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ATTORNEY GENERAL v. WANDURAGOLA
NLR5V98
ATTORNEY-GENERAL v. WANDURAGOLA.
D. C, Kurunegala, 1,601.
Ordinance No. 12 of 1840. s (C-Chena lands-Cultivated lands-Forest-Jungle-Presumption as regards forest or chena lands-When rebutted-evidence-Survey--Tenement sheet.
Per Lawrie, A.C.J.-A chena. according to Sir John d' Oyly, is high jungle ground, in which the jungle has been out and burnt for manure at intervals of from five to fourteen years, for the purpose of cultivating dry grain (such as hill paddy, Kurakkan. &c). and roots (such as mannoca. sweet potatoes, &c), and other vegetables.
The periodical cutting of the jungle and sowing of the land with fine grain, being hurtful to the soil and the villagers, cannot be said to be bringing the land into cultivation, and this seems to be one of the reasons why the Legislature, by section 6 of the Ordinance No. 12 of 1840, declared that chena lands should be deemed to be " forest or waste lands. "
The better the proof that the and in dispute between the Crown and a private party is chena, the stronger is the presumption that it belongs to the Crown.
In the case of lands situate within the Kandyan Provinces, this presumption is rebuttable only by proof of a grant by the Crown or by payment of tax to it.
It is not to be rebutted by proof such as that, more than a hundred years ago, the land was private property, and had been chenaed for sixty years before the institution of the suit by the Crown.
If it had been a chena for sixty years since 1840, the Ordinance No. 12 of 1840 applies. If it has ceased to be a chena and is now a forest, then too the Ordinance applies.
The presumption is not confined only to cases instituted under section 1 of the Ordinance, but arises generally.
The tenement sheet attached to a survey made by an officer of the Surveyor-General's Department cannot be referred to in explanation of the survey, unless it is properly proved.
ACTION ret vindicatio by the Crown instituted on 30th June, 1898. The Attorney-General, on behalf of the Crown, alleged in his plaint that the defendants in February, 1898, trespassed upon five contiguous allotments of land forming the forest called Kekirigoda-mukulana, mined for plumbago in two of the said allotments (F and H), and removed ten tons of plumbago there from of the value of Rs. 2,500. He prayed that the forest may be declared the property of the Crown, that defendants be ejected there from, and that they be condemned to pay Rs. 2,500 as damages, &c.
The first defendant denied the trespass, but admited that in February, 1898, he took on lease lots G and H from one Mudalihamy, who claimed to be the owner of them, dug a pit on lot H, and removed ten tons of plumbago, but that he desisted from working the pit after the Crown asserted title to it.
The second defendant denied the title of the Crown and averred that, as lessee under certain persons, be held possession of a, certain portion of the land described in the plaint and had been working a pit on lot H since April, 1808.
It appeared in evidence that the land in dispute consisted of 51 acres, and was bounded on the north and east by villages, and on the south and west by private properties, that in a portion of the land adjoining the private properties in the west several plumbago pits had been opened by different persons; and that the pit from which the ten tons mentioned in the plaint were removed was one of these pits.
As regards the condition of the land, the District Judge (Mr. S. Haughton) found as follows: -
" Now, what kind of land exactly are we dealing with in the present case? There appears to be no good reason for questioning the evidence either of the Forest Officers or of the Ratemahatmayas, Korala and Arachchi who have given evidence for the plaintiff, and having inspected the land myself on the 16th ultimo in company with Mr. Hansard and the Chief Clerk, Court Mudaliyar, the headman, the defendants, the plaintiffs, surve
