[IN THE PRIVY COUNCIL]

1961 Present: Lord Keith of Avonholm, Lord Denning, Lord Morris of
Borth-y-Gest, Lord Hodson, Mr. L. M. D. de Silva

C . H. MATILDA PEIRIS, Appellant, and C. M. CLARA
FERNANDO and another, Respondents

PRIVY COUNCIL .APPEAL No. 22 OF 1959

S. C. 346-D. O. Kegalle, 6269

Chena land in Kandyan Provinces-Title in Crown--Rei vindicatio action between parties other than Crown--Proof of prescriptive possession for not less than ten years nor more than thirty years-Value of "village title "-Requirement of proof of physical possession--Grown Grant-Publicity of investigation preceding grant-Crown Lands Encroachments Ordinance No. 12 of 1840 (as it originally stood), ss. 6, 8.

Appellate Court-Circumstances when it may interfere on findings of fact of trial Judge.

In an action rei vindicatio in respect of land to which sections 6 and 8 of the Crown Lands Encroachments Ordinance No. 12 of 1840 (as it originally stood) were applicable, the plaintiff claimed prescriptive title on a chain of deeds from vendors who had no title as the title was in the Crown. The Crown was not a party to the action. The plaintiff's case was that the land was first planted in 1927 and before that it was jungle or chena. Although it was .contended by the plaintiff that from 1927 the plaintiff's predecessors in the .chain of title were in possession till somewhere about 1946 when the defendants wrongfully encroached on the land, the plaintiff failed to establish physical possession and it was found that the story of continuous possession from 1927 was untrue.

The case for the defendants was that there were chains of title which together Covered the land in question and reached down to the 1st defendant prior to 1930. It was not argued that they conferred more than village title. On .an application made in January 1929 to the Government Agent of Kegalle District, after all the formalities and publicity which used to accompany such applications had been complied with, the 1st defendant was granted a Crown Grant dated the 7th August 1930. Plaintiff's predecessors in title did not make .any claim to the land at the investigation which preceded the Crown Grant. It was the defendant's case that for some time before the Grant and from the date of the Grant up to date of the present action she was in possession.

Held, (i) that inasmuch as the plaintiff failed to establish physical possession her case failed whatever might be the position of the defendants. A chain 4)f deeds which do not confer more than village title are, in appropriate cases, 4)f evidentiary value to support evidence of acts of physical possession but without the latter they are useless. "Village title" is a loose term for something which contains no element of actual title.

(ii) that the failure of the plaintiff's predecessors in title to make a claim themselves or to resist the 1st defendant's application for a Crown Grant in 1929 suggested the inference that they were not in possession of the land.

Held further, that the Appellate Court is entitled to interfere with the findings on facts of the trial Judge if they are based not so much on credibility of witr.ess6s as on wrong inferences from documents.

APPEAL from a judgment of the Supreme Court.

Stephen chapman, Q. C., with Ralph Miller, for the plaintiff appellant.

E. F. N. Gratiaen, Q. C., with Walter Jayawardena, for the defendants respondents.

Cur. adv. vult.

February 13, 1961. [Delivered by MR.. L. M. D. DE SILVA]

The appellant instituted this action against the respondents in the District Court of Kegalle for a declaration of title to twenty-eight parcels .of land set out in two Schedules, eighteen in Schedule A (hereafter referred to as Al to A18) and ten in Schedule B (hereafter referred to as Bl to BlO), for an order of ejectment and for damages on the ground that the respondents were in unlawful possession of the said land. The respondents