028-NLR-NLR-V-24-THE-ATTORNEY-GENERAL-v.-APPUHAMY.pdf
( 112 )
1922.
Present: De Sampayo and Schneider JJ.
THE ATTORNEY-GENERAL a. APPUHAMY393—D. C. Key alia, 5,056
Ordinance No. 12 of 1640, s. 6—At tchat point of time must tenuis beckenag for the presumption, created by the Ordinance 1—Docs thepresumption apply in any proceeding outside the Ordinance *Does the presumption apply • to chena lands in a royal village ?Gobadagamo—The term “ chena ” explained.
For the purposes of the presumption contained in section 6 ofthe Ordinance, the character of the land, which should be consideredis its character at any time material to the action: the presump-tion could be relied upon in an action for declaration of title anddamages which is outside the special proceedings provided in theOrdinance.
Section. 6 of the Ordinance No. 12 of 1840 applies to all chena landsin the Kandyan Province—even those in a. royal village orGabadagama.
The word " chena ” which is used in the Ordinance is a term adap-ted from the Sinhalese villager, and its true significance must be' sought for according to- his ‘ use of the term. The villagers apeakof high forest as “ mukalana. ” When the trees in a “ mukalana ”
■ -or a ’ portion, of one are felled and the land cleared, whether forplanting in rubber, tea, or coconut, or for cultivation with theordinary chena products, they will speak of the clearing as “ hen a.”They will continue to do so until .the tea, or rubber, or coconut beingsto yield, when the land will be called “ watta ” (garden), with thename of the product prefixed as tea garden, rubber garden,coconut garden' If chena cultivation is. practised, the chena willbe cultivated at intervals of years which will range from seven totwenty years according to the nature of the soil .or other circum-stances. The land will be colled ” chena,’-' although the jungle maybe twenty years old. Such jungles is.spoken of as ” lande.” If theland is abandoned for about forty or . fifty years, and. the treesassumed large proportions, it will once again' come to be called“ mukalana.”
. It is a fallacy to suppose that a land which'-was a chena loses itscharacter as a. chena immediately it is planted with some productsuch as tea or rubber. Once a chena it. remains a chena till it isconverted into a " watta,” or reverts to a mukalana.
FJJ HE facts are set out in the judgment.
H. J. C. Pereira, K.C. (with him Elliott, K.C., and H. V. Perera),for appellant.'
Akbar, 8.-Q, (with him Muttunayagam, C.C.), for respondent.
( 113 )
August 80, 1922. ScHNBlDEB J.—
In this case the Crown asserted title to two adjoining allotmentsof land called Calgodahena and Moragahamulahena as being chenalands, situated within the Kandyan Provinces, within the meaningof section 6 of the Ordinance No. 12 of 1840. The Crown claimed edeclaration of title in itself, and a sum of Bs. 50 as the value oftimber trees wrongfully felled and removed. by tbe defendant, andBs. 15,000 as the value of plumbago dug and removed by thedefendant from the said allotments of land. In the plaint the landsare described as lot No. 3*133 a8/4 in preliminary plan No. 149, andit was alleged that the plumgabo had been dug and removed fromabout September, 1913, and the timber trees had been felled andremoved in February, 1914.
The defendant denied the title of the Crown, and pleaded that thelands belonged to a family ealled Bathu Kankanamalsge, by whichfamily they had been possessed for upwards of 100 years, till membersof that family sold them in 1905. He also pleaded that the Crownhad always acknowledged the right of that family to the lands. Hedenied that the lands were in the Kandyan Provinces, and claimedto be entitled to them by virtue of several deeds bearing dates fromJune, 1905, to March, 1913.
There-were two trials before the case was argued before this Court.
Originally the parties wont to trial upon nine issues in December,1919. From these issues it is clear that there was no dispute as tothe identity of the lands in claim.
