Wanduragala V. Senmanda Et Al.,

Present: De Sampayo J.

WANDURAGALA v. SENMANDA et al.

5-C. R. Kurunegala, 4, 946.

Nindagama-Grant of royal village by the British Government-Muttetu fields-Action by one co-owner-Registration of nindagama- Conclusive proof-Service Tenures Ordinance, No. 4 of 1870, s. 10.

A claim to a nindagama cannot be based on a grant from the British Government of "muttetu fields" only.

The registration of a land as a nindagama is not conclusive proof of its existence as a nindagama.

The owner of an undivided share of a nindagama cannot sue the tenants for commuted dues without joining the co-owners as parties to the action.

THE plaintiff as the owner of Gettuwana nindagama sued the defendants, forty-three persons in all, as the paraveni tenants of the Galahitiyawa panguwa of the said nindagama for the recovery of a sum of Rs. 64. 50 as the commuted dues of the said panguwa for the years 1922 and 1923. According to plaintiff, the original owner of the nindagama was Wanduragala Mohottala, Ratelekam. He left one child, Bandara, who had two children. P. B. Wanduragala and Mrs. Hulugalla. P. B. Wanduragala, by deed No. 32, 175 dated January 11, 1913, gifted his half share to his wife Embelegoda Kumarihamy. In the year 1918, P. B. Wanduragala and his sister, Mrs. Hulugalla, it was alleged, made an amicable division of their family lands, the former taking the entirety of this nindagama. The plaintiff claimed on a deed of transfer No. 423 dated July 4, 1923, executed by Embelegoda Kumarihamy. The Commissioner of requests held that "by virtue of the arrangement specified above the plaintiff on the deed of transfer became the sole proprietor of the nindagama, and gave judgment for the plaintiff.

Drieberg, K. C. (with Croos Da Brera), for defendants, appellants. - The plaintiff is the owner of an undivided half share of the nindagama. She cannot, therefore, maintain the action for dues without joining the co-owners as parties (Banda v. Lapaya [1 (1891) 2 C. L. R. 38.] ). The Crown grant gives the plaintiff only two amunams of muttettu fields, but she is claiming the lands in dispute as a nindagama, which cannot be composed of muttettu fields only. The grant itself negatives the idea of a nindagama. The entry in the Service Tenures Register is not conclusive. Evidence can always be led to disprove this entry (Punchirala v. Kandapat vihare [2 (1884) 6 S. C. C. 157.] ). The judgments in the Village Tribunal cases are not binding on the defendants. They  

were decided without jurisdiction. The land is situated within the limits of the Local Board of Kurunegala. The value of the land is over Rs. 20. There is no evidence of payment of dues. The plaintiff's rights, if any, are therefore prescribed. The account book produced has not been kept in the ordinary course of business.

H. V. Perera (with Samarakoon), for plaintiff, respondent. - The account books were never challenged. They were kept by the plaintiff's predecessor in title. Entries were made whenever payments were made. The plaintiff's witness states that he knew personally of these payments. The defendants are bound by the Village Tribunal cases, which were merely for rent. The plea of jurisdiction cannot therefore be raised. The judgments in these cases certainly arrested prescription. The nature of the Crown grant shows that extensive rights were granted. The description is wide enough to include the claim of the plaintiff.

Drieberg, K. C., in reply.

April 8, 1925. De Sampayo J. -

The amount involved in this case in small, but some important and interesting questions arise for consideration, and their effect will be far reaching. The plaintiff, alleging that she is the owner and proprietor of Gettuwana nindagama, and that the defendants, forty-three persons in all, are the paraveni tenants of the Galahitiyawa panguwa of the said nindagama, claims Rs. 64. 50 as the commuted dues of the said panguwa for the y

Click Here to Read the rest of this document