H.M. KALU BANDA and another, Appellants, and S. K. B. A. D. DAVID APPUHAMY, Res

036-NLR-NLR-V-66-H.M.-KALU-BANDA-and-another-Appellants-and-S.-K.-B.-A.-D.-DAVID-APPUHAMY-Res.pdf


162
L. B. DE SELVA, J.—Kalu Banda v. David Appuhamy
1963Present: L. B. de Silva, J., and Abeyesundere, J.H. M. KALTJ BANDA and another, Appellants, andS. K. B. A. D. DAVID APPUHAMY, Respondent
8. G. 274(1961—D. G. Kurunegala, 13,392(L
Bes judicata—Same parties and subject matter in two rei vindicatio actions—Newtitle acquired by one party after the decree in the earlier case—Validity—CivilProcedure Code, s. 207.
A decree entered in favour of the plaintiff in an action for declaration oftitle to a divided portion of a land consisting of certain lots cannot operateas res judicata in another similar action between the same parties in respectof the samo land but in respect of a different lot, title to which was acquiredby the defendant from a third party subsequent to the decree in the earlieraction.
Ap:
’PEAL from a judgment of the District Court, Kurunegala.
R. Gunaratne for 1st and 2nd Defendants-Appellants.
T. B. DissanayaJce, for Plaintiff-Respondent.
Cur. adv. vult.
October 22, 1963. L. B. de Selva, J.—
By decree (P3) dated 26/9/52 the plaintiff was declared entitled to adivided portion of the land called Medawatta alias Alutwatta subse-quently depicted as lots .1, 2, 3, 5 and 6 in plan No. 1136 of 1954 (P4)in D. C. Kurunegala Case No. 5554 as against the 1st. and 2nd. defendants.These lots are identical with lots 1, 3, 5, 6, 7, 10, 11, 12, 14A, 20 and 26marked in red in plan No. 1267 of 13.2.59.
The 1st. and 2nd. defendants claim title in this case to Lot 9 onlyin plan No. 1267 on a title independent of that set out by them in D. C.Kurunegala No. 5554. They allege that T. P. Baptist was entitled tothe land depicted in T. P. 14977 marked “ X ” attached to the CrownGrant XI of 1937. Admittedly the title plan “ X ” includes Lot 9now claimed by the 1st. and 2nd. defendants.
According to the defendants, the title of Baptist devolved on Samanon deeds Dl to D4. Saman by deed 3395 dated 25/5/1955 (D5) conveyedhis rights to 1 and 2 defendants. The deed (D5) in favour of 1st. and2nd. defendants was executed subsequent to the decree (P3) in favourof the plaintiff.
L. B. DE SILVA, J.—Kalu Banda v. David Appuhamy
163
At the trial, certain issues were raised and two of them related tothe question of res judicata. They were as follows :—
Issue (3). Is the decree in case No. 5554 res judicata between theparties ?
Issue (7). Is the decree in case No. 5554 res judicata in regard tothe title now set up by the 1st. and 2nd. defendants ?
The issue relevant to the present dispute is really Issue (7). Thelearned District Judge answered these issues in favour of the plaintiffand entered judgment for plaintiff as prayed for with costs but limitingthe damages as agreed to by the parties. The 1st. and 2nd. defendantshave appealed from this judgment and decree.
The Law of res judicata applicable in this case is the Roman DutchLaw, subject to the amendments set out in sections 34, 207 and 406of the Civil Procedure Code. Of these sections, it is only section 207that has any semblance of an application to this case. Under the
explanation to that section, every right to property
which can be claimed, set up or put in issue between the parties to theaction upon the cause of action for which the action is brought, whetherit be actually so claimed, set up, or put in issue or not in the action,becomes, on the passing of the final decree in the action, a res judicata,which cannot afterwards be made the subject of action for the samecause of action between the same parties.
The right to this property which the 1st. and 2nd. defendants acquiredfrom a 3rd. party, subsequent to the filing of the previous action andits decree, could not possibly have been claimed, set up or put in issueby these defendants in the previous case.