The first, second, and third issues are the material issues.. Theyraise two questions of fact and one of law dependent upon thosequestions of fact. The questions of fact are whether the lands aresituated within the Kandyan Provinces, and whether they werechena lands on September 5, .1913? The question of law is whetherthe lands are to be deemed the property of the Crown if the twoquestions of fact are answered in the affirmative. Upon the plead-ings'it is obvious that the third issue hangs entirely upon the decisionof issues one and two, because nothing is pleaded to rebut thepresumption arising under section 6 of the Ordinance No. 12 of 1840that the lands are the property of -the Crown, if issues one and twoare answered in the affirmative.
In the course of the first trial it transpired that Mr. Booth, aForest Settlement Officer, had held an inquiry into the claims toland in the village Ampe, in which the lands in dispute here aresituated. This was in 1898. Mr. Booth’s judgment is the documentmarked P 18. It is of material importance. It-shows that certainclaimants who appeared before him, but whose names do not appearin the document, laid claim of title to certain portions of high andlow lands which are identified by the number of the lots accordingto the preliminary plan No. 149, which it should be here noted isthe plan referred to in the plaint.
im
The
Attorney-General c.Appuhomy
( 114 )
1082.
flomragPKR
J.
The
Attorney-General v.Appuhamy
Mr. Booth states it as his opinion, an opinion-*-which must beaccepted, because these Settlement Officers have exceptionalopportunities of acquiring knowledge of this kind in the course oftheir official duties—that chena cultivation had been practised in thevillage of Arnpe from time immemorial, and that the claimantshave a right to continue that practice on the same lands as they andtheir predecessors 44 have hitherto cultivated as chenas.”
Proceeding to inquire what .those lands were, and to what extentchena cultivation had been made, he concluded from the documen-tary evidence produced that the two lands now in claim and threeothers had been, partly cultivated as chenas, some in 1863, othersin 1873. He ascertained that an extent equivalent to 7 acres, outof all the five allotments which were 12 acres in extent, had beencultivated as chenas. He therefore admitted the light of theclaimants to practise chena cultivation to that extent in thosefive chenas. To use his own words: “ I admit the right of theclaimants to practise chena cultivation, and I permit* them to con-tinue such practice oil the following lots to the extents specified: —liots 8,046, 8,132h, 3,049g, a portion of 3,049q1 equal to 19 acres1 rood, and a portion of 3,138j3 equal to 7 acres in preliminary plan149. I disallow the claim to dig for plumbago on any portion oflot 3,133j3.”
When B. Banda, a man who had held the office of Kerala over the-division -to which the “village Ampe belongs, and a witness for theCrown, was being cross-examined, the Crown proctor produced the —document D 1. This document is a petition admittedly signed byR. Haramanis Appuhamy, the principal witness for the defence andone of the vendors to the defendant. The petition is dated July,1904, and is. addressed to His Excellency the Governor. It statesthat the petitioner had contracted a marriage with one of the womenof the Rathu Kankanamalage family. It gives the names of all theclaimants who preferred claims before Mr. Booth, the petitioner’swife being one of them. It sets out quite accurately what Mr. Boothhad decided.' It makes charges against certain officials, and inconclusion prays that in terms of Mr. Booth’s settlement that he andhis co-owners be “ granted ” the “ two chenas,” which are now indispute.
The document D 2 dated January, 1905, is the reply of His Ex-cellency. It informs the petitioner that ” the 7 acres of chena willbe marked off, and the co-heirs, will be put in possession.” It wouldappear, therefore, that by D 2 the Governor refused to grant theprayer of the petitioner that the two chenas now in claim should begranted to him and his co-heirs, and informed the petitioner that,in terms of the settlement by Mr. Booth, a 7-acre block would bemarked out By a survey, out of the 12-acre block of land.
If the defendant meant to raise an issue upon these documents,this was the stage at which he should have done so. It is permitted
< 115 )
by our Civil Procedure Code to raise an issue at any stage of a trial,but no issue in fact was raised, and the trial proceeded upon theoriginal nine issues with which it started.
