Sedarahamy v. Abubuclcer
1953Present: Rose C.J. and Pulle J.
SEDARAHAMY ei al., Appellants, and K. ABTJBUCKER el al.,
S. C. 151-152—D. C. Colombo, 3.223ILA
Res judicata—Partition action—Sole defendant—Agreement by plaintiff to pre-paycosta before a given date—Dismissal of action for default—Legal effect of thedism issal.
In a partition action instituted by A. as sole plaintiff against B. as soledefendant, B. claimed the entirety of the corpus without conceding anyshare to A. The action was, however, dismissed because the plaintiff hadcommitted a breach of an agreement to pre-pay certain costa beforo a given<.late. Thereupon A. filed another partition action in respect of the identicalland.
Held, that the dismissal of the first action determined once for all H.’s titleto the entirety of the land as against A. A. was not ontitlod, in the secondaction, to agitate the same quest ion of title as was in issue in tlio previous action.
Held further, that the transfer by B. of the entire land to C. during thependency of the second action was valid.
A. RPEALS from a judgment of the District Court, Colombo.
E. B. W ikramanayake, Q.C., with W. Wimalachatulra, for the ot-lidefendant appellant.
W. Jayeioardene, with D. R. P. Goonetilleke, for the 3rd and 4thdefendants appellants.
M. U. A. Aziz, with M. H. M. Naina Marikar, for the 1st and 2nddefendants respondents.
Cur. adv. vull.
PULLE J.—Scdarahamy ». Abubuclcer
December 13, 1953. Pdllb J.—, jt.
There are two appeals in this case. The appellant in the first appealis the 5th defendant and the appellants in the second are the 3rd and 4thdefendants. The contest giving rise to these appeals relates to theapportionment of a sum of Rs. 9,625 awarded-as compensation in respectof the acquisition by the Crown of a land called Koraborakele describedas Lot 1 in Preliminary Plan No. A. 2,543. The 1st and 2nd defendantsclaimed the entirety of the compensation on the footing of a conveyanceof that lot to them by the 5th defendant dated the 27th February, 1947,and marked ID 1. They alleged that the 5th defendant was the ownerof the entirety of the land. It was common ground that before herconveyance ID 1 the 5th defendant was entitled under a chain of deedsto 7 /8ths of the land. The case for the 1st and 2nd defendants was thatthe 5th defendant had acquired title by prescriptive possession to thebalance l/8th also.
The 5th defendant took up the entirely unconscionable position thatID 1 amounted to only a conveyance of her undivided 7/8ths share,even though it purported to convey the whole, and that it was voidbecause at the date of its execution there was pending a partition suitNo. 4,561 of the District Court of Colombo in respect of the identicalland. The 3rd defendant claimed the balance l/8th on certain deeds.If in fact the 5th defendant was, at the time ID 1 was executed,entitled to no more than 7/8ths it was conceded that the title to theremaining 1 /8th was in the 3rd defendant.
The principal issues tried in the case under appeal were whether the5th defendant had at the date of ID 1 acquired a title by prescriptive•possession to the l/8th in dispute and whether the decree in a previouspartition suit between the 3rd and 5th defendants enured to the benefitof the 1st and 2nd defendants. The learned Judge answered the formerissue against the appellants and the latter in their favour.
The facts material to the question of prescriptive possession are asfollows. One Giran Appu was the original owner of the land which onhis death passed to his widow and eight children. In 1922 the 5th•defendant acquired the interests of the widow and four children amounting"to 12/16ths and in 1929 she acquired the interests of two other childrenamounting to 2/lOths thus making a total of 7/8ths. In 1931 she leaseda 3/4ths share for four years to the 1st defendant according to whomthe balance l/4th was possessed by the 5th defendant.
On 31st December, 1943, the 3rd defendant instituted D. C. ColomboCase No. 3,175/P to partition the land in question. The sole defendantwas the present 5th defendant. The latter claimed in her answer theentirety of the land and asked that the action be dismissed. She specificallypleaded that the 3rd defendant at no time held the land in common withher and that she had acquired a prescriptive title by possession for overtwenty years. The decree is ID 5 according to which the action was•dismissed with costs on the 7th June; 1946, because the plaintiff hadcommitted a breach of an agreement to pre-pay certain costs. The 3rd•defendant promptly filed another partition action No. 4,561. The plaintbears the date 21st June, 1946. As stated earlier the 5th defendant by
PULLE J.—Setlarahamy ». Abubucker
ID 1 dated the 27th February, 1947, transferred all her right, title andinterest in the property to the 1st and 2nd defendants. She filed heranswer ID 6 in case No. 4,561 on the 30th March, 1949, stating in effectthat she was the sole owner and that she had conveyed all her intereststo the 1st and 2nd defendants.
