100-NLR-NLR-V-14-JAYEWEERA-v.-EDO-APPU-et-al.pdf
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June 12,1911
Present: Wood Renton J.
JAYEWEERA v. EDO APPU et al117—C. R. Kalutara, 5,555.
Ree judicata—Action for declaration of tide and damages—Disclaimerof tide by defendant—First action dismissed—Second action fordeclaration of title.
The plaintiff sued the defendant in C. R. Kalutara, No. 5,412,for declaration of title to the land in dispute and damages. Thedefendants admitted the plaintiff’s title; no issue as to title wasframed, and the case went to trial solely on the question whetheror not the defendants were cultivating under the plaintiff anyportion of the land. The plaintiff’s action was dismissed. Subse-quently the plaintiff brought the present action against thedefendants for a declaration of title to the same land. Thedefendants set up a plea of res judicata.
Held, that the plea was bad. Esan Appuhamy v. LouisAppuhamy1 over-ruled.
T
HE facts are set out in the following judgment of the Com*missioner of Requests (T. B. Russell, Esq.) :—
I think that the plaintiff is precluded from bringing this action byreason of the result of the previous action brought by him in connectionwith the same land. That case is before me. It was an action between •the present plaintiff and the present first defendant as sole defendant
1 {1907) 3 Bed, 236.
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Plaintiff in that oase complained that he had given defendant a portionof liis field towards the cast to cultivate,, but that defendant, allegingtitle to the portion, had appropriated the whole produce to himself.He prayed that he might be declared entitled to the land and givendamages jor the defendant’s illegal action.
Defendant answered by denying that he ever claimed title to theplaintiff’s field, and asserting that the field which he cultivated boroanother name, and was the property of the present second and thirddefendants, who are his sons.
June 12,1911
Jayeweera v.Edo Appu
The issues framed were :—
Did defendant cultivate four pelas of plaintiff’s field ?
Did he agree to give eight bags as ground rent, and if not,
what damages 1
Mr.- Orr maintains that these issues, taken along with the defendant’sdenial that he ever claimed any portion of the plaintiff’s field, showthat the action was decided, not as an action for title, but simply asone for rent. But this is clearly not so. The important question wasundoubtedly whether the portion of land cultivated by the defendantcame within the plaintiff’s land. The evidence recorded in the case, andespecially the Judge’s judgment, show this to be so. In his judgment:“ The evidence which has been placed before me is so unsatisfactoryand unconvincing that I am not satisfied that defendant cultivatedany portion at all, either within the boundaries of the land claimed bythe plaintiff or adjoining it on the outside,” and so dismissed the case.The case was in every way a land case, in which the plaintiff claimedtitle to a portion of land cultivated by the defendant, and defendantdenied that title. The subject of dispute is now made clear by a planof survey put in by the plaintiff, which he has had made for the presentcase. Lot B is the land in dispute now, as it admittedly was in theprevious case. If this survey had been produced in the previous case,it would have had the result of making the case much clearer, but itobviously would not have changed the character of the case in anyway. Instead of the issue, “ Did defendant cultivate four pelas ofplaintiff’s field ? ” the issue would have run in this way : “ Admittingthat defendant cultivated four pelas of field in lot B in the plan, doesthat lot form part of'the plaintiff’s field C ? ” What plaintiff seems tome to be now attempting to do is to re-open the decree in the previouscase, hoping to get it reversed on the strength of the new evidence of thesurvey plan. This evidence might, however, have been produced in theprevious case. On the ground, therefore, that all yie issues of thepresent case, might have been raised in the previous case, and were toall practical intents and purposes so raised, I hold that plaintiff isprevented from bringing this action. His action is accordingly dismissedwith costs.
Garvin, C.C., for substituted plaintiff, appellant.
A. St. V. Jayewardene, for defendants, respondents.
Cur. adv. vult.
