jaxewakDENE A.J.—Sinniah v. Eliakutty.
1932Present: Jayewardene A.J.
SINNIAH v. ELIAKUTTY.
142—C. R. Kayts, 8,939.
Res judicata—Judgment entered by consent—Estoppel.
A judgment entered by consent creates an effective estoppel by-res judicata.
PPEAL from a judgment of the Commissioner of Requests, Kayts.
H. V. Perera, for defendant, appellants.
. Nadaraja, for plaintiffs, respondents.
May 9, 1932. Jayewardene A.J.—
The plaintiffs claimed a land called Thampalai, in extent lachamvaragu culture and 3 kulies, by virtue of a deed dated November 20,1927, and prescriptive possession. The defence was that the land claimed
> (1S66) L. li. 1 Q. B. 433.a (1882) 1 N. L. R. 129. 18 Emp. Dig. 364 (note)
JAYEWARDENE A.J.—Sinniah v. Elidkutty.
by the plaintiff formed a part of lot 2 in the plan filed in C. R., Kayts,
which was declared in that case to be the exclusive property ofthe present defendants and that the matter was res judicata. In thatcase it was ordered on February 4, 1924, of consent (decree D 2) thatthe whole of lot 2 should go to the defendants. Both parties therepleaded title by prescriptive possession. It is abundantly clear that theportion of land now claimed by the plaintiff is included in lot 2, in C. R.
which was decreed to be the property of the defendants. In factthe plaintiff’s vendor, Kadiravelu, says that that case was sent to theManiagar for settlement, and that he (Kadiravelu) attended the inquiryand produced his deeds before him, and told the Maniagar that hisland was within lot 2.
In 1927 by deed P 1 Kadiravelu sold his rights to the plaintiffs, whoinstituted this action in ,1930.
The decree was entered of consent in C. R. 5,512, but a judgment byconsent is as effective by way of estoppel as a judgment whereby theCourt exercised its mind in a contested case and has the full effect of ares judicata between the parties (In re South American and MexicanCo.1).
Our.law of res judicata, which is founded on the Civil law ….Res judicata dicitur quae finem controversiarum pronuntiationejudicis accepit, quod vel condemnatione vel absolutione contingit… .(Digest XLll. 1,1) is to be found in sections 207, 34 and 406
of the Civil Procedure Code, supplemented by the English law (SamitchyAppu v. Perera2). A decree is decisive as'" to every right of propertywhich can be claimed, set up, or put in issue between the parties upon thecause of action for which the action is brought according to the explanationto section 207 of the Code.
The doctrine of res judicata applies to all matters which existed at thetime of giving the judgment and which the party had an opportunityof bringing before the Court. The conditions for the exclusion ofjurisdiction on the grounds of res judicata are, that the identical mattershall have come in question already, that the matter shall have beencontroverted, and that it should have been decided. If the parties have. had an opportunity of controverting it, that is the same thing as ifthe matter had actually been controverted and decided (Newington v.Levy’). By consenting to judgment for defendants for lot 2, the plaintiffssaid in so many words that they could not succeed on the matters pleadedand put in issue. The question of prescriptive possession of lot 2 was'clearly in issue in C. R. 5,512. An estoppel by res judicata is createdwhere a question is put in issue and withdrawn (Perera v. Perera4).
In Abdul Rahiman v. Ismail and others,5 where the planitiff hadsucceeded in proving prescriptive possession against the two heirs of theoriginal owner in a former action, the first defendant purchased theland pendente lite from those two heirs and another heir who was noparty to the original action. It was held that the. first defendant washimself bound by the first decree, whatever might be the position of the
i (2895) L. R. 1 Ch. 37 (45).—3 L. R. 6 C. P. 180.
1 3 C. A. C. 30.*/l931) 32 N. L. R. 197.
3 4 C. W. R. 1.
third heir in the matter. There had *been an issue as to prescriptionand it was held that the first defendant could not reagitate the sameissue merely by acquiring the interest of another heir.
In my opinion the plaintiffs in this case are in the same position andcannot now be permitted to contest the title of the defendant to theland by prescriptive possession. In the' result their action fails. Iwould set aside the judgment of the learned Commissioner and enterjudgment dismissing the plaintiffs’ action with costs in both Courts.
SINNIAH v. ELIAKUTTY