1945 Present: Soertsz A.C.J., Wijeyewardene, Cannon, Rose and
Canekeratne JJ.

APPUHAMY, Appellant, and MARTIN et al, Respondents.

251-D. C. Matara, 8,950.

Ordinance relating to Claims to Forest, Chena, Waste and Unoccupied Lands, No. 1 of 1897, s. 4 (2)-Order of Special Officer-Binding in rem- Meaning of words " final and conclusive ".

Held by Soertsz A.C.J., Cannon, Rose, and Canekeratne JJ. (Wijeyewardene J. dissenting):-

Proceedings under the Ordinance relating to Claims to Forest, Chena, Waste and Unoccupied Lands, No. 1 of 1897, are proceedings in rem, and an order embodying an agreement or admission and falling under section 4 (2) of that Ordinance gives to the claimants mentioned in the order a title good against all others, including the claimants who failed to appear before the Special Officer.

The ruling in Kiri Menika v. Appuhamy (1916) 19 N.. L. R. 298, followed, and the modification of it in Gunasekera v. Silva (1917) 4 C. W. R. 226 and Dingiri Banda v. Podi Bandara (1927) 29 N. L. R. 357, not followed.

THIS was a case referred by Howard C.J. to a Bench of five Judges under section 51 of the Courts Ordinance.

A tract of land, 207 acres and 1 rood in extent, was the subject of a notice under section 1 of Ordinance No. 1 of 1897. Seven claimants came forward and preferred a claim to the lands involved in the notice. The Special Officer held an inquiry and, under section 4 of the Ordinance, entered into an agreement with the seven claimants by which he admitted their claim to an extent of 133 acres, and the remainder was declared to be the property of the Crown. This agreement was embodied in Orders P 3 and P 4 of October 12, 1900, which were duly published in the Government Gazette. The plaintiff in this action sued for the partition of the 133 acre extent in respect of which the claim of the seven claimants was admitted by the Special Officer. He contended that the seven claimants alone were entitled to the land in consequence of Orders P 3 and P 4, whereas some of the defendants maintained that not only the seven claimants but also all the others who had been co-owners with them prior to the admission of the claim of the seven claimants should be regarded as entitled to this land although they themselves did not appear before the Special Officer.

H. V. Perera, K.C. (with him S. R. Wijetileke), for plaintiff, appellant. The question for determination is whether an order embodying an agreement or admission under section 4 (2) of the Waste Lands Ordinance, No. 1 of 1897, gives to the claimants mentioned in the Order a title good against all others including the claimants who failed to appear before the Special Officer. The section contemplates an agreement or admission and an order embodying such agreement or admission, and declares such order to be " final and conclusive ". The finality and collusiveness is attached to the adjudication The Special Officer has the status and is given

the powers of a tribunal. The preamble to the Ordinance refers to " adjudication " of claims. The intention of the Ordinance is to shut out non-claimants. The agreement or admission when embodied in the Order not merely binds the parties but is conclusive as to title. If finality is only as regards the agreement then third parties are not bound. If finality is as regards the proceedings then third parties are bound. In Kiri Menika v. Appuhamy1 de Sampayo J. held and Order under section 4 (2), based on proceedings that ended in an agreement between the Crown and the claimants, to be final and conclusive. In Gunasekera v. Silva2 a distinction was drawn between an Order embodying a simple admission of a claim and an Order embodying an agreement, and de Sampayo J. held that his earlier decision as to conclusiveness and finality only applied to the latter type of Order. It is submitted that this distinction is logically unsound. Section 4 provides for the e