102-NLR-NLR-V-05-FERNANDO-v.-MENIKRALA.pdf
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FERNANDO v. MENIKRALA.D. C., Kegalla, 1,168.
Res judicata—Dismissal of action for partition, as plaintiff failed to prove hieright to a share in the land—Action against same defendants for declara-tion of title to a• share in the land—Dismissal of former action pleaded inbar—Badness of such plea.
The dismissal of an action for partition of a land on the ground thatplaintiff had failed to prove that he had a share cannot be pleaded as resjudicata in a subsequent action brought by the plaintiff for a declaration oftitle to that share, because, while in the partition action he has to prove anabsolutely good title as against all the world, in the other action he has toprove only a better title than the defendants.
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N this case plaintiff prayed for a declaration of title to anundivided one-fifth share of. a certain land, and for an order
to put him in quiet possession thereof.
The defendants pleaded, inter alia, that the cause of action allegedhere was the same as that alleged in case No.~4,016, between theplaintiff and the defendants, which after evidence heard hadbeen dismissed in appeal by the Supreme Court.
141. N. A 68216(1/47)
1902.
February fl.
1902.
February 11.
( y?u )Upon the issue of res judicata thus raised the District Judgeheld as follows:—
“ Although nominally a partition suit, it was really an action fordeclaration of title, and the Supreme Court dismissed the action inthese terms: ‘ We think that plaintiff has not proved, as againstthe parties in possession, that he had a right to a share.’ ” TheDistrict Judge dismissed the plaintiff’s action.
Plaintiff appealed.
Bawa, for appellant.—The previous action was for partition,in which the plaintiff had to prove his title as against all theworld, and the decree, if in his favour, would have been a decree.'binding on all the world. The present case, which is one fordeclaration of title, is against the defendants only, and he needonly prove that, as between himself and the defendants, he has.a superior title, and the decree in this case can bind the de-fendants only, and nobody else who is not a party. The partitiondecree, which went against the plaintiff, is therefore no bar to thepresent case. The effect of that decree was to decide that theplaintiff’s title was not so good as to bind the whole world. Thedecree in. the present case, if in favour of plaintiff, would meanthat his title is good as against the defendants, but not so asagainst anybody else. In the present case we are not concernedwith the rights of anybody but those of the plaintiff and ‘ thosewhom he has made defendants. The partition decree cannothelp them. The plea of res judicata is therefore bad.
. Bampayo, for respondent.
11th February, 1902. Bonser, C.J.—
This appeal raises the question whether the plaintiff is entitledto bring this action or not. It is alleged that he is not entitled todo so, because the issue in this action has already been the subjectof judicial determination between the same parties. The DistrictJudge has held that to be – res judicata. I am unable to agree withhim. The previous action brought by the plaintiff against thesame defendants was a partition suit in which he claimed to be theowner of one-fifth ‘of the land, allotting to the defendants theremaining four-fifths. The District Judge held that the plaintiffhad made out his title to the one-fifth claimed, and made an inter-locutory decree on that footing. Defendants appealed to thisCourt, and it reversed the finding of the Court below and dismissedthe action. It is this dismissal which is said to be a bar to thepresent action, which is one claiming a declaration. The plaintiffis entitled, as against these defendants, to one-fifth—the one-fifthwhich was claimed in the partition action.
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Now, if the nature and scope of the two actions be considered, 1802.
I think it is plain that the decision in the former action is no bar February 11..to the present action. In the partition action the plaintiff has to Bonsbr, C.J.make out what I may call an absolutely good title, for the resultof the decree is to give him a title against the whole world, whichcannot be impeached by any one. In an action like the present,all that the plaintiff has to prove is that he has got a better titlethan the defehdant. or what I may call a relatively good title. Itmay be a title which cannot be upheld against some existingthird person, but it may be good enough on which to found adecree in an action such as is the present. It seems to me, there-fore, that the finding that the plaintiff has not proved a title whichwould entitle him to maintain a partition suit is no bar to anaction in which he claims to establish merely a better title thanthe defendants. The order will be that the case go back fortrial.
Wendt, J., agreed.