( 153 )
The Commissioner held that he had jurisdiction to adjudicateon the matter and awarded Rs. 150 damages to the plaintiff.
The defendant appealed.
Navaratnam (with Wendt), for defendant, appellant.—Though .theaction is in the form of an action for damages the real questionin issue is one of title. The jurisdiction of a Court of Requests incases in which the question was the title to land over Rs. 300 in valuehas been the subject of conflicting decisions of the Supreme Court.The learned Commissioner has followed one set of decisions and notthe other.
If the defendant sets up title in himself or in someone else and<the land is over Rs. 300 in value .the Commissioner has no juris-diction to adjudicate on the matter. (Section 77, Courts Ordinance;Dingiri Appuhamy v. Appuhamy l * 3; Wickremenayake v. Edirisingha. 4 * * 7 *)The decision in this case if upheld would be a res, adjudicata.(Section 207, C. P. C.; section 34, C. P. C.; Andris v. Siriya et al. 3.Dingiri Menika v. Punchi Mahatmaya et al.*'; Samidhi v. Pieria.*)[Fisher C.J.—The words of section 81, Courts Ordinance, answerthe question of the jurisdiction of the Court of Requests?]
Section 81, Courts Ordinance, contemplates cases in which thedefendant counterclaims.
Counsel cited further Gatherina v. Silva, * Baban Appu v.Gunewardene et al.,1 Silva v. Fernando et al.,* Pedris v. Mohideen,’Jose Antonio Baretts v. Francisco Antonio Rodriqu&s and others,10Podisinno et al. v. Perera Appuhamy,11 Rasiah Joseph v. PunchiAppuhamy.12
Ranawdke, for plaintiff, respon lent.—The Court of Requestscannot merely on the pleadings refuse to adjudicate on the matter,but must consider the bona fides of the defence (see A. L. Smith L.J.in Howorth v. Sutcliffe,13 Latham and another v. Spedding1*).
The decision on the question of title will not operate as a resadjudicata as the inquiry into title was only incidental (see Muttu-sami Ayyar J. in Manappa Mudali v. S. T. McCarthy 15; see Pereira J.in samichi v. Pieris,16 Bapuji Ragihunath and other® v. KuvarjiEdulji Umrigar, 17 Alagirisa’mi Naikerv. Innasi Uday an and another. uCounsel cited further Darma Ayyan v. Rajapa Ayyan and another, 19BanaMyanage Poddi v. Francisou Fernando Obeyesekera. 30
1 (1913) Court of Appeal Cases,Vot. HI., 87.
30 N. L. R. 158.
3 (1924) 27 N. L. R. 70.
(1910) 13 N. L. R. 59.
(1913) 16 N. L. R. 257.
(1907) 10 N. L. R. 260.
7 (1907) 10 N. L. R. 167.
3 (1908) 11 N. L. R. 375.
9 (1923) 25 N. L. R. 105.
181. h. R. 35 Bombay 24.
11 (1926) 5 Times L. R. 46.
11 29 N. L. R. 159.
19 (1895) 2 Q. B. 358 at 364.
>* (1851) 17 Q. B. 440.
19 (1881) 1. L. R. 3 Madras 192,at 196. '
19 (1913) 16 N. L. R. 257.
171. L. R. 15 Bombay 400.
10 (1881) l. L. R. 3 Madras 127.
191. L. R. 2 Madras 181.
99 3 S. C. C. 13.
Been Bandav.
( 154 )
Heen Bandav.
.Vavaratnam (in reply).—In Podishrtto ct al. v. Perera Appuhamy *•Jayawardene J. definitely states that a decision of a Court ofRequests on a question of title may be pleaded as res judicata in anysubsequent litigation though the question of title arose indirectly.
The- Indian decisions cited in this connection have no applicationsince a Small Cause Court cannot adjudicate finally, but only inci-dentally on a question of title in consequence of section 19 of thePresidency Small Cause Courts Act (Act XV. of 1882) whichexcludes from .the jurisdiction of a Small Cause Court suits for therecovery or partition of immovable property or for the foreclosureor redemption of a mortgage of immovable property or for thedetermination of any other right to or interest in immovable-property.
August 23, 1929. Fisher C.J.—
In this case the plaintiff after setting out in the plaint his title tocertain land, which is admittedly of the value of over Rs. 300, andafter stating that the defendant forcibly entered the land and cutand removed five jak trees prayed for judgment against the defendantfor Rs. 150 as damages.
The defendant in his answer admitted having cut the trees, butdenied that the plaintiff was entitled to the land. By way ofdefence he said that the land in question had been given to him onhis marriage and that he and his wife had been in sole and undis-turbed possession for about twenty-five years, and pleaded thebenefit of section 3 of Ordinance No. 22 of 1871, but he made noclaim in reconvention on that basis.
