087-NLR-NLR-V-26-ABEYSUNDERA-v.-BABUNA-et-al.pdf
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Present : Ennis A.C.J. and Schneider J.
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ABEYSUNDERABABUNA et aL
226—D. C. Matara, 374.
Ses judicata—Dismissal of partition action for non-prosecution—Subsequent action for partition of same land—Civil ProcedureCode, ss. 5, 6, and 207.
The dismissal of a partition action for non-prosecution is nobar against a subsequent action for the partition, of the same land.
The cause of action upon which a partition action is based, isinconvenience of common ownership, which is a recurring one..
A
PPEAL from an order of the District Judge of Mataradismissing an action for partition on the ground that it was
barred by a previous action for the partition of the same land.J (1906) 2 K. B. 119.a (1912) 15 N. L. R. 311.
1925.
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1925.It appeared from a certified copy of the proceedings of the previous
jjfrftfimmffrn ^^on, produced by counsel, that the action had been dismissedv. Babuna before the day of trial had been fixed, and even before some of thedefendants had been served with notice.
Samarawickreme (with him H. V. Per era), for plaintiff, appellant.
It. L. Bartholemeusz, for 26th defendant, respondent.
February 17., 1925. Ennis A.C.J.—n
This is an appeal by a plaintiff in a partition action, whose actionhas, been dismissed with costs. The difficulties on appeal arisefrom the neglect to observe regular procedure. The learned Judgedecided the shares of each of the parties to the action and allotteda definite share to the plaintiff, but on a plea that the plaintiffsaction was barred owing to the dismissal of a previous action forpartition, the learned Judge dismissed the plaintiff’s case. Theplaintiff appeals. Thei petition of appeal does not make anybodyrespondent to. the appeal, although it names thirty-six defendants.It transpires that two of the persons named as defendants are dead,and after hunting throughout the record, it would seem thatcertain persons have been substituted as defendants in the place ofthe 14th defendant, and they have been added in the captionin the Court below as the 37th to 44th defendants. It would seemthat the 84th to 36th defendants were added as the heirs ofthe deceased 25th defendant. The petition of appeal does not evenmention the 37th to 44th defendants as defendants in the action.However, it appears that certain of the defendants accepted securityfor costs on the appeal, so they appear to have accepted the positionthat they were respondents to this appeal, and all the defendantswere served with notice of appeal. There is only one appeal fromthe decree, and that^is the appeal by the plaintiff. At the hearingof the appeal an appearance has been entered for the 26th defendantonly. In holding that the decree in the previous action Xo. 9,972was res judicata, .the learned Judge relied upon the case ofPerera v. Fernando.x That case is not on all fours with the. present one, because there the previous action was one for a declara-tion of title and not for partition. Two cases have been cited onappeal (Fernando v. Menikrala 2 and Sanchi Appn v. Jeeris Appn ■**).In the first of these cases it was held that the dismissal of an actionfor the partition of a land on the ground that the plaintiff had failed,to prove that he had a share, cannot be pleaded as res judicatain a subsequent action brought by the plaintiff for a declarationof title to that share, because in the partition action he had to provean absolutely good title against all the world, and in theother action he had to prove only a better title than the defendants.
1 (1914) 17 N. L. R. 300.* (1902) 3 X. L. R. 369.
» (1920) 22 X‘ L. R. 176.
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In the second of these cases it was held that the* dismissal of a 198&plaintiff’s action* for partition on the ground that he1 had neither enkibA&J.paper title nor title by prescription was no bar to the subsequent—*
action for declaration of title between the same parties. Thesecases are to an extent more to the point, inasmuch as in both ofthem the previous action was one for partition, but in both thosecases the subsequent action was an action for declaration of title.
