048-NLR-NLR-V-12-BASTIAN-SILVA-v.-MARIANO-SILVA.pdf
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Present: Mr. Justice Wendt and Mr. Justice Middleton.BASTIAN SILVA, e. MARIANO SILVA.
D.C., Negomho, 7,100. .
Res judioata—Identity of cause of action—Civil Procedure Code-, ss. 34and 207.
Plaintiff claiming title to a land of 9 acres sued the defendantin the Court of Requests (No. 14,632) to vindfcate title to a house.standing on the said land. The defendant olaimed to be entitledto an extent of 3 acres of the said land, and alleged that he hadbuilt the house and resided there and acquired title by prescription.No issue was framed as to the title to the land ; but the Commissionerfound that the defendant had built the house and acquired pre-scriptive title thereto, and dismissed the plaintiff’s action. Theplaintiff then brought this action to vindicate his title to the 3 acresclaimed by the defendant; the defendant pleaded the judgment inthe previous action (C. R. 14,632) as barring the present suit.
Hdd, that the judgment in the previous action could not berelied on as res judicata, inasmuch as the cause of action therewas not the same as the cause of action in the present suit.
A
ction rei vindicatio. Appeal by the plaintiff from a judgmentdismissing his action on the ground that it was barred by
section 34 of the Civil Procedure Code.
E. W. Jayewardene, for the plaintiff, appellant.
Sansoni (with him F. M. de Saram),- for the respondent.
Cur. adv. milt.
June 4, 1909. Middleton J.—
In this case it appeared the same plaintiff instituted actioDC. R., Negombo, 14,632, on November 28, 1906, against the samedefendant, claiming that the defendant be ejected from ahouse stand-ing on land described in the schedule to the plaintiff as 9 acres inextent, which had been donated to the plaintiff, subject to the donor’slife interest, by deed of November 12,1903. The plaint averred thatthe defendant had been allowed to occupy the house by fhe donorsto the plaintiff free of rent. The defendant, in his answer, averredthat the plaintiff’s donors had given him 3 acres out of the 9 acresmentioned in the schedule to the plaint about thirty-five years ago,and that he had built the house in question, resided on it, andtaken the produce of the said land and planted it, and he claimedtitle by adverse possession under section-'3 of Ordinance No. 22of 1871
The issues framed in the case were
Has the plaintiff gained a prescriptive title to the house ?
Did the. defendant build the house ?
1909.
June 4.
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1909.
June 4.
Misdubton
J.
No issue was framed as to the title to the land at all.
The Commissioner of Requests found that the defendant hadobtained a title by adverse' possession to the house, and gavejudgment for the defendant.
In the present action the plaintiff in his plaint averred that thedefendant had been in the unlawful possession of 3 acres of the same9 acres mentioned in the schedule to the plaint in the Court ofRequests action since November 28, 1906, the date of the Court ofRequests action, and prayed for a declaration of title, to him and theejectment of the defendant. In his answer the defendant pleadedagain the gift to him of the 3 acres by plaintiff’s donors, the buildingof the house and the planting of the said land, and its adversepossession by him for upwards of twenty years as against the donors,and further pleaded that the judgment in C. R., Negombo. 14,632,estopped the plaintiff from seeking to eject the defendant.
The District Judge gave judgment for the defendant and dismissedthe plaintiff's action, holding that the .doctrine of estoppel did notapply, but that section 34 of the Civil Procedure Code governed thecase. The plaintiff appealed, and at the outset before us admittedby his counsel that as regards the house and land on which itstood the decision in the Court of Requests case Was res adjudicataof his right to claim it, but he argued that he was not so estopped ■as regards his claim to the 3 acres either by section 207 or section34 of the Code.
In Ibrahim Baay el al. v: Abdul Rahim,1 I have set out what inmy opinion constitute the elements necessary to establish a validestoppel by judgment in personam under the English and CeylonLaw. If wf- look at section 34 it is clear that a plaintiff must includethe whole 1 the claim he is entitled to make in respect of his causeof action, but he may relinquish a part of it to enable him to bringhis action in a cheaper scale. If he omits to sue in respect of, orintentionally relinquishes any portion of, his claim, he cannot after-wards sue in respect of the portion so omitted or relinquished. Ifhe has more than one remedy for the same cause of action, andomits without the leave of the Court obtained before the hearingto sue for any of such remedies, he cannot afterwards sue for theremedy so omitted.
Section 207 makes it obligatory to claim every right of property
or relief of any kind which can be claimed, set up, or put in
issue between the parties upon the cause of action for which theaction is brought, and whether it be actually so claimed, set up, orput in issue or not, such right of property or to relief becomes resadjudicata on the passing of the final decree. It, therefore, is of theutmost importance to clearly ascertain what was the cause of actionin every case, where the question of res adjudicata is raised in respectof its decision.
» {1909) 12 N. L. R. 177.
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The learned District Judge holds here that the cause of action inthe two cases was the same, i.e., an adverse possession by the defend-ant of the house and land on which the house stands. I cannotagree with his opinion. It certainly was the cause' of action in theCourt of Requests so far as the land on which the house actuallystands is concerned, but in the District Court case it is specificallyaverred in the plaiDt that since the date of that action the defendanthad been iu unlawful possession of the 3 acres, thereby making thecause of action an adverse possession of the 3 acres, which had notbeen complained of by the plaintiff, or apparently asserted by thedefendant until he filed the answer in the Court of Requests case.
The evidence given in the District Court case by'plaintiff anddefendant shows that the action was only instituted for the house,and that the defendant raised a claim to the land as a defence, notin reconvention. The Arachchi’s evidence is of a contradictorycharacter in his cross-examination, and does not to my mind showthat the plaintiff knew at the time of the institution of his actionof any claim to the 3 acres by the defendant, but wanted to ejectdefendant from the house as being the only claim he was thenentitled to make on the defendant’s adverse possession of it.
The defendant it is true raised the question of the 3 acres in hisanswer, but judging from the 4th paragraph of the plaint in thepresent case that would have been a claim which if raised inreconvention would have been far beyond the jurisdiction of the Courtof Requests. No issue was settled on the point, and the Commis-sioner appears to have ignored it, and confined his inquiry into therights of the parties as to the house raised by the plaintiff, uponwhich he gave judgment.
In my view, therefore, the plaintiff included in the Court ofRequests case the whole of the claim which he was entitled to makein respect of the only cause of action he apparently had at the time,i.e., the alleged adverse occupation of the house by the defendant.I also think that the cause of action in the Court of Requests casewas different to that relied on in the District Court case, which I havealready distinguished. I would hold therefore that neither undersection 34 or section. 207 of the Civil Procedure Code is the plaintiffestopped from bringing this action, and would set aside the judg-ment of the District judge and send the case back to be tried in duecourse, allowing the appeal with costs.
Wundt J.—1 agree.
Appeal allowed ; case remitted.
1909.
June 4.
Middleton
J.
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