046-NLR-NLR-V-56-K.-K.-SILINDUHAMY-et-al-Appellants-and-P.-WEERAPERUMA-Respondent.pdf
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Silinduhamy v. Weeraperuma
Present: Sanson! J. and Fernando A.J.K. K. SILINDUHAMY el al., Appellants, andP. WEERAPERUMA, Respondent
S. G. 181—D. C. Galle, 4,395
Rea judicata—Several -previous but conflicting decisions—Principles applicable then —
Partition action.
In. an action for the part ition of what was described by the plaintiff as a landconsisting of two portions (A and B) the contesting defendants took up theposition that the two portions were distinct and separate lands in one of whichthe plaintiff hod no share and, therefore, that the two lands could not be joinedin one action for partition.’
There had been three earlier' actions—Cases Nos. 1, 2 and 3—in regard totho same point in dispute. In Case No. 1 it was held that portions A and Bconstituted one land. On this question it was decided in Case No. 2 that theprevious decree in Case No. 1 was res judicata. The question aroso again inCase No. 3 where tho defendants pleaded the decree in Case No. I as res,judicata, but thodocrco in Cane No. 2 was not pleaded an res judicata. It was
SAN SO NT J.—Silinduharny v. Weeraperuma
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however, deoided in Case No. 3 that A and B were two separate adjoininglands. In Case No. 3 the predecessors in title of the ^plaintiff and contestingdefendants of the present action were parties.
Held, that, for the purpose of deciding the present action, the decisions inCases Nos. 1 and 2 were superseded by the decision in the later Case No. 3which was res judicata as between the plaintiff and the contesting defendants.Two principles governed the matter, viz., (1) A judgment of a Court of competentjurisdiction directly upon the point in dispute is a bar between the same partiesfir those claiming through them if pleaded ; but if not so pleaded, the matteris left at large. (2) Where there are conflicting judgments inter partes, the lateradjudication should be taken as superseding the earlier.
^LpPEAL from a judgment of the District Count, Galle.
H. W. Jayewardene, Q.O., with D. R. P. Ooonetilleke, for the 4th, 11thand 19th defendants appellants.
Cyril E. S. Perera, Q.C., with A. W. IF. Qunawardene, for the plaintiffrespondent.
Cur. adv. vult.
September 24, 1964. Sansoni J.—
The plaintiff-respondent brought this action for the partition of a“ land called Rukmalgahaowita and Kumbura adjoining each othersituated at A1 uttanayamgoda in Mapalagama in the Gangaboda Pattuof the District of Galle, Southern Province, and bounded on the North byDiganegoda Potuwila, East by Modera Pelessa, South by Kamarange-owita and West by Walagawawatta containing in extent about five acreB(5A.0E.0P.) ”. He traced title to the land from two persons, LiyanageNonnehamy and Liyanage Seuhamy who were alleged to have ownedthe land in the proportion of 7/8 and 1/8. Nonnehamy married KetipoKankanange Adirian in community of property and the latter died leavinghiB widow who then got 7/16 share and the four children Udaris, Andiris,Nonahamy and Babahamy who each got 7/64 share. The widow Nonne-hamy by deed PI of 12th September, 1901, sold her 7/16 share to Singho-appu, and the plaintiff by purchase on deed P3 of 1942 claims that share.The 19th defendant has purchased certain interests out of Udaris’ sharein the southern portion of the land. Andiris married Gimara and theyhad two children the 4th and 20th defendants who sold their share to thelith defendant. With regard to Seuhamy’s l/8th share, on her deathit passed to her four children Sancho, Aranolis, Endiris and Dingihamy.Sancho’s share was bought at a sale in execution against her by Karuna-ratne and Abeyhamy on Fiscal’s Conveyance P8 of 1906, and thatshare lias devolved on the plaintiff. Endiris’ share in the southernportion was bought by Gimara on deed 11D2 of 1911, and on Gimara’sdeath it passed to her children the 4th and 20th defendants who soldit to the 11th defendant. I have referred to the devolution of onlysome of the shares in order to set out how the disputes in this appealarise.