We have before us now two partition actions to consider. I havea considerable difficulty in bringing a partition action, by itself,within the provisions of section 207 of the Civil Procedure Code*which deals with res judicata. The explanation to that sectionsays that on the passing of a final decree in an action in whichrelief of any kind is claimed, the cause of action for which theaction was brought is res judicata. Cause of action " is definedin section 5 as the wrong for the prevention or redress to whichan action may be brought. Now clearly in a partition action theaction itself is not founded upon a wrong. It is an action to giverelief against the inconvenience of common possession, so thata partition action at its institution is not an action founded upona cause of action as defined in section 5, but it would be an actionunder the definition of “ action ” given in section 6. Section 207,if the limitation contained in the explanation be regarded as alimitation on the main words of the section, would not apply topartition actions, but there is no doubt that in partition actionsa contest frequently arises between the parties with regard to therights of parties and title generally, and with regard to which theparties seek redress, such a contest would be based on a cause ofaction as defined in section 5, and the adjudication upon it mightwell be res judicata under section 207. We have not been suppliedwith a copy of the previous action, but the learned Judge examinedthe record, and he tells us that the previous action was dismissedowing to non-prosecution. Non-prosecution by itself does notjustify the dismissal of an action, but, however, apparently noappeal was taken in the matter, so that the decree dismissing theprevious action stands. We are told, however,' by Mr. Samara-wickreme, who has a certified copy of the proceedings in the previousoption, that the action was dismissed before the day for trial had■beep fixed, and even – before some of the defendants in the actionhad been served with notice of the action. In the circumstances,it would seem that no contest arose In the previous action uponany dispute between the parties to which the explanation insection 207 can apply. In these circumstances, I would followthe decisions in Fernando v. Menikrala {supra) and Sanchi Appu v.
Jeeris Appu {supra), and hold that the previous action is not resjudicata. It is difficult, however, to be sure that in this action anyissue of estoppel by res judicata was properly raised. Issues appear tohave been framed on two contests which arose, and then a remark
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1625. appears to have been made to the Court that the previous actionEnnisA.C.J. was fee judicata^ a suggestion which appears to have been repudiated
» by the other side. Then, without any issue or any evidence with
^Babuna regard to the previous action, the Judge proceeded to d.ecide thequestion 'by looking at the record in the old case. Moreover, thereis nothing before us to show that the 26th defendant, who firstmentioned the question of res judicata in his answer, was a partyto the previous action. The only fragment of the previous actionfiled in the case is F 6, and that does not show the intervention ofthe 26th defendant, and does not show that he was duly added asa party to the previous action on his intervention. Another pointmay be considered in reviewing the question as t-o whether theprevious action is res judicata. If one regards a partition actionas an action founded on some cause, even if it be not such a causeas falls within the- definition in section 5 of the -Civil ProcedureCode, then the cause of action would seem to be a recurring one,that is, it is due to a continuance of the common ownership, whichexists from day to day as the inconvenience of common ownershiprecurs day by day.
So it is possible to regard the present action as founded uponsome cause which was not the cause upon which the previous partitionaction was founded. In other words, it is a fresh inconvenienceand a new cause of action. The present action, however, is suchthat whatever the decision on the question of res judicata may be,some intervention by this Court is necessary in the interests of allparties to the action, because, on the contest raised and decidedin the present action, the claims of all the defendants have beendecided, and they have not appealed, so that there is an outstandingshare with regard to which the plaintiff is in possession and to whichnone of the defendants could have any claim. I would accordinglyset aside the decree subject to the remark which I will presentlymake, and direct a partition to be entered in terms of the learnedJudge’s findings as to the shai'es of the parties.. In view of thesmallness of some of the shares allotted by the learned Judge, itmay be that a partition will be- Smpracfticable and* that an orderfor sale should be made. If the learned Judge finds that to be so,he may make an order for sale.
The costs of the action will be pro rata. I will make no orderfor the costs on -appeal. The plaintiff has taken no great care informulating his appeal and in following the prescribed procedure,and the defendant appears to have been responsible for raising thesuggestion that the case could be decided upon the principles ofres judicata.,
Schneider J.—I agree.
Set aside.