[IN THE PRIVY COUNCIL]

1960 Present: Lord Tucker, Lord Keith of Avonholm, Lord Jenkins,
Lord Morris of Borth-y-Gest, Mr. L. M. D. de Silva

THE LAND COMMISSIONER,

Appellant, and V. P. JAYEWARDENE
and another, Respondents

PRIVY COUNCIL APPEAL No. 26 OF 1959

S. C. 191-D. C. Colombo, 6499/L
 

    Land Redemption Ordinance, No. 61 of 1942 (as amended by Ordinance No. 62 of 1947)-acquisition of lands by Land Commissioner-Section 3 (1) (b) Construction.

Where several lands are mortgaged, and the mortgagor transfers to the mortgagee some but not all of the lands in satisfaction of the mortgage decree

entered against him, section 3 (1) (6) of the Land Redemption Ordinance is applicable if the Land Commissioner subsequently makes a determination to acquire a part of the lands conveyed.

APPEAL from a judgment of the Supreme Court reported in (1958) 60 N. L. .11. 265.

E. F. N. Gratiaen, Q.C., with Walter Jayawardene, for the defendant-appellant.

Sirimevan Amerasinghe, for the plaintiffs-respondents.

Cur. adv. vult.

July 27, 1960. [Delivered by LORD MORRIS or BORTH -Y-GEST]-

This appeal is brought against the Judgment and Order of the Supreme Court of Ceylon dated the 7th February, 1958 (Basnayake, C.J., and Pulle, 1, K. de Silva, J., dissenting) arming a Judgment and Decree of the District Court of Colombo dated the 6th November, 1953. By such Judgment the District Court directed that an injunction should issue in favour of the plaintiff in the action restraining the Land Commissioner from acquiring certain lands under the Land Redemption Ordinance. The principal issue which is raised in the appeal is one of the construction of that Ordinance (No. 61 of 1942).

The facts which gave rise to the proceedings are not in controversy. One Suriyapperuma owned certain lands which by Bond No. 1987 dated the 30th January, 193'2, he mortgaged to one Cyril Pinto Jayewardene as security for the repayment of a sum of Rs. 5,500 which had been lent to Suriyapperuma. Jayewardene put the mortgage bond in suit and obtained a mortgage decree dated the 18th July, 1934. Thereafter by deed dated the 20th July, 1935, Suriyapperuma conveyed to Jayewardene some but not all of the hands which had been mortgaged. The conveyance was in satisfaction of the amount due on the mortgage decree. Possession of the lands conveyed was taken Jayewardene died in August, 1937, and his widow and child who were the plaintiffs in the action which was later brought acquired title to the lands conveyed as heirs of Jayewardene. At a much later date (the 31st December, 1950) the Land Commissioner made a determination to acquire two lands being part of the lands conveyed by the Deed of the 20th July, 1935. The determination was made under section 3 (1) (b) of the Land Redemption Ordinance. Notice was given by the Land Commissioner to the two plaintiffs who in 1952 commenced proceedings against the Land Commissioner. By their Plaint dated the 24th March. 1952, they stated that the two lands did not fall "within the description in section 3 of the Land Redemption Ordinance No. 61 of 1942 " and that they were not therefore subject to acquisition by the Land Commissioner under the Ordinance. The plaintiffs claimed an Injunction restraining the Land Commissioner "from the acquisition

of  the two lands. In the Answer of the Land Commissioner it was pleaded that his determination was final and could not be canvassed in a court of law and it was further pleaded that the action was wrongly constituted against the Land Commissioner inasmuch as any steps for the acquisition of the lands would be taken by the Minister and not by the Land Commissioner.

As mentioned above the claim succeeded and it was directed that an Injunction should issue. At the trial of the action issues were framed and were answered as follows:

Issue

Answer

"1. Are the lands in question capable of being acquired under section