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Present: Lascelles C.J. and De Sampayo A.J.
APPUHAMY v. PUNCHIHAMY.
447—D. C. Negombo, 8,678.
Bes Judicata—Findings on two issues, either of which would justify thedecree—Which finding would operate as res judicata in a subsequent,action t
Plaintiff brought a partition action (No. 5,137) claiming anundivided share of a land as son of one Sepasin. This action wasdismissed on the ground that plaintiff was not the son of Sepasin,and the Judge also held that the land sought to be partitioned washeld dividedly. Plaintiff subsequently brought this action topartition another land claiming to be a *on of Sepasin.
Held, that the issue as to whether the plaintiff was a son ofSepasin was res judicata by the decision of the former action.
Where there are two findings of fact, either of which wouldjustify in law 'the decree which was made, the finding which inlogical sequence of necessary issues have been first found, ud thefinding of which would have rendered the other of the two findingsunnecessary for the making of the decree, is the finding which canoperate as res judicata.
“In the present case the first step was for the plaintiff to provehis title from the original owner of the land, and any question withregard to the division of the land would only arise after the plaintiffhad established his descent freon the original owner.*'
Db Sahpato A.J.—“ It is well settled that the jssue for thepurposes of res judicata must be a substantial and not a mereincidental issue.**
TP HIS is a partition action in which the plaintiff claimed anundivided half share of the land in question from his mother,who he alleged was the first wife of one Sepasin, the original ownerof the land, and also a 1/32 share by inheritance from Sepasinhimself.
The defendants denied that the plaintiff was the son and heir ofSepasin, and contended that the point was res judicata by the decreeaud judgment in case No. 5,137 of the District Court of Negombo.
The learned* District Judge held that the claim of the plaintiffas the legitimate son of. Sepasin was res judicata by the decree inthe former action. From this judgment the plaintiff appealed.
Action No. 5,187 was instituted as long as July 11, 1903. It-was a partition action, in which the plaintiff claimed certain undividedshares in a different land on the footing that he was a son of Sepasin.Evidence was heard, and the District Judge found that the plaintiffwffs not a legitimate son of Sepasin, and dismissed his action.
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The judgment in D. C. Negombo, 5,187, was as follows:—
The land inquestion,Ambagahawatta,belongedto Kaluhamy,
Appuhamy,and Babahamy.Ontheirdeath itdevolved on their three
children, Daniel (first defendant),, Siriwedi Etana (seventeenth defend-ant),andSepasin. Plaintiffclaims ashareasthe son of Separin by
his first marriage, and asks for a. partition.
Heproduces no certificate ofhisbirthorof his parents' marriage,
and,onthe other hand,thecontestingdefendants produce copy of
certificate of Sepasin*s second marriage, in which be declares himself-as* not married. This certificate is not conclusive, for in the villager'smind marriageand registration are always confusedtogether,but itis
of considerableweight, and to disregard it I shouldhave tofind strong
evidence on the other side.
The strongestevidence in favour of plaintiff isthat of Punchi-
hamy, twentiethdefendant,who admits under cross-examination that
when she married Sepasin there was a child living with him and hismother in thehouse, and' she does not deny itwas theplaintiff.1
entirely believethat plaintiff was brought up by Sepasin, andthat heis
his child. ButI find the evidence not sufficient topresume,in faceof
the marriage certificate, that Sepasin’s first connexion was a marriage,and that plaintiff is a legitimate son.
Again, I thinkthere isanother objectionto thedesired partition.
It seems to me that the land is already possessed divide^Lly, beingseparated into three partsby long existingfences.Oh this ground
also I think plaintiff fails in his claim for partition.
The action must be dismissed with costs.
A. St. V. Jayewardene, for the plaintiff, appellant.—The plaintiffwas not in a position to appeal against the finding of the Judge in
G. Negombo, 5,137, as the finding on the question of possessionwas strong, and there was no chance of getting it set aside. Thefinding on the question of legitimacy was incidental. The decisionon the question of paternity was not essential for the decision of thatcase. [De Sampayo A.J.—The question of possession was inci-dental, but the decision mainly rested on the question of paternity.]Counsel cited Run Bahadur Singh v. Lucho Koer,1 Shib Charan TaiIv. Ragku Nath,2 Caspersz 59, 61.
In the first case (5,187) the first issue was the question of commonownership, as the action was a partition action. [De SampayoA.J.—The main question in a partition action is a question of title.]The question of title would only arise after the question of un-divided possession is decided.
M. de Saram. for the defendant, respondent, not calledupon.
Cut. adv. vult.
i [1884) I.L.R. 11 Cal 301,308.
