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tried, and decided. For example, suppose a man has title to apiece of land from two sources, A and B. He brings an action ontitle A and is defeated; he cannot afterwards sue his defendant ontitle B. Or, if he is sued in ejectment, and sets up title B only, andis beaten, he cannot thereafter assert title A against his adversary.This is the effect, as I read it, of the explanation to section 207,
which says that ‘ every right of propertywhich can be
claimed, set up, or put in issue between the parties to an action uponthe cause of action for which the action is brought, whether it beactually so claimed, set up, or put in issue or not in the action,becomes on the passing of the final decree in the action a res adjudi-cata, which cannot afterwards be made the subject of action forthe same cause between the same parties/1 Consequently such adecision as that in District Court, Kandy, No. 90,099, would not nowbe possible, where the plaintiff claimed the incumbency of a BuddhistVihare on a deed executed by one Batanapala Unnanse, theadmitted former incumbent (1). Being defeated, plaintiffs suedagain, claiming .the incumbency as the sole surviving pupil ofBatanapala’s tutor and predecessor, Mahalla Sobhita (2). It washeld that the judgment in the former action was no bar to the newclaim. (The decision is not reported.)
Plaintiff concedes that he has acquired no new right to the landsince case No. 7,013 was decided, but I understand him to say thatat- that date he had a prescriptive title, which was never tried ordecided against him. That clearly is a “ right of property, M whichwould have been a good defence, which therefore ought to have beenset up, and which is now conclusively negatived by the decree in theappellant V favour.
The case No. 5,905, upon which the District Judge relies, aroseunder the following circumstances. One Cassim Lebbe claimedcertain land by virtue of an execution sale in 1872 against theadmitted original owner Dona Ana. His adversaries claimed undera deed of donation from Dona Ana dated 1871. Cassim Lebbe firstsued them in action No. 1,245, and they pleaded their earlier title,and, alleging a continuous possession thereunder, denied having* ousted plaintiff. At the trial plaintiff sought to attack the donationas a fraud on creditors, but the'Court refused to settle that issue,
* and the only issues tried were: (i.) Did Dona Ana execute thedonation deed? (ii.) Did defendants oust plaintiff? The firstwas found in the affirmative and the second in the negative, andthereupon ’the action was dismissed. Subsequently one Jansz, *a creditor of one of the successful defendants, seized the land inexecution against her, and Cassim Lebbe's claim havings been dis-allowed, he sued Jansz under sectioja 247 of the Code (action No.5,905) tp have his title declared. Jansz pleaded the decree No. 1,245
(1) (1881) 4 5. G. C. 191.■(2) W.cndt 25.
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in bar, and the District Court upheld the plea and dismissed theac&on. Cassim Lebbe appealed, and this Court on 11th February,1903, reversed the dismissal. Layard C.J., with whom Moncreiff *J.concurred, said: “ A reference to the judgment in District Court,Galle, No. 1,245, shows that the case was dismissed on the groundthat the plaintiff had failed to prove his cause of action, namely,that he had been ousted from the premises by the defendant in thataction. The judgment did not decide the question of title as betweenthe plaintiff and the defendant in that case, and consequentlycannot be pleaded as res judicata by the defendant in this case, forit did not decide, nor purport to decide, the question of title. ”With unfeigned respect for the learned Judges who decided that case,
I must say that I cannot subscribe to their decision. It wouldappear that the question of title was in issue in the older action; atany rate, the claim for the declaration of plaintiff’s title could failonly on the assumption that parties were agreed that plaintiff hadtitle, and that defendant only denied having interfered with it,which interference plaintiff had failed to prove. If the title wasdenied, and defendants set up their own title, it would have beenincumbent on the Court to try and determine the question of title,notwithstanding that defendants had not ousted plaintiff, especiallyif, while denying such ouster, the defendants admitted that theywere in adverse possession,'and had been from a.date anterior evento plaintiff’s acquisition or title. This probably was what defendantsin action No. 1,245 did allege. Possibly the decision in case No. 5,905may be supported on the law of res judicata as it stood prior to theenactment of the Code of Civil Procedure. Certainly the judgmentmakes no mention of section 207, and Jihere is nothing to showthat the Court’s attention was drawn to it. But since the Code,the plaintiff’s title was a “ right of property, ” and also a “ rightof relief,” which could have been claimed or set up in his claim forpossession of the land upon the cause of action, for which actionNo. 1,245 was brought, and the final judgment dismissing that actionrendered that title a res adjudicata against the plaintiff which hecould’ not agitate afresh.
The case No. 5,905 differs from the present action in the circum-stances that the decree relied upon as. an estoppel was there a decreefor the defendants, while here it was a decree for the plaintiff.Whatever may be said in favour of a plaintiff with two titles to landbeing allowed first to assert the one and then the other, it cannot-reasonably be contended that a defendant when sued iq ejectmentmay first set up one of. several defences he possesses, and afterwards,when sued again, set up another of them; or, what comes to thesame thirfg, himself immediately attack his successful adversary ina new action, setting up the matter of that second defence as aground of claim. That is what the present plaintiff seeks tovdo, andin my opinion he cannot be permitted to do it.
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Plaintiff’s counsel alleged that the several judgments obtainedagainst his client were founded far back on a fraudulent partitiondecree of many years ago, and that each judgment against himmerely relied on its predecessor, and that his claim, to the land hadnever been tried on evidence. That fraudulent decree, however,holds good until it is reduced in a properly constituted proceeding,and plaintiff, cannot attack it incidentally in an action like thepresent. But, assuming he could, how about the subsequentdecrees, which although based on the partition decree, were passedin plaintiff’s presence and after he had been fully heard? Theywill not fall with the cutting away of their foundation, but will ineach instance afford ground for an estoppel. Similar fraud is notalleged against them.
For the reasons I have given I think the appeal should be allowed,the plea of res judicata upheld, and plaintiff’s action dismissed withcosts in both Courts.
Appeal allowed.

March. 13.Wendt J.