On January 6, 1920, the learned District Judge pronounced bisjudgment holding against the defendant on all the issues. Thedefendant appealed from that judgment. When the appeal came upfor argument, defendant's Counsel asked that another issue should beframed, and the case sent back for trial of that issue. To this coursethe respondent’s counsel had no objection. This Court then pro-forma set aside decree, and sent the case back for trial ofthe new issue-suggested, viz.; “ Do the documents D 1 and D 2constitute a grant by the Crown of the two lands, Galgodahenaand Moragahamulahena, within the meaning of section 6 of theOrdinance No. 12 of 1840. ”
After trial of this issue the learned District Judge held againstthe defendant once again, and the defendant had appealed.
The questions which were principally argued before us in appealmight be stated as being the following:—
At what point of time must the lands in claim have been
chenas for the presumption created by the Ordinance toarise? The defendant’s counsel contended that they mustbe chenas at the date of the institution of this action orhave been so shortly before.
Does the presumption in favour of the—Crown in section 6_ of
the Ordinance apply in any proceedings outside those pro-vided in the Ordinance ?
If the lands are situated in a Oabadagama, can the Crown claim
title under the provisions of section 6 of the Ordinance?
Has the Crown established a case for Es. 15,000 as damages?
The first two questions are questions purely of law. At theargument of this appeal, it was agreed by Counsel on the two sidesthat the decision of the law in this case should follow the decision ofthe same law in the case of Mudalikamy v. Kirihamy which was thenawaiting argument before a Full Bench of this Court.
The judgment of this Court in that case was delivered on August25, 1922. 1
It was held there that for the purposes of the presumption contain-ed in section 6 of the Ordinance, the character of the land whichshould be considered is its character at any time material to theaction, and that the presumption could be relied upon in an actionlike the present which is outside the special proceedings provided inthe Ordinance. According to that decision the "time material to thisaction is the vear 1893, when the Forest Settlement Officer, Mr.Booth, held his inquiry as to the claims between the Grown on theone part and the village-claimants on the other. That was
1 Vide S. C. Min., dated Aug. id, 1922.
1988.
gCHNHUOBB
-J.
The 'Attorney-Oenerat v.Appuhamy
( 116 )
IttiSU.
J.
The
Attorney-ttenrml v.A t*f*uh*ttny
the date of the first conflict between the Crown and the claimantsthrough whom the defendant now claims title ; but, according tqissue A suggested by the defendant’s counsel and issue 1 by CrownCounsel at the trial, the date to be taken into consideration was theinstitution of the action (issue A) or September 5, 1913; (issue 1)the ouster complained of as occasioned by the digging of plumbago.
The Full Bench decision concludes the first two questions, becausethe effect of that decision is that if these lands were chena lands in1893, they are Crown lands by virtue of the presumption in section 6of the Ordinance. But, upon the facts of this case, it seems to methat it is immaterial at what point the character of these lands istaken into consideration, whether in 1893, or in September, 1913,or at the date of the institution of this action. Their character isstill the same. They are chenas. What then are the facts ?
The. document P 18 clearly indicates that in 1893 Mr. Booth andalso the defendant’s predecessors-in-title regarded the lands indispute as chenas. The settlement arrived at was the granting orthe recognizing of the existence of the right to practise chenacultivation on a portion of these two allotments of land among others.
In D 1 in 1904 Haramanis Appuhamy, the defendant's predecessor-in-title and chief witness in this case, speaks of these lands as chenasat that date. The effect of that witness’ evidence given in this casein December, 1919, is that these lands were chena even at that date(vide his re-examination). The only other witness for the defenceis the ex-Gan-arachchi, Appuhamy by name. He states that in1905 the two lands were in jungle forty or forty-five years old.But he does not call the lands by any other name than ** hcna, ”which is -the same as “ chena. ” That he had before his mind’s eyethe precise meaning of wotds is made- clear when he proceeds tosay that the 7 acres of chena, which the De Mels Wei’s in possession,had ceased to be> chena in 1905 as they had become a garden(“ watta ”) by being planted with coconut and the trees'"cominginto bearing. There is nothing' in his evidence, therefore, to conflictwith all the other evidence that the lands were chenas at the timethe three and half of four-year old rubber now on the lands wasplanted.