Did the 1st and 2nd defendants obtain on ID l a transfer of titlefrom the 5th defendant to the entirety of the land ? The answer dependson whether between 1929 when the 5th defendant bought the sburesof two of the children of Giran Appu and 1947 the date of ID 1 she hadacquired title by prescriptive possession to the 2/16ths shares belongingto Charles and John, the sons of Giran Appu and on the legal effect ofthe decree in case No. 3,175..*
Assuming that the 5th defendant was in exclusive occupation andenjoyment of the whole land since 1929 it is not possible from this barefact to infer that she had acquired title to the additional 2/16ths. Therewas nothing in the character of the occupation and enjoyment whichwould lead one to presume that there was an ouster of the co-owners ata point of time from which adverse possession could be reckoned. Thewell known cases on the acquisition by prescriptive possession of thetitle of a co-owner are reviewed by Howard C. J. in Sideris et al. v. Simon 1whp says at p. 276,
“ It may be conceded that the possession from 1904 to 1942 was longcontinued, undisturbed and uninterrupted. But this is not enough.What other circumstances existed leading to the presumption that therewas an ouster ? ”. The learned Chief Justice then proceeded to deal withthree deeds executed by one set of co-owners and held that they werenot sufficient “ to initiate a prescriptive title and put an end to thei-o-owners’ possession ”.
In my opinion in so far as the learned Judge found in favour of the 1stand 2nd defendants on the ground that the 5tli defendant had by heracts of possession acquired a prescriptive title it cannot be supported.We then have to consider the question whether the dismissal of actionNo. 3,175 so operated as to give the 5th defendant title to the share whichshe disputed with the 3rd defendant in that case. Of the cases citedat the resumed hearing on the 9th October, 1953, Saramappuhamy v.Mnrtinahumi et al. 2 is of considerable assistance. It was there decidedthat where a partition suit was dismissed on the ground that the defendanth.ul acquired title by prescription, then in a subsequent action broughtby the defendant to vindicate title to the land the judgment in thepartition suit operated as res judicata and prevented the parties fromagain raising the question of title. In the partition suit which was underconsideration in Saramappuhamy v. Martinahami et. al. 2 the defendantset up a claim that he was entitled to the entirety of the land sought to bepartitioned and after an investigation of title the defendant succeededand the action was dismissed. In case No. 3,175/P the 5th defendant inthe present case was the sole defendant and the 3rd defendant was thesole plaintiff. The issue between them was plain and straightforward,whether the 3rd defendant was entitled to any share at all having regard
' (1946) 46 N. L. It. 273.
(1910) 12 N. L. It. 102.
HJLLE J.—Sedarahamy e. Abubucker
to the claim set up by the 5th defendant that die was entitled to the wholeland. Does it make any difference that the 3rd defendant agreed tohave the action dismissed in the event of costs being not paid before agiven date ? In my opinion the answer must be in the negative. Thedismissal of that action determined once for all the 5th defendant’s titleto the entirety of the land as against the 3rd defendant and thereafter,unfettered by any legal proceedings by the 3rd defendant to agitate thesame question of title inter partes as was in issue in case No. 3,175/P,the 5th defendant was in a position to convey a.good title to the entiretyof the land to the 1st and 2nd defendants. I have considered the decisionsin Sanchi Appu v. Jeeris Appu 1 and Abeysundera v. Babuna et al. 2which were cited to support the argument for the appellants that thedismissal of case No. 3,175/P was not a bar to the institution of case No.4,561/P. In the former case a decree dismissing a partition action waspleaded as res judicata in a subsequent action rei vindicatio. Ennis J.was of the opinion that the plea failed because there was no adjudicationof title on the merits in the dispute between the plaintiff and the 37thdefendant in the partition case. He said,
“ The plaintiff, who sought to partition, failed because he could notestablish his own title and the Judge further remarked that his properaction would have been a rei vindicatio action, in view of the fact that hewas aware that the thirty-seventh and fortieth defendants were contestinghis title. So far as we are aware in this case, there is nothing to showthat the thirty-seventh defendant in the partition action adduced anyevidence at all in support of his title. It is impossible, therefore, to saythat the decision in that partition action was relative between the plaintiffand the thirty-seventh defendant. ”
In the present case after the two parties had filed their pleadings andafter the trial had been fixed the 3rd defendant expressly invited theCourt upon a named contingency to adjudicate on his claim withoutevidence. I do not think he can now be heard to say that there was noinvestigation of the dispute between him and the 5th defendant.
The case of Abeysundera v. Babuna et al. 8 does not help the appellants.In that case the earlier partition action had been dismissed before the dayfixed for trial and even before some of the defendants had been servedwith notice of the action. The resulting poeition was that one couldnot say what the points of contest were between the parties.
As stated earlier, in the present case one knows exactly the nature ofthe dispute between the 3rd and 5th defendants in case No. 3,175. Thepleadings do not speak with an uncertain voice as to the legal conse-quences flowing from an adjudication dismissing that action, namely,that as against the 3rd defendant the 5th defendant had vindicatedtitle to the entirety of the land.
I would dismiss the two appeals with costs. The 1st and 2nddefendants will be entitled to only one set of costs of appeal.
Rose C.J.—I agree.
(1920) 22 N. L. R. 176.
■ * (1925) 26 N. L. R. 459.
H. SEDARAHAMY et al . Appellant, and K. ABUBUCKER et al , Respondent
Sedarahamy v. Abubuclcer