1941 Present: Nihill J.

HETHUHAMY v. BOTEJU.

128-C. R. Ratnapura, 281.

Land Settlement Ordinance (Cap. 319), s. 8-Effect of settlement order-Vesting of title. in claimant free from all unspecified interests-Right of bona fide possessor to compensation.

Under section 8 of the Land Settlement Ordinance the effect of. a settlement order is to declare the Crown or any person to be entitled to a land or such share or interest in the land free from all encumbrances and to the exclusion of all unspecified interests.
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The words" unspecified interests" refer to unspecified interests in' the title and they do not deprive the right of a bona fide possessor of the land to compensation for improvements.

84.

APPEAL from a judgment of the Commissioner of Requests, Ratnapura.

G. P. J. Kurukulasuriya (with him U. A. Jayasundere), for plaintiff, appellant.

N. Nadarajah respondent. (with him E. B. Wikremanayake), for defendant,

Cur. adv. vult.

November 4, 1941. NIHILL J.

This is an appeal and a cross-appeal from the Court of Requests, Ratnapura. There is no contest on the facts, which are as follows;- By Settlement Order 25 (Ratnapura), which was published in the Ceylon Government Gazette No. 7,498 of October 14, 1932, " (P 1) land known as lot No. 77c was settled upon the plaintiff-appellant without any encumbrances. The total extent of this lot is about 5 acres and 13 perches. Of this lot the defendant-respondent had been in possession of a strip, 1 rood and 13 perches in extent, on the east which abutted the western boundary of land purchased by him in 1926 from the villagers. He had enclosed this strip with his other land and had planted rubber. That was the position when the plaintiff entered into an agreement with the Crown in 1928 under the provisions of section 4 of the Waste Lands Ordinance (Ordinance No.1 of 1897). The defendant remained in possession of this strip and this action was brought for ejectment and damages. The defence to the action was that the defendant had acquired a title to the strip by prescription and that in any event he was entitled to compensation for improvements. The learned Commissioner decided against the defendant on the issue of. prescription on the ground that the strip in question was regarded as the property of the Crown until the date of the Settlement Order in 1932, and that prescription against the plaintiff could only run from that date. He found also that the Settlement Order was conclusive as regards title in the plaintiff's favour and he awarded him damages for being kept out of possession for the two years prior to the institution of the action. He found that the defendant's possession had been bona fide and awarded him' Rs. 56 as compensation for" his planting trouble". The plaintiff-appellant has now appealed against that part of the order of the Commissioner which relates to the payment of compensation and the defendant-respondent in his cross-appeal has challenged the correctness of the order on the issue of prescription and asserts that he is entitled to a recovery of the land inasmuch as there was willful suppression by the plaintiff-appellant at the settlement inquiry of the fact that the defendant-respondent was in possession .and alone had improved that portion of the land. He claims also that the amount of compensation awarded to him was inadequate and that he should at least have been allowed a jus retentionis over the land until payment of compensation.

The first point for consideration is the legal effect of the Settlement Order. Does it or does it not confer an unencumbered title on the plaintiff-appellant? To examine this it will be necessary to study the inter-relationship between Ordinance No.1 of 1897 and the Land Settlement Ordinance (Cap. 319), which came into force on October 23, 1931.

This Ordinance repealed Ordinance No.1 of 1897, i.e., the Waste Lands Ordinance; but section 2 of Ordinance N