But the strongest evidence against the defendant as to the factsthat the lands are chenas is his own evidence given in case No. 19,061of the Police Court of Kegalla. The date when he gave this evidencedoes not appear in the document (P 18), but it may be gathered tohave been about 1916 from the other evidence in this case. He therespeaks of these two lands as chenas. He said: “ I started clearingthe land, I think, in 1915 or 1914. Before that it was chena jungle. ”
It may, therefore, he fairly stated that according to the statementsto be found in the documents iii this case, and the evidence for thedefence, the defendant and his predecessors-in-title regarded thelands in dispute as chenas from 1893 downwards.
( 117 )
On the other hand, the Crown has called reliable evidence as tothe character of the lands.
Mr. Surveyor Costa states that they were chena lands when hesurveyed them in 1916. He describes them as a ** new clearing ”at that date, and that he reckoned the, jungle which had been felledto have been about twenty years old from the girth of the stumps.It wants but little knowledge of the country to give that opinion.It calls for no expert knowledge. The very nature of a Governmentsurveyor’s work would make him an expert if that term may beapplied to knowledge gained in that way.
The evidence of Mr. Costa is supported by that of B. Banda, theKorala. He says that before the rubber now on the lands wasplanted, the lands were in jungle. Moragahamulahena with a growthseven to eight years old and Galgodahena with a growth over twentyyears old. He says that neither of the lands was mukalana (that is,high forest), but that they were old chenas. I would prefer to acceptthe evidence of this witness to that of Appuhamy. For the betterappreciation of the evidence of the witnesses, I would like to say herethat by long residence in this Island and frequent intercourse withthe villagers, I am quite familiar with the meaning they attach to thewords “ chena ” or “ hena They speak of high forest as “ muka-lana. ” When the trees in a mukalana ” or a portion of one arefelled, and the land cleared whether for planting in rubber, tea, orcoconut, or for cultivation with the ordinary chena products, theywill speak of the clearing as ** hena.” They will continue to do sountil the tea,, or rubber, or coconut begins to yield when the landwill be called ” watta ” (garden), with the name of the productprefixed as tea garden, rubber garden, coconut garden. If chenacultivation is practised, the chena will be cultivated at intervals ofyears, which will range from seven to twenty years according to thenature of the soil or other circumstances. The land will be calledchena, although the jungle may be twenty years old. Such jungleis spoken of as ” landa. " If the land is abandoned'for about fortyor fifty years, and the trees assumed large proportions, it will onceagain come to be called ” mukalana. ”
The word ” chena, ” which is used in the Ordinance, is a termadopted from the Sinhalese villager, and its true significance must besought for according to his use of the term. It is a fallacy to supposethat a land which was a chena, loses its character as a chena immedi-ately it is planted with some product such as tea or rubber. Once achena it remains a chena till it is converted into a ” watta ” or revertsto a “ mukalana. ”
But apart from this short dissertation on the word ** chena,” theevidence in the case establishes that the lands in dispute werechena lands not only in 1893, but also, in September, 1913, and evenat the date of the institution of this action.
1922.
SOHKBIDEB
J *
The
Attorney-General v.Appuhamy
( 118 )
1988.
SOBBSOSB
J.
The
Attomey-Oeneral v.Appuhamy
The evidence also establishes that they are situated within theKandyan Provinces. The provisions of section 6 of the OrdinanceNo. 12 of 1840 therefore apply to them, and the Crown is presumed .to be the owner of them unless that presumption is rebutted in anyof the ways mentioned in that section. The only attempt to rebutthe presumption consisted of the contention that D 1 and D 2constituted a grant by the Crown of the lands in dispute.
