Silva V. Kindersley

Present: Wood Renton A. C. J. and Pereira J.

SILVA v. KINDERSLEY.

90-D. C. Kurunegala, 4, 666.

Register of temple lands-How far binding on Crown-Proceeding under Waste Lands Ordinance-Surveys prepared by Government surveyors-Burden of proof that lands an depicted in surveys were not included within the boundaries given in the register-Ordinance No. 12 of 1840, s. 6-Presumption-Land in Kandyan Provinces.

A register of temple lands prepared under the provisions of " The Temple Lands Registration Ordinance, 1856, " is binding on the Crown in ail questions touching the boundaries and extents of the several lands claimed by the temple concerned, and no assumption of a mistake in the register can be permitted.

Where in a proceeding under the Waste Lands Ordinance a number of surveys prepared by officers of Government were produced by the Crown as evidence of the fact that the lands in claim were not included in a certain register of temple lands under " The Temple Lands Registration Ordinance, 1856, "-

Held that, inasmuch as matters in connection with the surveys were especially within the knowledge of the Crown, the burden lay on it to establish that the lands in claim as depicted in those surveys were not included within the boundaries given in the register.

The presumption under section 6 of Ordinance No. 12 of 1840. so far as it concerns chena lands in the Kandyan Provinces, does not apply to such lands in respect of which sannases and grants were never issued, and taxes, dues, or services were never paid or rendered.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for the third plaintiff, appellant.

Garvin, Acting S. G., and V. M. Fernando, C. C., for the defendant, respondent.

Cur. adv. vult.

October 3, 1913. Pereira J.-

This is a case under the Waste Lands Ordinance. The reference relates to eight allotments of land marked 1, 55, 9, 21, 35, 30, 34, and 49 in preliminary plan No. 556 (D 9). The present contest is between the third plaintiff as trustee of the Buddhist temple at Kandy known as the Dalada Maligawa on the one side, and the

Government Agent as representing the Crown on the other. The main question for decision is whether the allotments of land referred to above are among the lands mentioned in the register prepared in terms of section 21 of the Temple Lands Registration Ordinance, 1856, by the Commissioners appointed under the Ordinance. The extract 3 P 18 tiled of record has been taken from this register. I may mention that it was a question in the Court below whether the document from which 3 P 13 had been extracted was in fact a register made under section 21 of the Ordinance. The District Judge held that it was so. The third plaintiff acquiesced in this decision, and the respondent's attitude has always been in accordance with it.

Now, subject to what I shall say later on the subject of prescriptive possession and of the presumption under section 6 of Ordinance No. 12 of 1840, the whole question in the case appears to me to resolve itself into this: Whether the lands declared to belong to the Dalada Maligawa in the register under the Temple Lands Registration Ordinance, 1856, have been correctly defined in the plans filed, and set aside as lands not belonging to the Crown? As observed by the District Judge, the register is, under section 8 of the Ordinance, binding on the Crown in all questions touching the " boundaries or extent of any lands whatever claimed by the temple. " It therefore appears to me to be of primary importance that the lands allowed to the temple in the register should be correctly defined. Now, Mr. Davis, the Crown witness, enumerates the boundaries of the lands of the temple as given in the register, produces plan D 6, and says: "This plan follows that limit closely, " but he admits in cross-examination that in the plan the Maligawa land does not come down to the limit of Kudagamana Ganima as shown in the survey of 18

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