028-NLR-NLR-V-18-KALUHAMY-et-al.-v.-APPUHAMY-et-al.pdf
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Present: Pereira J. and Ennis J.KALUHAMY et al. v. APPUHAMY et el.380—D. C. Tangalla, 1,347.
1914.
One action in respect of two or more distinct m parcels of land—CivilProcedure Code, s. 86.
Onecasemay be maintained bythesame plaintiff against the
same defendant in respect of two or more separate and distinctparcels of land.
If in such a case the Court finds it inconvenient to dispose of _ allthe causes of action together, it shotdd not dismiss the plaintiffsclaim,but make order for separatetrialsin terms of section 86 of
the Civil Procedure Code.
*
A
CTION fordeclaration of title.Thefacts, appear from the
following judgment of the District Judge (F. D. Penes, Esqr.):—
TTpon the second issue raised in this case, it appears to me that theplaintiffs’ caseas at presentinstituted cannotbemaintained.Allthe
documents filed by the plaintiff, including the list of lands advertisedfor sale or settlement by the Crown, show very clearly that the twolands. Jnlgahawattaand Dunwattupittaniya,havethroughout been
treated bybothBabehamy and Matheshamy,and also by the Crown,
as two distinct and separate lands, although lying adjoining each other.The plaintiffs*ownwitnesses speakofthem astwoseparatelands,
although they havebeen dealt withbyBabehamyandMatheshamy in
one deed. Babehamyoriginally purchased them from different owners,
and has always ^ in his transactions treated them as two lands, givingthem separatenumbers andseparate boundariesineach oneofthe
documents produced. It is therefore not possible in the present suit,merely becausetheplaintiff claims themupon onedocument (P9), to
treat them asone land. Even after the matterwasraised inissueby
the defendants*proctor the plaintiffhasnot applied toCourt,electing
to proceed totrial, confininghis case to eitherofthe lands.Inthe
circumstances, I can only answer the second issue in the affirmative.This finding prevents the necessity for proceeding to answer the otherissues raised in the case
The seeond issue was as follows: Is there a misjoinder of causesof action ?
Bartholomeusz, for plaintiff, appellant.
L. H. de Alwis, for defendant, respondent.
Cur. adv. vidt.
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1914. November 17, 1914. Pereira. J.—
Ka$uhamy p. xhe District Judge in bis judgment proceeds on the assumptionAppuhamy one case cannot be instituted by the same plaintiff against thesame defendant in respect of two separate'and distinct parcels ofland. He is in error here. It has been suggested that he relies onsection 85 of the Civil Procedure Code. If so, I need only say thatwhat that section means is that in an action for the recovery ofimmovable property no other claim (that is to say, no furtherclaim other than one in respect of immovable property) shall bemade, except, &c. Under section 86 it is open to a plaintiff tounite in the same action several causes of action against the samedefendant. Such a course may lead to embarrassing results; butthe remedy is not the dismissal of the action, but it is that laid downin the second paragraph of section 36. The Court may either directseparate trials in the same action, or refer the plaintiff to a separateaction in respect of one or more of the causes of action declaredupon, and proceed in the action already before the Court to dealwith the rest; that is, of course, if, in fact, all the causes of actioncannot be conveniently disposed of together.
I would set aside the order appealed from with costs, and remitthe case to the Court below for proceedings in due course.
Ennis J.—I agree.
Set aside.