Bartholomeusz V. Hutt

Present. Schneider J. and Jayewardene A. J.

BARTHOLOMEUSZ v. HUTT.

184-D. G. Kandy, 26.

Waste Lands Ordinance-Claim for half-improved value-Reference to Court-Powers. of District Court-Statement of claim-Parties to reference-Ordinance No. 1 of 1897, ss. 6 (b) and 8.

Where a claim made under the Waste Lands Ordinance before the Assistant Government Agent that a land be settled on the, claimant upon his paying the half-improved value was referred to the District Court, and where the District Judge declared the claimant absolutely entitled to a portion of the land in claim.

Held, that the. Court had no power to grant the claimant a larger right than that claimed by him in the statement of claim.

Obiter-The proceedings in Court should be confined to the persons named in the reference, except in the special case contemplated by section 8 of the Ordinance.

APPEAL from a judgment of the District Judge of Kandy in a reference made to Court under the Waste Lands Ordinance, by the Assistant Government Agent of Kandy, of a claim made by the first respondent that an allotment of land called Welikanda of the extent of 5 acres 3 roods and 8. 8 perches be settled upon him, on paying the half-improved value. The statement of claim alleged that one F. B. Bartholomeusz admitted the right of the Crown to the allotment in question, and was prepared to pay the Crown half-improved value, but that he was unable to pay, and was, therefore, permitted by the Crown to possess till he was able to pay. It further disclosed-that the first respondent was not the only heir of F. B. Bartholomeusz. In consequence of this disclosure, five other persons were noticed and made parties to the proceedings in Court. They filed their statements of claim and appeared by the same proctor.

The learned District Judge made order declaring the claimants entitled to an extent of 1 acre 1 rood and 27 perches, and the rest to be the property of the Crown.

The Crown appealed.

S. Obeyesekere, G. G., for defendant, appellant.

H. V. Perera, for claimants, respondents.

March 19, 1925. Schneider J. -

This action originated by a reference made to the District Court of Kandy by the Assistant Government Agent of the District of Kandy acting under the provisions of section 5 of the Ordinance 26/36

No. 1 of 1897 relating to " Claims to Forest, Chena., Waste, and Unoccupied Lands. " The only claimant named in this reference is the first respondent to this appeal. It is alleged in the reference that he made a claim to an allotment of land called Welikanda of the extent of 5 acres 3 roods and 8. 8 perches, depicted as lot No. 1 in preliminary plan No. 7, 002 (marked Z); and bounded on the north by Welikanda (lot 2 in preliminary plan 7, 001), on the east by T. P. 50, 120, on the south by Mahaiyawa-ela, a grass field of the Ceylon Government Railway (Crown), and Welikumbura claimed by the Ceylon Government Railway (Crown) and Welikumbura claimed by Mis. S. A. Carthigaser, on the west by T. P. 325, 690, T. P. 325, 233, T. P. 325, 232, Welikanda claimed by Mrs. S. A. Carthigaser, and Oruwaketuwawatta claimed by Mr. George E. de La Motte.

The first respondent appeared before the Court and duly filed a statement of claim, in which he does not traverse the correctness of the description of the land as given in the reference, but sets out that a " land called Welikanda of 12 acres and 3-2 perches, save and except an extent of 5 acres 3 roods 8 perches to the south by the side of Mahaiyawa-ela, belonged to one Mr. Gomis who, on deed No. 9, 040 of 1873, sold and transferred the same to F. B. Bartholomeusz. He does not give the boundaries of this land (paragraph 1). Clearly this paragraph means but one thing, and that is, that neither Mr. Gomis nor Mr. Bartholomeusz, by virtue of the transfer by Mr. Gomis, was entitled to the allotment of 5 acres 3 roods and 8 perches, which for convenience I shall hereafter speak of as

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