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184
SANSONI J.—SHinduhamtf v. Weeraperunui
The plaintiff’s case was that the entire land comprising of the 11 lots Ato K, as depicted in the plan Z was the land to be partitioned. Hepleaded that the judgments and decree in C. R. Galle Cases Nos. 749 and9212 were res judicatae and binding oh the defendants. The 4th, llt-hand 19th defendants, whom I shall refer to as the contesting defendants,filed a joint answer. They took up the position that the 4 lots A, B, C.and D form a paraveni land called Rukmalgaha Owitagoda Owita ofwhich Liyanage Nonnehamy owned 7/8 share while the remaining 7lots E to K form a distinct and separate divel land called RukmalgahaOwita and Kumbura which formerly belonged to Liyanage Adirian.These defendants further pleaded the judgment and decree in C. R.Gallo Case No. 4923 as res judicata. It was the case of the contestingdefendants that the land shown in plan Z comprised two separate lands,viz., a divel land (lots E to K) lying north of the ridge which runs fromWest to East, part of it paddy field and part owita, and a distinct paraveniland (lots A to D) lying south of the ridge. An examination of theearlier deeds produced establishes this position beyond any doubt. In1879 Liyanage Adirian, who the contesting defendants say was theformer owner of the divel land, leased the owita portion of it to We era-'singhe de Silva by deed 11D6 for four years. The land leased is describedas Rukmalgaha owita of 3 pelas. In a subsequent deed of lease 11D7 of1890 between the same parties the leased premises are described as Ruk-malgaha divel owita. But the divel land also contained a field portion(lots 1, J and K in plan Z), in extent 3 pelas and in 1899 Liyanage Adiriantold the entire divel land by deed 11D4 to Ketipe Kanakanange Andirisde Silva, describing it as Rukmalgaha Kumbura and Owita of 6 pelas.The boundaries mentioned in that deed are important and they arc : —
North—Digane Godage Pothuwila,
East—Diyaambe Owita and Watte,
South—Rukmalgahaowita Paraveniioatte,
West—Walagawa wagura.
The earlier document in respect of the southern or paraveni portion(lots A to D) is a Fiscal’s transfer 11D9 of 1886 issued after a sale inexecution held in 1880 against Nonahamy’p son Udaris. The followingdescription of the land appears in it—Rukmalgahaowita bounded asfollows :—,.
North—Rubmalgahaoivita Divel owita,
East—Moderapelessa Owita Divel Watta,
South—Kaberankka owita and Batelewatte.
West—Nugagahawite Medewatte and Walagavawatta.
There is no reason why these old documents should be disregarded whenone has to examine the question whether there was one land, as theplaintiff says, or two lands as the contesting defendants say. What ismore, since 1879 Liyanage Adiriari who is the predecessor in title of thecontesting 4th and 11th defendants was dealing with the divel portion
SANSON! J.—Silindtihamy v. Weeraperutna
185
to the north of the ridge on the footing that it belonged solely to himHe sold the entirety to K. K. Andiris in 1899, the latter being the son ofNonnehamy and K. K. Adirian ; on the death of Andiris and his wifeGimara this land is said to have devolved on their sons the 4th and 20thdefendants, and the 20th defendant sold this divel portion (along withthe paraveni portion to the south) to the 11th defendant.
But the plaintiff’s reply to the strong case made out on the old deedsis that there was a decision in an action C. ft. 749 of 1898 which is bindingon the contesting defendants. Now that action was filed by LiyanageNonnehamy (already referred to) against 8 defendants, one of whom(Endiris) subsequently Bold his 1 /32 share of the. paraveni portion toGimara by deed 11D2 of 1911, and in that way he may be said to be apredecessor in title of the 4th and 11th defendants. Nonnehamy forherself and her children (though they were not added as parties) obtaineddeclaration of title to 7/8 of the entire land sought to be partitioned inthis action. The remaining 1/8 share presumably was the property ofSeuhamy from whom certain of the defendants in that action (includingEndiris) claimed to have inherited it. It is not necessary to considerthe legal effect of the failure to add Nonnehamy’s children as parties,or even to consider to what extent the decree in that action would beres judicata against the contesting defendants, because there were twolater actions which render it unnecessary to consider these matters. In1907 Karunaratne and Abeyhamy (who are the plaintiff’s predecessorsin title in respect of l/4th of the l/8th share which belong to Seuhamy)sued Gimara, Endiris and another in C. R. No. 9212 for a declaration oftitle to their 1/32 share of the entire land sought to be partitioned. Thedefendants resisted the claim on the ground that the plaintiffs wereentitled to 1/32 share only of the paraveni portion while the divel portionbelonged to Gimara alone. The Commissioner of Requests decidedthat the previous decree in C. R. Case 749 was res judicata on this question.I do not intend to discuss the validity of this decision or its effect either,for reasons which I shall presently give. In my opinion the decreeentered in the next case C. R. 4923 is all important. In that case Gimara(who is the 4th and 11th defendants’ predecessor in title) sued the presentplaintiff’s and the present 3rd defendant’s predecessors in title, viz.,Sinnoappu and Babahamy in respect of the divel portion only. Shecomplained that the defendants had claimed 7/16 share of the land andshe asked that site be declared entitled to and quieted in possession ofthat share. The defendants filed answer pleading the decree in C. R.No. 749 as res judicata, but the decree in C. R. 9212 was not pleaded asres judicata. Sinnoappu further pleaded that he was entitled to 7/16share by purchase from Nonnehamy after the decision of C. R. 749 (onthe footing that Nonnehamy was entitled to 1/2 of 7/8), while Babahamypleaded that she was entitled to 7/64 as one of the 4' children of Nonne-hamy who were entitled under that decree to the remaining 1 /2 of 7/8.The two defendants asked that they be declared entitled to 7/16 plus7/64 shares of the portion in dispute. The portion in dispute was clearlydepicted in the plan made for that case and corresponds to the portionclaimed in this action also as the divel land. Decree was entered declaringGimara entitled to these very shares which the two defendants had
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SANSONT J.—Stlinduhamy v. Weeraperuma
claimed. The Commissioner of Requests in his judgment held thatGimara was not estopped from showing that there were two separateadjoining portions, one divel and the other paraveni, and that LiyanageAdirian was the former owner of the divel portion..
