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FERNANDO v. TEGIS APPU
NLR5V330
FERNANDO v. TEGIS APPU.
D. C., Kalutara, 2,092.
Cultivation of Crown land by several persons-Contribution by them all of half-improved value under Ordinance No. 12 of 1840-Crown grant in favour of one cultivator only-Sale by that cultivator to plaintiff of a divided portion-Action in ejectment against other cultivators in possession- Their right to retain possession in spite of the Crown grant-Duty of Court to try the real question at issue between the parties.
Where a Crown land was cultivated by several persons and each contributed his share of half the improved value, in terms of the Ordinance No. 12 of 1840. to S M, one of the co-cultivators, and deputed him to apply to the Crown on their behalf for a grant, and such grant was made in favour of that cultivator only, but they continued to be in possession together; and where S M purported to sell a divided portion to F, and F sued in ejectment S M's co-shares, sieving ouster; and where the District Court found that there was no ouster and dismissed plaintiff's
Held, that it was the duty of the Court to try the real issue between the parties, namely, whether the defendants have possessed their shares for a period of ten years previous to action, and that the decision of the majority of the Supreme Court in Lenohamy v. Samuel (2 C. L. R. 101) should not be understood as depriving co-owners, who claim in rei vindicatio and fail to prove the alleged ouster, of all farther right of action to the land.
Per Bonser, C.J.-If, in such a case, the Court finds the plaintiffs have alleged an ouster which they cannot prove, or what it thinks is fictitious, it may punish them in costs, but cannot deprive them of further opportunities of maintaining their claim to the land.
THE plaintiffs in this case were the landlord and his lessee. They complained of ouster by the defendants and prayed for a declaration of title in favour of the first plaintiff and for ejectment of the defendants.
The first plaintiff claimed under one Sultan Marikar, to whom the Crown had granted the land on the 21st March, 1871, on payment by him of half the improved value, under Ordinance No. 12 of 1840.
The defendants laid claim to one-half of the entire land under a conveyance from one Samsi Lebbe of about five acres, and from Sultan Marikar himself of about two acres. They further alleged that, when the Crown put up for sale the land in suit in 1869, Sultan Marikar and his co-sharers (the predecessors in title of the defendants, intending to buy the land, agreed that Sultan Marikar should bid for it and buy it for himself and his co-sharers, and that the grant passed by the Crown in favour of Sultan Marikar was really for himself and his co-sharers. They denied the right of Sultan Marikar to convey title to a defined portion of the said land to the plaintiff.
The issues tried by the District Judge were: (1} did Sultan Marikar have a Crown grant in 1871, and was it in his favour alone, or for himself and others; (2) did he convey to the first plaintiff a defined south-western portion; (3) did defendants disturb and oust the plaintiffs; and (4) if so, what was the damage suffered by them?
The District Judge (Mr. Allan Beven), after hearing evidence, delivered judgment as follows: -
I do not think it unusual for a Crown grant to be made out in the name of one person while there are several other shareholders to the land. The question for me to decide is whether subsequent to the issue of the Crown grant to Sultan Marikar the defendants were regarded as co-owners of this land. 1 urn satisfied that the father of the first three defendants asweddumized the field with the original owner Samsi Lebbe, for I cannot but regard Samsi Lebbe as the original owner, in spite of the Crown grant in favour of Sultan Marikar. For a long period from 1824 to 1871 by act of possession and cultivation they were regarded as owners.
" By deed No. 4,728, January, 1861, Samsi Leb