Under the Roman Dutch Law, Voet says: “ There is nevertheless noroom for this exception unless a suit which had been brought to an end,is set in motion afresh between the same persons, about the same matterand on the same cause of claiming, so that the exception falls away ifone of these three things is lacking.” (Bk. XLIV—Tit. 2. section 3—Gane Vol. 6. p. 554). This passage was cited with approval byHis Lordship the Chief Justice Basnayake in Sathuh v. Layaudeen
In this case are the appellants setting up the cause of claiming asin the previous action ? No doubt the parties are the same and thesubject matter is the same. Under Bk. XLIV—Tit. 2. Section 4, Voetstates “ Action may be the same, but cause different. Then again converselyit can happen that the same action indeed is set in motion as had beenset in motion by the earlier judicial proceeding, but nevertheless thecause for claiming is not for that reason the same. Instances wouldbe if he who has sought to vindicate a thing and has gone down, claimsthe same thing afterwards over again when he has acquired the owner-ship, or if a defendant who has been absolved from an earlier judicial
’(I960) 63 N. L. R. at p. 28.
164
L. B. DE SILVA, J.—Kalu Banda v. David Appuhamy
proceeding because he was not in possession of the property, is suedafresh in a vindicatory action when he has thereafter begun to havethe possession ” (Gane—Vol. 6—p. 557).
Counsel for the Plaintiff-respondent relied on certain decisions thatappeared to support his case. He cited the case of Abdul Rahiman v.Ismail and others 1. Wood Renton C. J. stated, “ But it was arguedthat, in spite of the decree in D. C. Galle No. 7933, the 1st. defendantcan still contest the plaintiff’s right to the land on the strength of hisconveyance from Pathu Muttu, who was no party to the former action.I entirely agree with the learned District Judge that he cannot do so.Whatever might be the position of Pathu Muttu in the matter, the 1st.defendant is himself bound by the decree in D. C. Galle No. 7933. Thequestion then decided against him was whether the land in suit wasthe identical land referred to in a Kadutan granted to the plaintiff onhismarriage and if so, whether he had acquired title to it by prescription ”.The principles of law involved, if I may respectfully say so, have notbeen considered and laid down in that case.
There is a conflict of views in the Indian Courts as to what are therights to property etc. that can be claimed, set up and put in issuebetween the parties upon the cause of action sued upon.
In “ Treatise on the Law of Res Judicata ” by Hukm Chand—1894,the author refers at p. 88 to the English case of Hunter v. Stewart2,where Lord Westbury L.C., observed: “ the case made by the 2nd. billmust be taken to have been known to the plaintiff at the time of theinstitution of the first and might have been then brought forward, andit may be said, therefore, that it ought not now to be entertained, butI find no authority for this proposition in civil suits, and no case wascited at the Bar, nor have I been able to find any, in which a decreeof dismissal of a former bill has been treated as a bar to a new suitasking for the .same relief, but stating a different case giving rise to adifferent equity ”.
At page 90, he states that this case has been followed in several casesin India and gives references to them. At page 92, Section 45, he states,“ The contrary also appears to have been held in some cases, but chieflyon the ground that section 2 of the Code of 1859 barred a subsequentsuit on the same cause of action and the decisions under that Code hadreference to the identity of the cause of action, the question of thetitle, which at least, in real suits was not identical with it, having comeinto consideration, if at all, incidentally ”.
But this conflict of Indian decisions has no application to a case wherea party to the former suit, has acquired a new and independent titleto the subject matter of the former litigation.subsequent to the decreein the earlier action.
1 (1917) 4 G. W. R. 1.
2 (1862) 31 L. J. Ch. 346.
de Silva v. Mohamed
165
The decision in Abdul Rahiman v. Ismail and others {supra) was followedin Johanis v. Punchi Rami x. In that case, it was held that a personwho had purchased a land from the Crown after a partition Decree hadbeen entered for that land, was bound by that decree though the Crownwas not bound by that decree.
In Annamalay Ghetty v. Thornhill a, it was held that the dismissalof an action for non-compliance with the requirements of the BusinessNames Registration Ordinance, was no bar to a subsequent action onthe same cause of action as the dismissal was not in the exercise of itsjurisdiction over the subject matter of the action but for non-compliancewith a condition for the exercise of its jurisdiction.
The last two decisions can be distinguished and are not of assistancein the decision of the point of law raised in this case.
As the appellants are setting up a new and independent title whichthey acquired after the decree in the earlier case, to the Lot in dispute,we hold that their cause for claiming is different from the claim theyset up in the earlier action and it is not barred by the plea ofres judicata.
The Issues should be answered in this case as follows :—
Yes, but it does not affect the title put forward by 1st. and 2nd.defendants in this case.
7. No.
The Judgment and Decree entered in favour of plaintiff is set asideand the case is sent back to the District Court for trial on the otherissues in the case. The 1st. and 2nd. defendant-appellants are entitledto the Costs of the proceedings in the District Court on 25.5.61 andof this Appeal.
Abeyesundeee, J.—I agree.
Appeal allowed.