The question referred to us for decision is whether the Court ofRequests had jurisdiction to hear the action. The jurisdiction of aCourt of Requests in cases in which* a question with regard to landof the value of over Rs. 300 is raised has been the subject-matter of several conflicting decisions by this Court. The last tworeported cases on the point are Rasiak Joseph v. Punchi AppuHdmy3and Wtchremeimyoke v. Edifisingha.3 In the former case the plaintiffsued for Rs. 225 in respect of loss and damage caused by the cuttingdown and removal of seventy-five trees by the defendant. Thedefence raised was that the land upon which the trees stood was not theproperty of the plaintiff, but was temple land of which the defendantwas tenant and caretaker. Lyall Grant J. in holding that theCourt of Requests had jurisdiction to try the case said “ The merefact that incidentally the Court may, have to go into matters-whichinvolve disputes relating to lands and interests beyond the; juris-diction of the Court does not seem to me to be a sufficient reasonfor saying that the Court shall not determine a claim which isclearly .within its jurisdiction.
1 (1926) 5 Times L. R. 46.2 29 N. L. R. 159.
3 30 N. L. R. 158.
( 155 )
In Wickremenayake v. Edirmngha, {supra) the claim was for a sumof less than Rs. 300 as damages for wrongful possession of landadmittedly of the value of more than Rs. 300. The plaint set outthe title of the plaintiff to the land. The defendant in his answer,in the words of Schneider JM “ Denied in specific terms the plaintiff’stitle and ouster and in effect asserted that the land described inthe plaint was his and possessed by him as such. '* Schneider J.held that the Court of Requests had no jurisdiction, and in thecourse of his judgment said: “Before the Court can determinethat the plaintiff is entitled to claim any damages' it must decidethe issue whether the plaintiff is the owner of the land. Thequestion of title is a substantive issue in the action. It is incidentalin one sense, in that the plaintiff’s prayer is only for damages,but it is nevertheless an issue. M
Section 77 of the Courts Ordinance, 1889, invests a Court ofRequests with jurisdiction to hear and determine—
(а)All actions in which the debt, damage, or demand does not
exceed Rs. 300 subject to certain conditions as to residenceand to place of origin of the cause of action;
(б)All hypothecary actions in which the amount claimed does
not exceed Rs. 300 subject to a condition as to thesituation of the land charged;.
All actions in which the title to, interest in, or right to the
possession of any land shall be in dispute; and
AH actions for the partition or sale of land.
Then follows a proviso “ that the value of the land or theparticular share, right, or interest n dispute or to be partitionedor sold, shall not exceed Rs. 300. *’ In my opinion the provisoonly qualifies the jurisdiction in the actions included in (c) and (d).The qualification of jurisdiction based on value in actions includedin (a) and (6) has already been provided for. I think that thisview is supported by the terms of section 81, with which I will deallater.
In the case before us the prayer of the plaintiff is to recoverRs. 150 damages. That is the object of the action which being onein which “ the debt, damage, or demand does not exceed Rs. 300 ”was in its- origin an action within the jurisdiction of the Court.
It is contended, however, that owing to the assertion of title inthe plaint and .the denial by the defendant of that title and theassertion of the title of himself .and his wife in the answer theaction became one which was beyond the jurisdiction of the Court,inasmuch as it became an action in which “ the value of the landin dispute “ was over Rs. 300. That contention involves a con-sideration of section 81 which, so far as one can judge by the reports,was not put before the Courts for consideration when the question
Fisheb C.J.
Heen Banda
( 156 )
Fishbr C.J.Hem Banda
of jurisdiction was considered on previous occasions. The section,in so far as it is material to set it out, runs as follows: —
'* 81 Where in any proceeding before any Court of Bequestsany defence or claim in reconvention of the defendantinvolves matter beyond the jurisdiction of the Court,such defence or claim in reconvention shall not effectthe competence or duty of the Court to dispose of thematter in controversy so far as relates to the demand ofthe plaintiff and the defence thereto, but no relief exceedingthat which the Court has jurisdiction to administer shallbe given to the defendant upon any such claim in recon-vention: Provided always that in such case it shall belawful for the Supreme Court or any Judge thereof, if itshall be thought fit, on* the application of any party to theproceeding, to order .that the whole proceeding be trans-ferred from the Court in which it shall have been. instituted to some Court having jurisdiction over the wholematter in controversy …
There was no claim in reconvention in the present case and weare therefore concerned only with what was stated by the defendantin his answer as a defence. Such a defence, in my opinion, does notbring into operation the proviso in section 77 which I have set outabove. The meaning of the first part of section 81 is, in my opinion,that where a defence is raised which involves consideration of aquestion which could not be made the direct subject-matter of aprayer for relief by the Court, the Court can deal with and decidethe question for the purpose of deciding whether the plaintiff isentitled to the relief he claims. That is the situation in this case,and it is a situation with which in my view the section directly andexpressly deals.
It is unnecessary to decide the question, on which we had aconsiderable amount of argument, whether the decision of a Judgeof the Court of Bequests in a case like the present case would operateas res judicata should the defendant bring an action against theplaintiff to vindicate title. The section, however, provides anopportunity for a defendant in such a case who has a bona fidebelief in his title and desires to assert it and claim the benefit of itto take steps to have the question decided by a competent Court.
In my opinion the Court of Jtequest$ is competent to .try thisaction and the appeal must be dismissed with costs.
Drieberg J.—I agree.
Maartbnsz A.J.—I agree.
Appeal dismissed.