NAGALINGAM J.—JBanda v. Karohamy
1948Present: Howard C.J. and Nagalingam J.
BANDA, Appellant, and KAROHAMY, RespondentS. C. 290—D. O. Kurunegala, 2,941
Res judicata—Title accruing to defendant after institution of action—Not setup—-Subsequent action by defendant—Cannot set up this title.
A defendant is bound to set up by way of defence every ground avail-able to him not merely at the date of the institution of the action butaccruing to him thereafter and prior to judgment. If he fails to do so,he cannot in a subsequent action be permitted to rely on the self-sameground in support of his claim.
y.PPKAL from a judgment of the District Judge, Kurunegala.
H. V. Perera, K.C., with Cyril E. S. Perera and T. B. Dissanayake,for plaintiff appellant.
N. E. Weerasooria, K.C., with W.. D. Ounasekera, for defendantrespondent.
-Cur. adv. wit.
December 6, 1948. Nagalingam J.—
A question of law relating to the doctrine of res judicata arises on thisappeal. The facts which give rise to the question are briefly these. OneAllis Appu was admittedly the owner of the land in dispute in this case.The land was sold in execution against him and was purchased by twopersons, Saro llainy and TJk-ku Menika,in whose favour Fiscal’s conveyancedated December 8, 1931, was duly issued. They by deed (P 1) datedJuly 29,1943, transferred the land to the plaintiff. Prior to the executionthe Fiscal’s conveyance, however, Allis Appu by a deed dated October
NAGAL INGAM J.—Banda v. Karohamy
14, 1931, conveyed the land to one Lamina who by a deed of 193bconveyed it to the defendant. The defendant instituted action No. 1604of the District Court of Kurunegala on July 1, 1943, against the presentplaintiff and two others claiming declaration of title to the land. Thepresent plaintiff was one of the sons of Allis Appu and he was named theSecond defendant in the case. In that action the present plaintiff andhis fellow contestants denied the title of the defendant to the land andset up title in themselves based firstly, on inheritance from Allis Appuand secondly, on prescriptive possession. After trial, judgment wasdelivered in favour of the present defendant declaring him entitled t.o theland and decree was entered on Mareh 26, 1945. A couple of monthslater, namely, on June 9, 1945, the plaintiff commenced this action againstthe defendant for declaration of title to the land basing, however, his titleon the conveyance (Pl),a title which admittedly was not set up by himin defending the earlier action. For the purposes of this case it isnecessary to. draw pointed attention to three salient dates. The earlieraction by the present defendant against the present plaintiff and otherswas instituted on July 1, 1943, while conveyance in favour of the presentplaintiff by Saro Hamy and Ukku Menika was executed about a monthlater, namely, on July 29, 1943, and the present plaintiff and his fellowcontestants filed their answer in that action on September 8, 1943, thatis to say, about five weeks after the execution of conveyance (P 1) infavour of the present plaintiff.
The defendant pleads that the decree in the earlier action operates as ares judicata in respect of the plaintiff’s claim and that the plaintiff isdebarred from-re-agitating the question of title in this action. Theplaintiff disputes the soundness of the plea basing his contention on thefact that at the date the previous action was instituted he had notacquired the title under conveyance (PI) and therefore, was not underany obligation to set up by way of defence the title acquired there-under.
The question that arises for determination, therefore, is whether adefendant is bound to set up by way of defence every ground availableto him not merely at the date of institution of action, but accruing tohim thereafter and prior to judgment. It has not been contested thatwhere a defendant fails to put forward a defence in existence at or priorto the date of institution of action he would not be permitted to makeuse of that ground either by way of defence or attack in a subsequentaction. It is, however, contended on behalf of the plaintiff that where aright or title vests for the first time on a defendant subsequent to the dateof institution of action he cannot in law defend the action on the basisof the right or title that accrued since the institution of action. The'explanation to section 207 of the Civil Procedure Code imposes no suchlimitation but it has been argued that as only rights in respect of thecause of action for which the action is brought should be set up and as thecause of action has to be determined by reference to facts existing at thedate of institution of action, any right that accrues subsequently is there-fore excluded. Reliance for this view is placed on the case of Geonaratnav. Fernando '. That was an action for declaration of title, ejectment and1 (1913) 16 JV, L. R. 429.
TJArtAT.TMflAM J.—Banda v. Karohamy
damages. The defendants set up title in themselves but withoutclaiming declaration of title in their favour. They only prayed fordismissal of the plaintiff’s action. Thereafter they amended theiranswer by averring that subsequent to the institution of the action theyhad also acquired title to the land from the Crown. Objection was takenon behalf of the plaintiff to the defendants setting up by way of defencethe title acquired by them from the Crown. The learned District Judgeoverruled the objection, but on appeal the judgment of the DistrictJudge was reversed.
Pereira J., who delivered the judgment of the Court said,
“ However, as observed already, the defendants contented themselveswith praying for dismissal of the plaintiff’s claim …. Now,the defendants cannot succeed in their prayer for -a dismissal of theplaintiff’s claim unless they show that they did not oust the plaintiff,or they are in a position to justify the ouster by proof that at the dateof the ouster they had a superior title, or were acting under the authorityof somebody having a superior title. The mere fact that some thirdperson had a title superior to that of the plaintiff is no justification atall of the ouster by the defendants. So that neither the fact that,at the date of the ouster pleaded, the Crown had title to the propertyin claim, nor the fact that, since the commencement of the action, thedefendants have acquired title, is relevant on the question whether theouster was justified.”
