148-NLR-NLR-V-41-JAYASUNDERA-v.-ANDRIS-et-al.pdf
569
HOWARD CJ.—Jay asunder a v. Andris.
1940Present: Howard C.J.
JAYASUNDERA v. ANDRIS et al.
190—C. R. Galle, 18,956.
Res-judicata—Partition action—Claim by defendant to defined lot—Dismissalof action—Subsequent suit by defendant.
Where a partition action was dismissed on the ground that the defend-ant had acquired title to a defined lot as against another defendant tothe action and where the defendant subsequently brought an action tovindicate title to that lot against that other defendant.
Held, that the decision in the partition action operated as res judicata.Saram Appuhami v. Martinahamy (12 N. L. R. 102) followed.
^JPPEAL from a judgment of the Commissioner of Requests, Galle.
N. E. Weerasooria, K.C. (with him H. A. Chandrasena) for theplaintiff, appellant.
E. B. Wikremanayake (with him S. Mahadeva), for the defendant,respondent.
Cur. adv. vult.
June 20, 1940. Howard C.J.—
This is an appeal by the plaintiff from a decision of the Court ofRequests, Galle, dated June 26, 1939, holding that the plaintiff isentitled to one quarter of lot purchased on document P 6 and to the rubberplantation whilst his claim in excess was dismissed with costs. The
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' HOWARD C.J.—Jayasundera v. Andris.
appellant contends that the learned Commissioner was wrong in rejectinghis plea that the matter was res judicata by reason of the decision in aconnected case D. C. 35,553. Case D. C. No. 35,593 was an action forpartition of an extent of land of which the land to which the plaintiffclaimed title in this action, that is to say lot 9 in plan marked P 1, formedpart. The plaintiff’s action in D. C. No. 35,553 was dismissed with costs,the Court holding that the parties who claimed specific blocks had beenin possession of those specific blocks for a period exceeding 10 years before ■the institution of the case. In that case the first defendant in this casejoined with the plaintiff in asking for the partition of the land and wasthe seventeenth defendant. The plaintiff in this case who was theeighteenth defendant in D. C. No. 35,553, claims title to lot 9 as havingbeen possessed exclusively by him against all parties who alleged andclaimed common possession. The plaintiff by deed established his titleto a nineteen-twentieth share of the said land by right of purchase. Heclaims he has made plantations of rubber and coconut thereon and hasbeen in possession of the entirety thereof for a period of over 27 years.With regard to the plea of res judicata the following passage from thejudgment of the District Judge in D. C. No. 35,553 is in point: —
“ The 18th defendant ” (i.e., the plaintiff in this case) “ has beenacquiring rights in lot 9 on different deeds from various parties andhas been in possession of this lot for several years. He has no right inthe rest of the land. There is some dispute between him and 17thdefendant which need not be considered. One fact is clear, viz., thatlot 9 has been possessed as a separate entity all along by the 18thdefendant and his predecessors for a period exceeding 10 years andthese people did not claim any share from the remaining portion of theland.”
And at the end of the judgment the learned Judge states : —
“ It is unnecessary to decide the dispute about the house and certainplantation. This should be incorporated in the decree.”
In the Surveyor’s report in D. C. No. 35,553 it is stated that the seven-teenth defendant, i.e., the first defendant in this case, claimed one-fourthshare of the entire land surveyed. With regard to the plantations onlot 9 it was stated as follows : —
“ 5 coconut trees, 30 to 35 years ; 18 rubbertrees, 10 to 12 years ; 11 jak trees, 30 to 35years
fP/S to 17th defendantIand disputed and
Iclaimed by A. C.
^ Jayasundera.
The learned Commissioner has held that, as the learned Judge ig hisjudgment in D. C. No. 35,553 stated that the dispute between the plaintiffand the seventeenth defendant need not be considered, he is unable tohold that the finding in D. C. No. 35,553 was res judicata. It is necessary,however, to scrutinize the judgment somewhat more closely to see exactlywhat the learned Judge intended when he used the words “ some dispute ”.fn this connection the following issues were framed in D. C. No. 35,553 : —' “Who is entitled to the disputed plantation on lot 9—the 17thdefendant or the 18th defendant ? ”>
“ Is the 18th defendant exclusively entitled to the entirety of lot 9 ? ”
HOWARD C.J.—Jay asunder a v. Andris.
