040-NLR-NLR-V-54-DADALLE-DHARMALANKARA-THERO-Appellant-and-AHAMADULEBBE-MARIKKAR-Respondent.pdf
NAGA1.INGAM A.C.J.—JDadalle Dharmalankara Thero v. AJiamadiilebbe 181
Marikkar
1952Present: Nagalingam A.C.J. and Swan J.
DADALLE DHARMADAHKARA THERO, Appellant,and AHAMADUREBBE MARIKKAR, Respondent
S. C. 43—n.C. Colombo, 5,389
Actio rei vindicatio—Jus tertii—Scope of sztcfi plea—Res judicata.-
Where, in an action rei vindicatio, the defendant sets up a jits tertii, though hehimself may not be claiming under that title, it will be sufficient and competentfor the plaintiff to repel that plea by shewing that a judgment secured by himagainst the third party operates as res judicata as between himself and the thirdparty.
A
IaPPEAL from a judgment of the District Court, Colombo.
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H. V. Perera, Q.C., with E. D. Cosme and O. M. da Silva, for the 1stdefendant appellant.
C. Thiagalingam, Q.C., with L. G. Weeramantry and T. Parathalingam,for the plaintiff respondent.
Cur. adv. vult.
May 21, 1952. Nagalihgam A.C.J.—
The defendant appeals from a judgment of the District Court ofColombo whereby the plaintiff has been declared entitled to the landdescribed in the schedule to the plaint, of which the defendant is inpossession, and the defendant ordered to be ejected therefrom and topay damages and costs to the plaintiff.
The appeal can be disposed of on a short point, and I do not thereforepropose to consider the various points raised on appeal. Admittedlythe land in question belonged to one Don Hendrick Seneviratne, underwhose last will, it is common ground, the land was devised to his sonGranville subject to certain conditions, of which the only one that needsbe noticed is that on Granville’s death without children the property wasto devolve on his brothers and sisters, subject to the proviso that if hiswife survived him she was to be entitled to certain limited interests.According to the plaintiff, Granville died unmarried and issueless, andthereupon the property devolved on his two brothers Irwin and Vincentand his sister Helena Dias, whose interests have now been acquired byhim. Granville died in 1944. The defendant has no conveyance in hisfavour but asserts that in 1934 Granville had dedicated the land to theSangha and delivered possession of it to him, who is a Buddhist priest,and that he has been in possession of it ever since.
182' NAG ALIN”GAM A.C.J.—Dadalle DharmcUankara The.ro v. AhamaduXebbe
JMarikkar
The defendant, conceding that though he may have no title himgplfto the land, yet says that he is entitled to show, as he undoubtedly is,that the plaintiff himself, who seeks a declaration of title, is one whohas no title, and that the title is in some third party. His case is that thereal title is in one Pandula, who, he alleges, is a legitimate childof Granville, and that therefore the conveyances in favour of the plaintifffrom the brothers and sisters or their descendents are of no avail.
The plaintiff answers this by saying that the two brothers of Granvilleinstituted an action against inter alios Pandula, claiming a declarationof title to a 2/3 share inter alia in the land in. dispute and allotting to theirsister Helena Dias the remaining 1/3. In that case the plaintiffs ex-pressly averred that Pandula was not a son of Granville and that he wasentitled to no interests in the land ; after trial decree was entered infavour of the plaintiffs declaring them entitled as against Pandula andcertain others to a 2/3 share of the land in dispute, and the judgmentfurther held that Pandula was not a child of Granville and that theremaining 1 /3 share in the land in dispute was vested in Helena Dias,or more properly, in Helena Dias’ heirs, as Helena Dias was dead atthe time the decree came to he entered.
In reply to this the contention put forward on behalf of the defendantis that whilst a privy in estate to Pandula claiming the land couldsuccessfully be met hy a plea of res judicata, the defendant is not so bound,as he is not a privy in estate, and that therefore the matter is at largeso far as he is concerned, and that he is entitled to show that Pandula inpoint of fact was a legitimate child of Granville and so entitled to theproperty.
No authority has been cited either in support of or against thisproposition. The matter, therefore, has to be adjudicated upon on firstprinciples. If a person who is privy in estate to Pandula cannot bepermitted to dispute the findings in the ease instituted against Pandulaand to show that Pandula was a son of Granville as against the brothersof Granville or their successors-in-title, it seems to me that a fortiori theprinciple must more strongly apply in the case of a third party who,though not a privy in estate, sets up the title of Pandula to resist theelaim of his opponent ; the third party must be held debarred fromreagitating the questions finally disposed of by that case and showingthe contrary of what was decided in it—though the label of res judicatacannot properly be applied.
Tn regard to Helena Dias’s title, too, the finding that Pandula was nota child of Granville completely disposes of the contention that a 1/3share is vested in Pandula. I think, where a defendant sets up a justertii, though he himself may not be claiming under that title, it will hesufficient and competent for the plaintiff to repel that plea by showingthat a judgment secured by him against the third party operates as resjudicata as between himself and the third party, for such a judgment isthe best proof that the third pafty has no title as against the plaintiff andputs an end t© the plea. Indeed, if a contrary view be taken, it wouldbe obvious that the very principles underlying the doctrine of res judicatawoulcf’be set at nought and the unfortunate result would be that the
GTTNASEKABA J.—•Kasipillai v. NagaZinga Kurukhal
183
■same question would be permitted to be litigated as many times as thenumber of trespassers without title who could be found willing andcapable of interfering with a plaintiff’s possession.
I therefore hold that the defendant is debarred from showing that thetitle is not in the plaintiff but in Pandula. The appeal therefore failsand is dismissed with costs.
Swan J.—I agree.
Appeal dismissed.