylon,where the attitude of political inferiors towards their superiors ismarkedly servile, nindagama owners would very frequently carrymatters against the tenants with a high hand as .regards gemming,as well as other things. In like manner it is probable enough thatthe native kings would deal after a very despotic fashion insimilar matters with those below them. Whatever may have beendone, we have not before us any materials upon which we can
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1878.
June 6,
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pronounce that the lord has acquired any right to gem on thetenants’ land without the tenants’ consent, and this Court appearsto have arrived at a similar conclusion in the Regalia case abovereferred to. We find no proof of any exclusive right either in thenindagama owners or the paraveni tenant. In this state of thingsthe only holding open to us is, that neither can gem without theother’s consent.
[The judgment then dealt with the question of the amountof damages and affirmed the District Judge s award.]