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In these circumstances I do not see how it can be said that the questionof the title to lot 9 was not raised and decided in this case. “ Somedispute” which need not be considered must be taken to refer to the“ dispute ” about the “ certain plantation ” which, in the closing words.of the judgment of the District Judge, he held it was unnecessary todecide. In this action, however, the defendant in his answer to theplaintiffs claim has not maintained his claim to the rubber plantation.
therefore, hold that the plaintiffs claim to the entirety of lot 9 wasdecided in D. C. No. 35,553. That, however, is not the end of the matteras it does not from such a finding of necessity follow that the matter isres judicata so far as this action is concerned. – In Senaratne v. Perera cited with approval by Moseley. A.C.J, in Fernando v. FernandoJayewardene A.J. expressed himself as follows : —
“ In my opinion formed after a careful examination of the authorities
on the subject, the principle that a decisionis not res judiqata between
co-defendants is subject to two exceptions:
(a) When a plaintiff cannot obtain the relief he claims without anadjudication between the defendants and such an adjudicationis made, not only between plaintiff and the defendants, butalso between the defendants.
<b) When adverse claims are set up by the defendants to an action,the Court may adjudicate upon the claims of such defendantsamong themselves, and such adjudication will be res judicatabetween adversary defendants as well as between the plaintiffand the defendants.
Provided that in either case the real rights and obligations of the
defendants inter se have been defined in the judgment.”
The principles governing the application of the rule of res judicata wasalso set out by Sir George Lowndes in Mt. Munni Bibi and another v. TirlokiNath and others. * The three conditions which the Board adopted as thecorrect criterion are as follows : —
There must be a conflict of interest between the defendants
concerned ;
It must be necessary to decide this conflict in order to give the
plaintiff the relief he claims ; and
The question between the defendants must have been finally
decided.
There seems to be some inconsistency between the criterion as formu-lated by Sir George Lowndes and the principle expounded byJayawardene A.J. in Senaratne v. Perera inasmuch as according to SirGeorge Lowndes it is a condition precedent to the application of the ruleof res judicata that it must be necessary to decide the conflict between thedefendants to give the plaintiff the relief he claims. The rule as stated byJayawardene A.J. does not, however, in his exception (2) include such a• 26 iV. L. if. 225.* dl N. L. if. 20S.
3 A. 1. if. 1931, P. C. lid.
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HOWARD C.J.—Jayasundera v. Andris.
condition precedent. For the following reason, however, I do not thinkit is necessary for the decision of this case to decide whether the principlelaid down by Jayewardene A.J. is correctly stated. D. C. No. 35,553was an action for partition. It was held in Saram Appuhamy v. Martina-hamithat when a partition suit was dismissed on the ground that thedefendant had acquired title by prescription and when the defendantsubsequently brought an action to vindicate his title to the land pleadingthe judgment in the partition suit as res judicata, the judgment in thepartition suit operated as res judicata and prevented the parties fromraising the question of title again. In the course of his judgment in thecase Wendt J. stated as follows : —
“ Now it is trite law that in a partition action the plaintiffs (and eachparty is practically plaintiff in respect of the interest he claims) mustprove not only their common ownership inter se, but also a good titleas against all others, because the effect of a decree of partition is toconfer an absolute title.”
In regard to the question of title to lot 9, the plaintiff in D. C No. 35,553and the present first defendant really occupied the position of co-plaintiffsin relation to the present plaintiff. For these reasons I am of opinionthat the appeal must be allowed and judgment entered for the plaintiff asprayed for except that damages are awarded at Rs. 20 a year till theplaintiff is restored to possession. Although plaintiff claimed Rs. 150per annum in his plaint, his evidence is that he could have obtained anincome of Rs. 20 per annum only. The plaintiff is allowed his costs inthis Court and the Court below.
Appeal allowed. 1
1 12 A' K. 102.