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Present: Schneider and Garvin JJ.
BANDA v. NACCIRE et al.
304—D. C. Kurunegala, 8,686.
Res adjudicata—Civil Procedure Code, s. 207—-Action lor declaration oftitle and damages till restoration to possession—0} consent decreefor plaintiff, but toithout damages—Lease by plaintiff after decree—Plaintiff restored to possession about ten months after decree—‘ Action by lessee for damages for unlawful possession.
In action No. 7,671, N sued defendants for declaration of titleto a land, and also for damages till she was restored to possession.Qf consent decree was entered on June 28, 1920, declaring herentitled to life interest. It was also decreed that there shouldbe no damages. On October 29, 1920, N executed a lease of the landfor four years from that date. On July 25, 1921, N obtainedpossession through the Fiscal. The lessee sued the defendants for damages,alleging that they were in unlawful possession of the land from thedate of lease till July '25, 1921.
Held, that the lessee was barred by the decree in No. 7,671 fromclaiming damages in the present action.
P LA1NTEFF, averring that he had taken a lease No. 963 datedNovember 29, 1920, from one Iso Naccire, who had beendeclared entitled to the possession of a half share of the landsdescribed in the schedule to the plaint by a decree entered in D. C.,Kurunegala, case No. 7,671, 'sued defendants for the recovery ofRs. 360, which he alleged were the damages sustained by him for hisdispossession of the said premises since the. date of the lease forabout ten months.
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1SB& Defendants denied the alleged dispossession, and pleaded that the.
v notion No. 7,671 by the said Iso Naccire, in which she claimedJfaccire damages up to the date of cession of possession, was settled and adecree of consent entered, giving her a life interest in half the premisesclaimed, and that in consequence of such compromise plaintiff wasprecluded from claiming the damages, if any, for the period up to .thecession of possession.
The parties proceeded .to trial on the following issues : —
Is plaintiff precluded from maintaining this action by reason
of the decree in 7,671 of this Court ?
If not, has defendant wrongfully taken possession of the half
share belonging to the plaintiff ?
The District Judge (W. L. Murphy, Esq.)) by his judgmentdecided all issues in plaintiff's favour, and gave judgment forplaintiff os prayed for, with damages, for ten months as claimed.
The defendants appealed.
Groos-Da Brera, for defendants, appellants.—The plaintiff’s lessorinstituted an action ret vindicatio regarding the land leased andclaimed mesne profits. The action was settled, and the defendantswere declared the owners, subject to the life interest of the lessor.No order was made as regards mesne profits. The lessor claimedfuture mesne profits, and sections 196 and 207 of the Civil Pro-cedure Code prevent him from claiming them again. The orderin the previous case operates as res judicata. The plaintiff cannotbe in a better position than his lessor. Counsel cited 1Kiri Bandav. Slema Lebbe.1
Soertsz (with him Weeraainghe), for plaintiff, respondent.—The caseof Kin Banda v. Slema Lebbe (supra) was decided on evidence. Inthis case the judgment is based on a settlement. It was understoodthat no damages or mesne profits should be claimed. The plaintiffclaimed possession of the land as lessee. Defendants should accounttor the mesne profits after they refused to give possession. It wasunderstood that the defendants should give possession soon afterjudgment. They delayed to give possession. They should not beallowed to benefit by their default.
January 31, 1923. Schneider J.—
One Iso Naccire sued the defendants in this action for a decla-ration of title to the land which is in claim in this action, and alsofor damages sustained up to date of action, and further damagestill she was restored to the possession of the land. Her claim was
1 11908) 11 N. L. R. 348.
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resisted, and of consent decree was entered declaring her entitledto a life interest over a certain share of the land. It was alsodecreed that there should be no costs and no damages. This wason June 28, 1820. On October 29t 1020, she executed a lease forfour years from the date of the lease in favour of the plaintiffgranting him possession of the share which she was decreed entitledto. On July 25, 1921, she appears to have applied for a writ, andobtained possession through the Fiscal on that date. In this actionthe plaintiff sued to recover damages from .the defendants upon theallegation that the defendants were in the forcible and unlawful posses-sion of the land which had been leased to him. In' then*answer the defendants pleaded the decree in action No. 7,671 asres adjudicate, in bar of the plaintiff's claim. The learned DistrictJudge held against the defendants' contention in regard to thisquestion of res adjudicata. He held in favour of the plaintiff uponthe facts, and gave Judgment in favour of the plaintiff as prayed for,with damages. The defendants have appealed. The only pointfor our decision is whether the action No. 7,671 is res adjudicata.In support of the contention of the defendants, Mr. Croos-Da Breracited to us the case of Kiri Banda v. Selema Lebbe (supra), in whichthis Court pointed out the effect of section 207 of file Civil Pro-cedure Code as operative to bar the maintenance of an action, incircumstances identically the same as in this case. I would followthat decision, and hold that the provisions of section 207 of theCivil Procedure Code would have operated to bar an action if ithad been brought by Iso Naccire. The plaiiitiff, who is her lessee,is in no better position than herself. His. claim to possession is thatderived from Iso Naccire. That being so, I would dismiss theplaintiff's action, with costs. The defendants are entitled to thecosts of this appeal.
Garvin J.—I agree.
BANDA v. NACCIRE et al