047-NLR-NLR-V-12-IBRAHIM-BAAY-et-al.-v.-ABDUL-RAHIM.pdf
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Present: Mr. Justice Wendt and Mr. Justice Middleton.IBRAHIM BAAYef al. v. ABDUL RAHIM.
0. C., GaUe, 8,577.
Res judicata—Action for . rent—Denial of title—Subsequent action tovindicate title—Bar by res judicata—Civil Procedure Code, ss. 34,207, and 406.
The plaintiffs sued the defendant in C. R., GaUe, 8,405, for rent ofcertain premises, averring that the defendant had held over the saidpremises upon a tenancy created by the plaintiffs. . The defendantdenied the plaintiffs’ title, and set up- title in himself. No issueas to title was framed ; but the Commissioner dismissed the plain-tiffs’ action, on the ground that no tenancy was proved. Theplaintiffs then brought this action in the District Court to vindicatetitle to the premises.
Held, that the previous judgment would be a bar to the presentaction, if the Court of Requests had jurisdiction to entertain theprevious action.*
Middleton J.—The cause of action is the same in both cases,viz., the alleged wrongful detention of the premises by the defend-ant;'and it is obligator on a plaintiff, under section 207 of theCivil Procedure Code, to set up on his cause of action every rightof property he alleges he possesses.
A
CTION ret vindicatio. Appeal by the defendant from a judg-ment of the District Judge. 'Die facts sufficiently appear in
the judgment.
Tambiah (with him A..Driebcrg), for the defendant, appellant.
Cur. adv. mdt.
1909.June 4.
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1909. ' June 4, 1909. Middletoh J.—
r<me*‘ The question in this case is whether a decree passed in C. R.,Galle, 8,405, in which the parties to this action occupied the samepositions, is res adjvdicata of the question sought to be decided inthe present action.
To constitute a valid estoppel by judgment in personam underEnglish Law, I think I am right in saying that the judgment reliedon must be given by a court of competent jurisdiction, must bebetween the same parties or their privies, must be for the same causeof action, must have comprised a finding on the same question, andthe question must have been directly in point in the former case;but such estoppel will also be valid by our Ceylon procedure lawwhere there was an omission or relinquishment of any part of theclaim which the plaintiff was entitled to make in respect of thesame cause of action as regards such part of the claim, or wherethere was an omission of a remedy which might have been claimedwithout the leave of the Court as regards such remedy (section 34,Civil Procedure Code); and where any right of property or relief ofany kind which could have been set up on the cause of action forwhich the action was brought was not set up as regards such right,or relief not so set up (section 207, ubi supra), or where an actionhas been withdrawn without the leave of the Court (section 406,ubi supra).
In action C. R., Galle, 8,405, the present plaintiffs sued the presentdefendant for rent of certain premises bearing assessment number199, which it was alleged the defendant had held over upon atenancy granted by the plaintiffs. The defendant denied in hisanswer that he had held over the premises, but averred that he wasthe owner of premises bearing assessment No. 199 a standing onthe land in question, together with the soil covered by the premises.The plaintiffs’ claim was apparently intended to cover both thepremises 199 and what the defendant called 199 a.
The issues framed were :—
Was the defendant a tenant of the plaintiffs from February
24, 1904, to February 24, 1905 ?
Has defendant had use and occupation of the premises
since February 24, 1905 ?
What would be a reasonable amount for such use and
occupation ?
What anlount is due ?
Is house 199 different from the house 199 A ?
No issue was actually settled as to the defendant’s claim of rightto 199 a, and the plaintiffs’ cause of action was for holding over199 a as a part of an entirety, including both 199 and 199 a.
The Commissioner of Requests held that the defendant was atenant of 199 but not of 199 a, that he had not held over, and that
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139 and 199 a were two separate premises, and dismissed theplaintiffs’ action. The Commissioner Of Bequests therefore decidedthat 199 a was not a part of the plaintiffs’ property comprisedin 199, and practically gave judgment in the defendant’s favourfor 199 a.
In that action it was obligatory on the plaintiffs, under section207 of the Civil Procedure Code, on their cause of action, to set upany right of property they alleged they possessed to the premises199 a, but the only title they apparently put forward was thattheir title to 199 included the premises 199 a. The answer of thedefendant very clearly indicates a claim of title to. 199 a by thedefendant, and it was therefore incumbent on the plaintiffs whoasserted the possession of the defendant to prove their title to 199 aif they desired to succeed. 1 think therefore it is not quite correctto say, as the learned District Judge says in the judgment underconsideration, that the question of title was not in issue in C. R.,Galle, 8,405. Their title to 199 a was not specifically made anissue but was in issue, and must have been decided by the findingof the Commissioner of Requests when he held that 199 and 199 awere separate premises. The judgment of my brother Wendt,with which I entirely agree, in Bohan Appu o. Ounawardene et dl.,1very clearly depicts the stringency of section 207 of the CivilProcedure Code.
InC. R,, Galle, 8,405, the plaintiffs did set up a right of property in,or title to, 199 a upon the cause of action for which the action wasbrought, which was traversed in the answer; and if they neglectedto prove it, or any other right they had in it than the one set out,the right becomes a res adjudicata, which cannot be made thesubject of action for the same cause of action between the sameparties. All this assumes that the Court of Requests had jurisdictionon the ground of value to hear the action, and that the cause of actionin both Courts was the same,
The plaint in the District Court was for a declaration of title to,and ejectment from, a portion of the premises atfe’gecf'i^’th^.Courtof Requests case to have been leased to the- defendant,-ind areclearly identifiable as the'preinises 199 a as to which judgment wasgiven in the Court of Requests. The answer pleads the decree ofthe Court of Requests in bar of the claim. The District Judge saysin his judgment that the defendant says the value of the soil andhouse on C in the plan which represents 199 a is Rs: 300.
The action in the Court of Requests as laid, by the plaintiffsinvolved the inclusion of 199 a in 199, and thus a claim to rent ona property the combined value of which must have exceededRs. 300 in the aggregate. The claim was for rent and holding over199 a, and the amount did not apparently exceed the Court’s juris-diction. The defendant raised the question of title and so made1 (1907) 10 N. L. R. 167.
mo.
Junf4.
Middleton
J.
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1900.June 4.
Middleton
J.
(he action a dispute as to the ownership of a part of the land, whichtherefore may have been beyond the jurisdiction of the Court ofBequests.
It might be argued that the causes of action were different in thetwo Courts, i.e., that the oause of action in the District Court was anassertion of title by the defendant to 199 a, while in the Court ofBequests the oause of action was for non-payment of rent for allegedholding over of premises, the entirety of which the plaintiff assumedhe had let to the defendant; that in the Court of Bequests case thecause of action was the refusal to fulfil'an obligation, while in the-District Court it was the denial of a right. I think, however, thatthe cause of action was the same in both cases, i.e., the allegedwrongful detention of the premises, but that the Court decidingthe question may not have been competent to do so on the groundof value.
In my opinion, therefore, the case must go back for the ascertain-ment of the value of 199 a, and if it is proved that such value exceedsBs. 300, then the decision of the District Judge will stand, and thecase go for trial unbarred by the defence of res adjvdicata. If thevalue prove to be less than Rs. 300, then the defence of res adjudicatawill hold good, and the appeal be allowed, and the action be dismissedwith costs in both Courts. In the first alternative the appellant willhave the costs of this appeal, and other costs incurred will be costsin the cause.
Wendt J.—I agree.
Appeal allowed; ease remitted.
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