COREA MUDALIYAR v. PUNCHIRALA

COREA MUDALIYAR v. PUNCHIRALA.

P. C., Chilaw, 1,547.

Forest Ordinance, 1885-Land at the disposal of the Crown-Ordinance No. 12 of 1840, s. 6-Chena lands.

In a prosecution for clearing land at the disposal of the Crown not included in a village or reserved of forest, in breach of a rule made under chapter IV. of The Forest Ordinance, 1885:

Held, per Lawrie J.-The words " chenas and other lands which can be only cultivated after intervals of several years," occurring in section 6 of the Ordinance No. 12 of 1840, mean lands which were so cultivated at the date of the passing of the Ordinance, and may include lands fit for the cultivation of tea and cocoanut palm.

THE accused in this case was charged under sections 41 and 42 of the Forest Ordinance with having cleared a land at the disposal of the Crown, not included in a reserved or village forest, without obtaining a permit from the Government Agent, as provided by rule 1 of the rules and regulations dated 6th January, 1887, made in terms of chapter IV. of that Ordinance.

It was proved for the prosecution that the land in question was overgrown with low scrub; that the tract appeared to have been previously cultivated; that chena cultivation had been

made at intervals of many years; that the accused's house adjoins the land cleared by him; that the villagers laid claim to the whole village where the land was, asserting communal rights on the footing that they were the co-owners of all the low jungle, though they had no sannas or deed of any kind in their favour. It was admitted that the land was well suited for cocoanut cultivation.

The accused, giving evidence in his own favour, deposed that he and other occupants of the village claimed the particular allotment together with the rest of the village; that they were related to each other; that some of the villagers had married and gone to other villages; that neither he nor his co-owners had a sannas or other deed in their favour; that he claimed the land in question as communal property which had come down to him by inheritance; and that he and others cultivated chenas for themselves without permits from the Government Agent.

The Police Magistrate found that some of the lands in the village had been chena before, but that the villagers had no right to the land as against the Crown.

He convicted the accused and sentenced him to a fine of Rs. 20.

Accused appealed.

Rudra, for appellant.-This is not a proper case for criminal prosecution, as the accused claims the land by inheritance. In D. C,, Kalutara, 28,686 {Ram. 1877, p. 166), payment by a landowner of one-tenth of its produce to Government was held to be evidence that it was a private land. It is proved in this case that the villagers paid one-tenth tax. In Queen's Advocate v. Appuhamy (1 S. C. C. 26), Phear, C.J., held that in order to bring a land within the meaning of section 6 of Ordinance No. 12 of 1840 it was necessary to show that the land is chena or other land, which, in the same sense as chena, is incapable of being cultivated otherwise than at intervals of several years. So in Kirihamy v. Fernando (2 S. C. C. 88), it was held that if chena lands were possessed as appurtenances to ancestral paddy lands, such chenas would become private property. And in Meera Lebbe v. Juan Fernando (2 S. C. C. 140), it was laid down that the mere fact that a land which had been formally occupied or cultivated was, at the time when the dispute as to its ownership arose, unoccupied or uncultivated, would not by itself give rise to the statutory presumption in favour of the Crown. Chena lands are different from ordinary lands. Ordinarily, land though not cultivated every year is cultivable every year, but chena lands being poorer in the soil cannot be so cultivated, they are left fallow for a number of years before they become fit for produce. It has not been proved that the land in respect of which the accused is charged

Click Here to Read the rest of this document