It will thus be seen that the learned Judge there was dealing with thedefence to the ouster complained of by the plaintiff and his observationshave no application to a case where the defendants pray for a declarationof title in themselves. In fact , the learned Judge gave his mind to thisaspect of the matter when he said this :—
“ And as has been recently held by the Privy Council in the case ofSilva v. Fernando, in an action rem vindicare, the plaintiff cannotsucceed on the strength of a title acquired after the commencement ofthe action, although, possibly (I may add), where a plaintiff havingtitle at the commencement of the suit loses it during its progress the defendantis entitled to he absolved.”
If, therefore, the defendant “ is entitled to be absolved ” where theplaintiff loses his title to the land during the progress of the action howcould that relief be claimed excepting under our procedure by pleading it,and having an issue framed in respect of it. This case, therefore, is infact an authority for the proposition that where the plaintiff in an actionrei vindicatio loses title to the land subsequent to the institution of theaction, it is open to the defendant to establish the-fact of loss of title onthe part of the plaintiff and to claim relief based on that circumstance.It is, however, plain to see that in such a case in regard to question of ouster,and consequential damages the defendant cannot successfully evadeliability to pay damages by proof of loss of title on the part of the plaintiffsubsequent to the ouster. Por instance, where a plaintiff, the admittedowner of property, sues a trespasser for declaration of title, ejectment anddamages based upon an ouster and the plaintiff is sold up in execution
NAG ALIN GAM J.—Banda v. K.arohamy
during the pendency of the action and the trespasser himself becomes thepurchaser at the execution sale, it is clear that the plaintiff would beentitled to claim damages against the trespasser up to the date of divest-ment of his title, and it is also equally clear that the plaintiff cannot claimejectment of the trespasser from the land. In fact, Lascelles C.J. whotook part in the case cited above dealt with a case where the facts weresimilar to those I have get out.
In the case of Silva v. Silva x, the learned Chief Justice said,
“ Now, the result of this action is, in my opinion, almost absurd.Judgment has been given for the plaintiff, and it is admitted that allthe added defendant has to do, now that he has obtained his Fiscal’stransfer (plaintiff’s title having devolved on the added defendant byvirtue of an execution sale against the plaintiff), is to bring anotheraction and obtain a reversal of those proceedings. I cannot believethat our system of procedure contemplates a position which is somanifestly unreasonable.”
It was also sought to reinforce plaintiff’s contention by a referenceto the principle that the rights of parties have to be determined as at thedate of action. But as was observed by de Kretser J. in the caseArulampalam v. Kandavanam 2
“ The rule that the rights of parties ought to be decided at the datewhen an action is to be instituted cannot apply to every circumstance.”
– In that case objection was taken to a plea of res judicata being putforward on the ground that it had accrued only after institution of action,but the learned judge in overruling it expressed himself thus :—
“ …. the doctrine of res judicata so far as it relates to
prohibiting the re-trial of an issue, must refer not to the date of thecommencement of the litigation, but to the time when the judge iscalled upon to decide the issue.”
That case, however, dealt with a problem somewhat different from thatarising on this appeal. In the present case the question is whether thedefendant not having put forward a plea accruing to him after institutionof action but before judgment can in the subsequent action be permittedto rely upon the self-same plea in support of his claim.
The Privy Council laid down the law in the widest terms possiblealthough no doubt the facts in that case show that the plea was one whichin point of fact had been put forward in the earlier action, but had beenabandoned at the trial.
In the case of Sirimut Rajah Moottoo Vijaya Raganadha Bodhi Gooroo-swamy Periya Odctya Taver v. Katama Natchiar and another3, LordWestbury in delivering the opinion of the Board said,
“ When a plaintiff claim? an estate and the defendant being inpossession resists that claim he is bound to resist it upon all the groundsthat is possible for him according to his knowledge then to bring forward.”
» (J973) 16 N. L. B. 89.* (1939) 16 C. L. W. 5.
« 11 M. I. A. (50).
WIJEYEWAUDENE A.C.J.—The King v. Gabo Singho
That the language used by the noble Lord is not to be limited by thefacts of the case with which he was dealing is supported by the observationof Blackburn J., in the case of Newington v. Levy1,
" I am inclined to think that the doctrine of res judicata applies toall matters which existed at the time of the giving of the judgment andwhich the party had an opportunity of bringing before the Court.”
Tn this case it is quite obvious that the present plaintiff had the fullest'opportunity of bringing before the Court his claim of title to the landbased upon the conveyance (P 1), for at the date he filed answer thetitle conveyed by P 1 hall vested in him and there was nothing toprevent him from pleading that title as well. The present plaintiff nothaving done so and not having obtained an adjudication upon that titlein the former suit, the decree in that suit must therefore be deemed tooperate as res judicata in regard to the present assertion of his claim. Forthese reasons I hold the judgment of the learned Ifistriet Judge is right.The appeal therefore fails and is dismissed with costs.
Howabd C.J.—I agree.
BANDA, Appellant, and KAROHAMY, Respondent