This is a contention born of despair. It is unsound, and will notbear examination. For over the past sixty years grants of landsby the Crown have been made by a formal printed document underthe seal of the Colony and bearing the signature of the Governor. Itis expressed in the formal legal language usually employed to effecta conveyance of title. It is known as a Crown grant throughout thelength and -breadth of the land, and is a, document with which mostvillagers- are familiar. It is idle to suppose that the parties to D 1and D 2 ever intended, and thought those documents should or wouldhave the effect of a conveyance of title.
It has been held (The Attorney-General v. Punchiraia *) that- thepresumption in favour of the Crown enacted in section 6 of theOrdinance can only be rebutted in any one of the ways expresslymentioned in that section, and that, therefore, no title can beacquired to the chenas mentioned in that section by prescription.
Then there is the contention which seeks to repel the claim of theCrown by the assertion that the lands in claim are within a ** Gabada-gamn ” or royal village. This contention, too, it seems to me, mustfail for several reasons. First there is no satisfactory evidencethat Ampe is a royal village. The contention that it is a royalvillage is based solely_ upon certain statements_.made by the witnessBalangala Banda. He stated that Ampe was a royal village, and-that the tenants who are paraveni nilaharayas possessed lands,fields, gardens, and chenas. He does not say what his means ofknowledge were either as to the question whether the village ^was aroyal village or as to the nature of the tenancy. His officialduties would not have imparted any such knowledge to him. If itwere a royal village I would expect much more reliable evidenceto be forthcoming, both oral and documentary. No claim of thatkind was put before Mr. Booth. From the document D 4 it wouldappear that this witness was present at Mr. Booth’s inquiry in 1893,probably in his official capacity as Korala. If so, it would havebeen his duty to bring to the notice of Mr. Booth that the villagewas a royal village. Mr. Booth’s judgment indicates that noclaim had been preferred to him by any of the villagers upon thefooting that they were paraveni or perpetual tenants. Defendants’predecessor never claimed to be entitled to these lands as tenants.On the contrary in 1893 and since they have been claiming as beingentitled to the absolute dominium. Mr. Booth could not have.
1 {1919) 21 N. L. B. SI.
( H9 )
restricted the claims to mere chena cultivation or forbidden the'digging of plumbago if the claims preferred were as those of paraveninilaharayaa in o Gubadagama.
Even in this case it was not pleaded that the defendant’s prede-cessors were paraveni tenants, nor was any issue raised as to theirrights as such. The one person who should have been the mostcompetent to give evidence on this point, Haramanis Appuhamywho spld to the defendant, is discreetly silent on this point allthrough his evidence. Such a claim is inconsistent with theattitude taken. up by the claimants before Mr. Booth in 1893 andby Haramanis in D 1.- I would accordingly hold that there is noreliable evidence that Ampe is a royal village. 1 would also holdthat the appellant is not entitled on appeal to attempt to repel theclaim of the Crown upon the ground that Ampe is a royal village,as he had set up no such claim in the lower Court, either byhis pleading or by formulating an issue.
There is yet another reason, why this contention should fail, andthis reason appears to me to bp conclusive. Section 6 of the Ordi-nance No. 12 of 1840 applies to all chena lands in the KandyanProvince, even those in a royal village. Therefore, even if Ampebe a royal village, the ehenas in claim come within the presumption.
As to the .amount of Ks. 15,000 awarded as damages, 1 see nojustification to iuterfere with the order of the learned District Judge.The defendant has not met the evidence produced by the plaintiff.The actual quantity of plumbago^ won from the lands is a factpeculiarly within the knowledge of the defendant. This fact he hasadvisedly refrained from disclosing to the Court. He started hisdigging operations with notice of the claim of the Crown to .the landsand, the denial of his right to do so. He-comes—within-the–maximcontra epoliatorem omnis prcesumuntur.
I therefore dismiss the appeal, with costs. This order as to costswill include the costs of the previous appeal, in which the directionwas that those costs should be costs in the cause.
De Sampayo J.—I agree.
Appeal dismissed^
1988.
SCHMKIDBB
J.
THe
Attorney-
General
Appuhamy