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SILVA v. ABERAN
NLR7V330
SILVA v. ABERAN.
C. R., Galle, 2,366.
Crown grant-Nature of the title.
On a purchaser from the Crown a Crown grant confers absolute dominion, superseding all other title existing at the date of the grant, unless such title has been derived from the Crown itself.
The remedy for any person claiming to have had at the date of the grant better title than the Crown is an action for damages against the Crown.
THE plaintiff, basing his title on a Crown grant dated 16th May, 1890, in favour of his vendor, alleged possession up to December, 1901, and an ouster in that month by tike defendant, and prayed for ejectment and declaration of title in his favour. The defendant denied the ouster and claimed title by prescriptive possession of more than thirty-three years next before December, 1901.
The plaintiff raised the issue whether a Crown grant in Ceylon conferred indefeasible title. At the trial in the Court below, 7th March, 1904, the Commissioner of requests, Mr. G. A. Baumgart-ner, held that it did; that the plaintiff's vendor started with a title unchallengeable by the defendant, who, therefore, could only succeed by showing prescriptive possession since the date of the Crown grant; that occupation of the land as shown by the plantations on it had not begun before 1887; and that the evidence as to who had possession subsequently to the sale by the Crown was conflicting, but preponderated in favour of the plaintiff. He, therefore, gave judgment for the plaintiff.
On the question of the indefeasible nature of the title conferred by a Crown grant in Ceylon, he referred to the following authorities: 2 C. L. R. 43, 2 N. L. R. 33, 4 N. L. R. 343: in which the question was referred to as an open one, but was not adjudicated on; Justinian's Institutes 2, 16, 14: " but a constitution of Zeno of sacred memory has completely protected those who receive anything from the fiscus by sale, gift, or any other title, by providing that they themselves are to be at once secure and made certain of success, whether they sue or are themselves sued in an action. While they who think that they have a ground of action as owners or mortgagees of the things alienated may bring an action against the sacred treasury within four years: " Sandar's Translation, p. 146; Voet, 49, 14, 2 de Jure Fisci; 18, 4, 8 de Hoereditate Vendita; 12, 2, 5 de Evictionibus; 41, 3, 21 de Usucapionibus; Groenewegen De Leg. Abr. and Digest., 49, 14, 5; 2 Thomson's Institutes, 509.
Neostadius (Decisions of the Court of Holland, decision 15) in the case of Harweyer v. Bruijns was also cited . as showing that the Roman-Dutch Law maintained the principle that a Crown grant conveyed absolute dominium.
And on the question whether this principle formed part of the law in force under the Dutch Government in Ceylon, he referred to D. C., Colombo, 60,664, Grenier, 1873, p. 129; to Creasy's Reports, pp. 162, 164; to the Legislative Acts of the Dutch Government in Ceylon, namely, advertisement of 8th April, 1744, and Proclamation of 15th November, 1745, as supporting the conclusion that the principle in question did form part of the laws and institutions which subsisted under the Dutch Government in Ceylon.
He next pointed out that the principle must still be in force by virtue of the second paragraph of the Proclamation of 23rd September, 1799, as there has been no enactment to the contrary "by lawful authority, that is, either by the Legislature of Ceylon or by the Crown itself, with or without the advice of the Privy Council, under the powers always reserved to the Crown by the
Charter of 18th April, 1801, and subsequent Charters and Letters Patent.
The learned Commissioner then pointed out that Ordinance No. 12 of 1840 had for its declared purpose the prevention of encroachments by individuals on public property-that is to say, the protection of the Crown; and must be
