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Present: Bertram C.J.BANDA et al. v. APPUHAMY et al.113—C. R. Kurunegala, 2,955.Court of Requests—Misjoinder of causes of action—Action by usufructuarymortgage for damages in respect of ttoa contiguous lots—Actionagainst three trespassers as to one lot, and against two only as to theother lot—Civil Procedure Code, «. 806.
Plaintiffs who are usufructuary mortgagees brought an actionin the Court of Bequests in respect of two contiguous lots of landover which they claimed a' charge under their mortgage. Inrespect of the first' lot the action was brought against all threedefendants, and in respect of the other lot against the first twodefendants only.
Held, that there was a misjoinder of causes of. action.
In the Court of Bequests, where in the same plaint two or morecauses of action are joined, it must appear on the' face of the plaintthat all the causes of action so united are consistent with eachother, that they entitle the plaintiff, to the same kind of relief, andthat they affect alt the parties.
HE plaint in this case was as follows: —
For a First Cause of Action.
The parties to this action are residents within the jurisdiction ofthis Court.
The plaintiffs were the mortgagees of the lands described in theSchedule hereto annexed, by right of mongage bond No. 44,328 ofNovember 23, 1920, herewith filed, with its translation marked JP 1.
The defendants above named, who have no manner of right ottitle whatever to land No. 1 in the schedule hereof, unlawfully pre-vented and are preventing the plaintiffs, from possessing or taking theproduce of their shares of the said land, from date of the execution otthe said mortgage bond, to their loss and damage of Bn. 56.
For a Second Cause of Action.
The plaintiffs were the mortgagees of the lands as described inparagraph 1 hereof.
Thefirst andseconddefendants above named, who haveno
manner of right or title whatever to land No. 2 in the schedule hereof,unlawfullypreventedand arepreventingthe plaintiffs from possessing
or taking the produce of their shares of the said land from date of theexecution of the said mortgage bond, to their loss and damage of Bs. 15.
Thedefendantsabove named have failed and neglected topay
the plaintiffs the said damages, in both causes of action or any portion,thereof, though thereunto often requested.
Wherefore, the plaintiffs pray—v
(1) For a decree for Bs. 71 against first and second defendant;(2)
fora decreefor Bs.56 againsthe third defendant; (3)for
costs of suit; (4) for such further and other relief as to this Courtshall seem meet.
B. Sabapathy,Proctor for Plaintiffs.
J. Joseph (with him Rajakarief), for appellant.
Croo8-Dabrera, for respondent.
August 22, 1922. Bertram C.J.—
This is an appeal agaiusb a judgment of the Commissioner o*Requests of the Kurunegala Court of Requests dismissing theplaintiff’s action on the ground of misjoinder of parties and causesof action. The action is brought by the plaintiffs who are usu-fructuary mortgagees. Tt- is brought in respect of two contiguouslots of land over which they claim a charge under their mortgageIt is brought in respect of the first lot against all three'defendants,and in respect of the other lot against the first two defendants only.
All the defendants combine together, engage the same proctor,and put in a common answer. Their case is that the plaintiffs,.had obtained this mortgage in fraud of their rights under certaininformal engagements with plaintiffs’ mortgagor. It would certainlybe a singular thing if two claims of this sort could not be triedtogether in a single action. But, for one circumstance, l shouldhave upheld the contention of the plaintiffs without qualification.What the plaintiffs are doing in effect is this: They bring an actionon one cause of action against first three defendants with regard tothe first lot of land, and they combine with this claim a claim onanother cause of action, viz., a claim against two of the defendantsonly. In other words they are combining two sections of the CivilProcedure Code, namely, sections 14 and 36, and. this, by the
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judgment oi Pereira J. in the case of The London and LancashireFire Insurance Co. v. The Peninsula and Oriental Co.,1 they havebeen expressly held entitled to do.
There is, however, one circumstance to which I have alludedabove, which is fatal to the plaintiffs’ claim in its entirety. That is,that this action is in a Court of Bequests, and is accordinglysgovemedby section 805 of the Civil Procedure Code. That section enactsthat where in the same plaint two or more causes of action are joined,it must appear on the face of the plaint that all the causes of actionso united are consistent with each other, that, they entitled theplaintiff to the same kind of relief, and that they affect all the parties.It is clear, therefore, that the plaintiffs are not entitled to proceedin respect of the first lot against the three defendants, and in respectof the other lot against- the first two defendants only.
Mr. Croos-Dabrera, who appears for the respondent, takes a furtherpoint. Basing himself on the case of Babot v. O’ Silva,* he claimshis right to uphold the judgment on any other ground withoutgiving notice to the other side. The ground he takes is that thevalue of the land in respect of which action is brought exceeds Rs. 300in value. I do not think that this is a good objection. The claimis a claim for damages on the ground that the plaintiffs have beendeprived of their security. The damages they claim are only Rs. 71.Mr. Croos-Dabrera relies mainly upon two decisions of this Courtreported in 18 N. L. R. 84, a judgment of Mr. Justice Pereira, andin 20,-N. L. R. 343, a judgment of Mr. Justice de Sampayo. Boththese cases were possessory actions, and in the first of themMr. Justice Pereira insisted on the circumstance that what wasclaimed was the right to the perpetual possession of the land.
This is not a possessory action, and I do not think that thoseauthorities apply. The claim is a claim for damages. To this Mr.Croos-Dabrera replies by citing Dingiri Appuhamy v. Appuhamy *There it was held by my brother De Sampayo that although in thatcase the claim was a claim for damages, in respect of the removal,of crops, the actual title to the land in question was in dispute.Here, however, the title to the land is not in dispute. All that is indispute is a certain-interest in the land, namely, a right to hold theland and to take the produce in lieu of interest.
What we have to interpret in section 77 of the Courts Ordinance.No. 1 of 1889, which confers jurisdiction on Courts of Requestsin' all actions in which the title to, interest in, or right to possessionof any land shall be in dispute, provided that the value of the landor the particular share, right, or interest in dispute shall not exceedBe. 300. (I have omitted certain words which appear intended todeal with partition suits only.) These words: (1) 44 title to interestin or right to possession of ” and (2) 44 the value of the land or the
1 (1914) IS N. L. B. 22.1 (1905) 8 N. L. B. 22.
* $ C. A. C. 87.
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1028.particularshare,right, or interest in dispute ” are clearly to be
interpreted reddendo singula singulis. As the interest in disputeCJ.js not thewholetitle to the land, and as thevalue of that interest
Banda v.is less than Rs. 300, I think the case is withinthe jurisdiction of the
Appuhamy Court of Bequests.
The question now arises, what should be done in view of the defectin plaintiffs' claim to which 1 have above alluded. The learnedCommissioner has dismissed the action. Herein, I think, he iswrong. Ithinkthe learned Commissioner'sjudgment should he
set aside, and the case sent back for retrial, and that thereupon theplaintiffs should be given the option of waiving their claim againstthe third defendant, or of severing their claims in respect of the twolots of land, and abandoning one of their claims, reserving theright to bring a fresh separate action in respect of the claim soabandoned.
The appeal is allowed, with costs.
BANDA et al. v. APPUHAMY et al