GARVIN SJPJ.—De Silva v. Jtitoa.
1935Present: Garvin S.PJ. and Maartensz A.J.
DE SILVA v. JTJWA.
40—D. C. Tangalla, 3,234.
Abatement of an action rei vindicatio—Subsequent action for partition—Effective bar—Civil Procedure Code, s. 403.
The abatement of an action for declaration of title to land is a bar againstthe institution of an action for partition in respect of the land where thesame question of title is involved.
^^PPEAL from a judgment of the District Judge of Tangalla.
V. Ranawake, for the plaintiff, appellant.
Aelian Pereira, for the intervenient respondent.
February 4, 1935. Garvin S.P.J.—
This is a proceeding under the provisions of the Partition Ordinance.The subject of the proceeding is a land called Wedigederahena. Theplaintiff claimed to be entitled to 2/3 of the land and assigned the remaining1/3 in equal shares to the two defendants. This proceeding was institutedon November 6, 1930. In May, 1933, the respondent to this appealintervened and claimed that he was entitled to the entirety of the premises.It was pleaded on his behalf that it was not competent for the plaintiff tomaintain this action in view of the circumstance that in an earlier actionbrought by the plaintiff against him in which the plaintiff sought adeclaration of title to these premises an order of abatement had beenentered which is still effective inasmuch as it had not been set aside.The earlier action referred to is No. 2,680 of the same Court. The plaintiff.1 3 N. L. R. 161.2 31 N. L. R. 438.
GARVIN S.P.J.—De Silva v. Juwa.
there claimed to be entitled to the entirety of the land. The defendantdenied his title and claimed that he was the owner. That action wasinstituted in November, 1927, and terminated in an order of abatementon August 21, 1931. It would seem therefore that when that action hadbeen pending for nearly three years the plaintiff conceived the idea ofinstituting this proceeding for the partition of the land and filed thenecessary plaint, concealing from the Court the circumstance that therespondent to this appeal claimed to be owner of the entirety of the landand concealing also from the Court the fact that the action No. 2,680 hadterminated in an order of abatement which had not been set aside. Thatwas the situation when the respondent intervened. After the interven-tion the objection taken by the respondent was argued and considered bythe learned District Judge who upheld the contention that it was notcompetent for the plaintiff to maintain the action as against theintervenient.
The provision of the law which must be invoked in support of such acontention is section 403 of the Civil Procedure Code which enacts that“ when an action abates or is dismissed under this chapter no fresh actionshall be brought on the same cause of action ”. It is not the same as theobjection on the ground of res adjudicata but the provision is an effectivebar against the institution of a second action in respect of the same causeof action. The questions we have to consider are: first, whether this is a“ fresh action ” in the sense of an action instituted subsequent to the dateon which the order of abatement was entered and, second, whether thisis an action based “ on the same cause of action ”.
If the date of the action be taken to be the date upon which the plaintwas filed, then clearly the action was instituted before the order ofabatement was entered. But so far as the intervenient was concernedno action had been brought against him in that he had not been made aparty to the proceedings and not even disclosed in the pleadings as aperson having an interest in the land. In these circumstances it is urgedthat the action can only be said to have been brought as against him asat the date of his intervention. Now there is an authority of this Courtfor the proposition that an action for partition is not brought as againstpersons who are named subsequent thereto until such persons have beenmade parties to the action. This is the effect of the decision in Lucihamyv. Hamidu In this view of the law the present action was not broughtas against the intervenient until the date of his intervention which waslong subsequent to the order of abatement which is pleaded in bar of thepresent action. This would therefore appear to be a fresh action in thesense that so far as the intervenient and the plaintiff are concerned thisaction was brought by the plaintiff as against the intervenient subsequentto the date of the order of abatement. . But is the action “ brought onthe same cause of action ? ” The cause of action in the earlier proceedingsin case No. 2,680 was the denial by the defendant of the plaintiff’s claimto be the owner of these premises, the question at issue then being whetherthe plaintiff or the defendant was the true owner of the entirety of thisland. As a result of the respondent’s intervention in this action, identi-cally the same question arises for decision and the plaintiff when he
i so N. L. R. 41.
King v. Guneraine.
instituted this action must have realized that unless he was completelysuccessful in his subterfuge that was the question which would arise fordetermination immediately notice of the pendency of this proceedingreached the intervenient. Inasmuch as he is now a defendant that isthe one question which arises for determination. It is quite true that intheory an action for partition is a proceeding between co-owners, thepurpose of which is to resolve their respective interests in common intoholdings in severalty. But in a large percentage, perhaps too large apercentage, of cases what the Court has to determine is the respectiverights of parties who are frequently if not generally in conflict as to suchrights. In such cases a proceeding instituted under the Partition Ordi-nance is in substance, and I think in fact, an action for a declaration oftitle. Though in form actions for partition they are often in realityactions for a declaration of title to land. In Ponamma v. Arumugamthe Privy Council held that a certain action for partition brought under theprovisions of the Partition Ordinance though in form an action for parti-tion was in reality an action for the recovery of the land and as such wasobnoxious to the provisions of section 547 of the Civil Procedure Codewhich prevented such an action being maintained until administrationto the estate had been obtained.
I think therefore that the plaintiff’s action as against the intervenientis barred by the provisions of section 403 and that the learned DistrictJudge was right in the conclusion at which he has arrived. This actionwill therefore stand dismissed. The plaintiff-appellant will pay the costsof the intervenient both here and below.
Maartensz A.J.—I agree.
DE SILVA v. JUWA