We thus have the very dispute which has been raised in this actionconsidered and decided in that case to which the plaintiff's and the 3rddefendant’s predecessors in title on the one hand, and the contestingdefendants' predecessors in title on the other, were parties. The'plaintiff’s and the 3rd defendant’s predecessors in title put forward theclaim which is now put forward in this action and they failed to establishit. In passing I would refer to the two principles which.must governthis matter. One is that a judgment of a Court of competent jurisdictiondirectly upon the point in dispute is a bar between the same parties orthose claiming through them if pleaded .; but if not so pleaded, the matteris left at large (Feversham v. Emerson1). The other principle is thatwhen there are conflicting judgments inter partes, the later adjudicationshould be taken as superseding the earlier (Akkammal v. KomarasamiChetiiar2). Both principles apply to the judgment and decree in C. R.case No. 4923, and it is for this reason that I consider the decisions inthe two earlier cases to be of no importance. They were superseded bythe decision in the third case which is res judicata as between the plaintiffand the 3rd defendant on the one hand and the contesting defendantson the other.
The learned District Judge after discussing the issue of res judicataheld that the contesting defendants are bound by the decree in C. R.No. 9212 and cannot now be heard to say that the 7 lots E to K form aseparate land. He took the view that as no evidence had been led toshow what the issues were in C. R. No. 4923 the decision in that case isnot res judicata. I have already referred to the claims of the parties inthat case and upon those claims the 2 issues which arose (even thoughthey were not framed before evidence was led) were (1) whether therewere two lands or only one and (2) whether Gimara or the two defendantsowned the shares in dispute out of the divel land. The learned Judgealso points out that some of the more recent deeds describe the entireland shown in the plan Z. But where the parties executing them wereentitled to deal only with the paraveni portion, this circumstance cannotconvert the two distinct lands into one land. The boundary which thecontesting defendants rely on as separating the two lands is depicted inthe old plan of 1910 made in C. R. 4923. There is some evidence led bythe plaintiff who tried to show that he and his co-owners used to possessthe northern portion (except the coconut and rubber plantations) alongwith the contesting defendants. But even this will not help the plaintiffto establish that the two lands were in reality one land in the face of theclear evidence afforded by the old deeds, some of which were executedlong prior to the first action instituted by Nonnehamy. It was she whofirst attempted to treat both lands as forming one entity, possibly witha view to claiming a share out of the divel portion which her brotherAdirian alone had been 'leasing as owner of the entirety.
* 11 Exch 385.
55 Madras Law Weekly 511.
Cargills (Ceylon) Ltd. v. Commissioner of Stamps
187
At a late stage of the argument the plaintiff-respondent’s counsel drewattention to the fact that Adirian, when he transferred in 1899 to Andiris,recited title to the divel portion by inheritance through his paternalgrandfather. He argued from this that Adirian’s sister Nonnehamymust therefore have been entitled to a share of this divel portion. Hutthis does not meet the objection that there are two distinct portions ;nor does it help the plaintiff on the question of res judicata.
It is unnecessary for me to discuss the question whether the contestingdefendants have established prescriptive title to the divel portion forthey do not need to rely on a prescriptive title. Once it is found in theirfavour that the divel portion is a distinct land from the paraveni portionand that the plaintiff has no share in the divel portion, that portion mustbe excluded because the two portions cannot then be joined in one actionfor partition. It is not suggested that the plaintiff and/or the otherparties to this action have prescribed against the contesting defendantin respect of this portion.
1 would accordingly direct that the corpus to be partitioned be confinedto lots A, B, C, and D in plan Z ; lots E, F, G, H, I, J, and K must beexcluded from the scope of this action because the plaintiff owns noshare in them, and the interlocutory decree will be varied by deleting thereferences to these lots. The plaintiff respondent must pay the 4th,11th and 19th defendants-appeilants their costs of the contest in thelowpr Court and of this appeal. The other costs will be in the discretionof the Judge who deals with the action in the lower Court.
Fkhsahdo A.J.—I agree.
Decree varied.