June 12,1911. Wood Renton J.—
In this case the original plaintiff, who is now dead, sued thedefendants-respondents for a declaration of title to a portion of
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June 12,1911 land called Midigahawella, alleging that the respondents hadWood disputed her title thereto, although they had originally entered onBenton J. the land by the plaintiff’s permission. In their answer theJayeweera v. defendants-respondents denied the plaintiff’s title, and set up am<> Appu 0f res judicata by virtue of the judgment of the Court ofRequests of Kalutara in case No. 5,412 of that Court. The learnedCommissioner of Requests upheld that plea, and dismissed theplaintiff’s action. Against that decision the substituted plaintiffhas appealed. I venture to think that the Commissioner of Requestshas come to a wrong conclusion in regard to the plea of res judicata.It is quite true that the plaintiff in case No. 5,412, who was theoriginal plaintiff in the present action, claimed a declaration oftitle to the land there in suit, which is also in suit here. At thesame time in that case the defendant admitted the plaintiff’s title.Under those circumstances no issue as to title was framed, andthe case was decided solely on the question whether or not therewas sufficient evidence that the defendant had been cultivatingunder the plaintiff any portion of the land. In the present case,not only is a declaration of title claimed, but the plaintiff’s title isdenied. Under these circumstances, I do not think that any pineof res judicata can be successfully set up. Mr. A- St. V. Jayewardenereferred me to the cases of Ibrahim Baay, v. Abdul Rahim1 and EsanAppuhamy v. Louis Appuhamy? The former of those cases canhave no application to C. R. Kalutara, No. 5,412, inasmuch as thedefendant denied the plaintiff’s title, and set up title in himself.The latter is a decision of my own. The plaintiff had brought anaction for declaration of title to a share of land. The defendantsadmitted the plaintiff’s title in part, but as the plaintiff had failedto comply with an order of Court to bring in other co-owners asadded parties, his action was dismissed, and his application towithdraw the action with liberty to bring a fresh suit was refused.I held that the plaintiff or his successors in title could not vindicatein a fresh suit even the portion of land which the defendants hadadmitted to be the plaintiff’s in the previous suit. In support ofthe appeal, Mr. de Sampayo had argued that the admitted shareshad never really been in issue between the parties within themeaning of the explanation to section 207 of the Civil ProcedureCode, and that accordingly the decree as regards them could notoperate as res judicata. I dealt with this argument as follows :“ It appears to me that this construction is disposed of by thelanguage of the explanation itself. The claim to these shares wasa right of property capable of being put in issue, and the decree is,therefore, conclusive as regards it, whether it was actually claimed,set up, or put in issue in the action or not.” On reconsideration, Ido not think that the meaning which I put on the explanation tosection 207 of the Civil Procedure Code in Esan Appuhamy r. Louis
>(1909) 12 N. L. R. 117.i 1901) 3 Bal. 236.
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Appuhamy1 was right, and I am not prepared to, follow that decisionnow. On the facts, as they existed in that case, an issue as regardsthe plaintiff’s title to the admitted shares could not well have beenframed, and that being so, I do not think that the title to thoseshares can be said to have been capable of being put in issue in thataction. If my memory serves me aright, the decision in EsanAppuhamy v. Louis Appuhamy1 was doubted by Mr; Justice Wendton the same ground. I set aside the decree of the Court of Requestsand send the case back for trial there. As regards the costs of theprevious hearing on May 26, at which the case could not be arguedowing to the absence of the record in C. R. Kalutara, No. 5,412,I have read the letter of the learned Commissioner of Requests,dated June 7, 1911. But I still think that it was the primaryduty of the appellant’s proctor, although no doubt a secondaryduty of the same kind rested on the proctor for the respondents,to have taken steps to see that the Court of Requests record wasforwarded to the Supreme Court in time for the argument of theappeal when it was listed. Under these circumstances, there willbe no costs of the previous hearing to either side. The costs of thesecond argument, which was the real argument on the appeal, willgo to the appellant in any event, as well as the costs of the argumentin the Court of Requests on the plea of res judicata. All other costswill be costs in the cause.
June 12,mi
WoodRenton J.
Jayeweera v.Edo Appu
Sent back.