* 17 aU 174.
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February 13, 1914. Lasobllbs C.J.—
His Lordship stated the facts, and continued:—*Appuhamy
For the appellant it is contended that the finding that the Punctehumyplaintiff was not the lawful heir of Sepasin was not the real baas ofthe judgment, that it was not a material and necessary finding offact in the sense that the judgment was a necessary result of .thefinding. It was argued that the judgment proceeded on anotherground, namely, a finding that the land was already possesseddividedly, having been separated into two parts by long existingfences.
A perusal of the judgment shows beyond all doubt that whatthe Judge really proceeded on was his finding with regard to theillegitimacy of the plaintiff and that the previous division of theland was merely referred to incidentally as another circumstancewhich would be fatal to the plaintiff's claim.
We have been referred to the judgment in Shib Charon Lai v.
Raghu Noth,1 which deals with the question where there are twofindings of fact, either of which would justify, in law the decreewhich was made. There it was held that the finding which should,in the logical sequence' of necessary issues, have been first found,and the finding of which would have rendered the other of the tvofindings unnecessary for the making of the decree, is the findingWhich can operate as res judicata.
The example given in the judgment in that case shows howstrongly this authority hells against the appellant’s contention.
In the case there given, A, alleging himself to be the legal represen-tative of B, sues C for breach of contract between B and C.. Cpleads that A is not the legal representative of B, and that he (C)was a minor at the date of the contract. The Court finds that A nis not the legal representative of B, and that C at the date of thecontract was a minor. Of these two findings, it was held that Hiefinding which would operate as res judicata between the parties wasthe finding that A was not the legal representative of B, becauseuntil A bad established his title to sue on Hie contract- as the legalrepresentative of B, the defendant C could not be put' to proof ofhis minority at the date of the contract.
Similarly, in the present case No. 8,678, the first step was for theplaintiff to prove his title from the original owner of the land, andany question with regard to the division of the land would only ariseafter the plaintiff had established his descent from the original owner.
I would also note that the second finding in that action (No. 5,137)is not in point of fact conclusive of the case. There were 29 defend-ants in the cade, and it does not follow from the fact that the landhad already been divided into three parts, and so held that theplaintiff was not entitled to a partition if he had proved his title.
*17 AU. 174.
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***** In my opinion the question of the legitimacy of the plaintiff isTjAUfligr.T.TMi clearly res judicata by reason of the judgment in the former action.
I would dismiss the appeal with costs.
t». De Sampayo A.J.-r*
I entirely agree, but I wish to add a word with reference to oneof the authorities cited on behalf of the plaintiff-appellant. Thejudgment of the Privy Council in Run Bahadur Singh v. Lucho Koer 1was relief on as supporting the proposition that where a judgmentis given against a party on several issues, and where the party,feeling the strength of the decision on one of the issues which isdecisive, abstains from appealing altogether, the judgment is notres judicata in regard to any of the other issues, though they maybe equally decisive. In my opinion the Privy Council did notenunciate any such view. In that case the issue was as to whethertwo brothers were “ joint ” or “ separate 7 in estate. The Courtwhich gave judgment oh that issue in the first suit, which was a rentsuit, would have had no jurisdiction to adjudicate on the subject?matter of the later suit, which involved the question of title to theentire estate. The Privy Council, in the first place, decided that ajudgment in order to be res judicata must be that of a Court ofcompetent jurisdiction, and so dissented from the view of' theCalcutta High Court that the judgment in the first suit was re*.''judicata in the second suit, but in the second place held that theparty in whose favour the High Court had given judgment on theground of res judicata could support the judgment on the evidencerelating to the question wifhoutThy .cross-appeal. It .will be seenthat that decision is no authority for the appellants. It is wellsettled, however, that the issue, for the purposes of res judicata, mustbe a substantial and not a mere incidental issue. In the presentcase it is quite clear that the principal and substantial issue in thefirst action was as to whether the plaintiff was a legitimate child ofSepasin. The matter of the already existing division of the landwas a subordinate ground for refusing the partition applied for, andif the Court had decided the main question as to legitimacy in favourof the plaintiff, there would have been nothing to prevent the Courtfrom confining the action to the separate portion possessed bySepasin and proceeding with the partition on that footing. Inthese circumstances, even if the contention for the plaintiff weresound in law, there does not appear to me any foundation of fact" for the argument that the plaintiff was prevented from appealingin the first action by reason of the finding on the matter of theexisting division of the land,* and that he is therefore not now boundby the judgment in that case even in respect of the question oflegitimacy.
1/. L. R. 11 Cal. 301.
APPUHAMY v. PUNCHIHAMY