Dingiri Banda Et Al. V. Podi Bandara

1927 Present: Fisher C.J, and Drieberg J.

DINGIRI BANDA et al. v. PODI BANDARA.

477-D. C. Ratnapura, 4,410.

Waste Lands Ordinance-Admission of claim-Absolute title-Claim cm behalf of co-owner-Ordinance No. 1 of 1897, s. 4 (I),

Where an order is made under section 4 (1) of the Waste Lands Ordinance containing the simple admission of a claim,-

Held, that the order embodying the admission did not give absolute title to the claimant,

Kiri Menika v. Appuhamy 1 [(1916) 19 N. L. R. 298.] distinguished.

APPEAL from a judgment of the District Judge of Ratnapura.

H. V. Perera (with Deraniyagala), for plaintiffs, appellants.

H. H. Bartholomeusz, for defendant, respondent.

October 21, 1927. FISHER C.J.-

I have read the judgment of my brother Drieberg, with which I entirely agree. I would only add that the respondent appeared before the Settlement Officer and laid claim to the land expressly on behalf of himself and his co-owners. There is nothing in the Waste Lands Ordinance to make it unlawful or improper for one of several co-owners to make a claim on behalf of himself and his co-owners, and when he does so I think the co-owners must be regarded as persons making claim under the Ordinance.

DRIEBERG J.-

This action was brought for the partition of a land 40 acres and 11 perches in extent. The plaint alleged that it was the property of associated husbands, Appuhamy and Mudianse. The 1st plaintiff-appellant, the 2nd plaintiff-appellant, and the 6th defendant, the respondent, are their children. The other parties derive their title from the three other children of these two persons.

The respondent admitted the pedigree filed with the plaint, but he denied that Appuhamy and Mudianse were the owners of the land; he pleaded that the land had been dealt with under section 4 (1) of the Waste Lands Ordinances of 1897, 1899, and 1900, and that he had been declared the purchaser of it. This is however a wrong description of what was done.

After recording the evidence of the Reference Clerk and examining the documents showing the dealings with this land, the learned District Judge held on the authority of Kiri Menika et al. v. Appu-Hamy et al.1 [(1916) 19 N. L. R. 298.] that the respondent had acquired absolute title to the land and he dismissed the action.

It is necessary to examine fully how this land was dealt with in the proceedings under the Waste Lands Ordinance.

By Proclamation (D 1) of March 24, 1911, 1,900 acres in the village of Marapona were proclaimed under section 1 of the Ordinance. On May 3, 1911, the respondent by his letter P 1 claimed that he and his brothers were the owners of certain panguwas in the village, that he had documentary evidence to prove their right, title, and interest in them, such as notarially deeds, wattorus, &c, and concluded with a prayer that the Settlement Officer should inquire into their rights to these panguwas and " do justice."

This petition was treated as a claim and there was an inquiry, at which the respondent said that he claimed by inheritance. He sought to prove that these were ancestral lands by the production of a registered ola grant by Pileme Talawe to an ancestor of his.

On January 29, 1912, the respondent and the Settlement Officer entered into an agreement (6 D 4) under section 4 (1) of the Ordinance; by this the Settlement Officer agreed to settle a 10-acre lot as private property outside the Waste Lands Ordinance and to declare the respondent the owner of an allotment of 40 acres more or less, shown roughly as No. 16 in lot 31 in the sketch attached to the notice. This is the lot in dispute and now appears as lot 31ch of 40 acres and 11 perches in the published order. The respondent agreed to withdraw all claims to the remainder of the lands in the notice, and the agreement was further subject to the claims of all the other claimants being withdrawn or dismissed by judicial decree or se

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