MOHAMMADO CASSIM, Appellant, and MAHMOOD LEBBE et al., Respondents

001-NLR-NLR-V-53-MOHAMMADO-CASSIM-Appellant-and-MAHMOOD-LEBBE-et-al.-Respondents.pdf


THE
NEW LAW REPORTS OF CEYLONVOLUME LIU
1951
Present: Gratiaen J. and Gunasekara J.MOHAMMAD0 OASSIM, Appellant, and MAHMOOD LEBBE
et al., Respondents
S.C. 436—D. C. Handy, 2,610
Bes judicata—Actio rei vindicatio brought against one of two co-owners—Otherco-owner not joined as party—De'oree does not bind latter.
Sale of land—Actio de eviction©—Is prior judicial eviction necessary t
A decree operates as res judicata as between the parties only or those claimingthrough them. This restriction does not extend to other persons whoseinterest is almost identical. with that of one of the parties to the first suit ifthey do not actually claim through such a party.
A vendee must have suffered eviction by judicial process before he can suehis vendor for damages for breach of warranty against eviction. He cannotavail himself of the judicial eviction of a co-vendee.
./APPEAL from a judgment of the District Court, Kandy.
The 1st and 2nd plaintiffs jointly purchased from the defendant acertain land. Some months later two persons successfully sued the1st plaintiff (but not the 2nd plaintiff) for a declaration that they werethe .lawful owners of a portion of the property. The 1st plaintiff wasejected under that decree. The plaintiffs thereupon jointly sued thedefendant in the present action for damages for breach of his covenantto guarantee them against eviction.
X. E. Weerasooria, K.C. with H. W. Tambiah and J. W. Subastnghe,for the defendant appellant.—The judgment of the District Judge, inso far as it affected the rights of the 1st plaintiff to sue and claim damageson the sale, cannot be challenged. But the judge was wrong in decreeingthe return of the consideration paid in respect of the half share of the2nd plaintiff who had suffered no judicial eviction. In the earlieraction only the 1st plaintiff was made defendant and the decree was -against 1st plaintiff only. The 2nd plaintiff was no party and his rightswere not adjudicated upon and he was not bound by the decree in thataction. Therefore no cause of action secured to the 2nd plaintiff tosue the defendant on* the sale. To succeed in an actio de evictione theremust be proof of an eviction by due process of law—Voet: 21.2.1 ;AlagiawannU v. Don Hendrick James v. Suppa Umma 3; Ramdlingam-Chettiar v. Mohamed Adjoowad s; Chellappa v. McHeyzer * [Counselwas stopped.]
(1910) 13 N. X. R. 225.
• (1915) 17 N. X. R- 33.
I—LTTT
J. H. B 69182—501 C10/57)
(1939) 41 N. X. R. 49.
(1937) 38 N. X. R. 393.
2
GHATIAEN J.—Mohainmado Cassim v. Mahmood Lebbe
C. Thiagalingam, K.C., with V. Arulambalam, for the plaintiffsrespondents.—Although 2nd plaintiff was not a party in the earlieraction he was still bound by the decree. Section 207 of the Civil Pro-cedure Code is not exhaustive of the law of res judicata—Dingiri Menikav. Punchi Mahatmaya1. As to what i6 meant by “ parties ” see SpencerBower : “ Res Judicata ”,1924 ed. pp. 126-128. Party ” means
not only a person acknowledged as such but also a person cognizant-of the proceedings. The question whether an absent party is boundby an earlier decree is a mixed question of fact and law—Wytcherly v.Andrews 2. In the present case the evidence given by the defendant-makes it clear that the earlier case was fought not only by the 1stplaintiff but also by his brother the 2nd plaintiff. -On the questionwhether a judgment against one co-purchaser is “ res judicata ” againstanother co-purchaser, see Lingangowda Dod-Basangowda Patil v. Basan-gowda Bistangowda Patil 3 and Gh. Gut Narayan v. Sheolal Singh *.
In the second place, it is submitted that where the vendor warrantsthat he has good title to the property the evendee need only prove thatthe vendor had not good title. Judicial eviction is not necessary in thepresent case. Jamis v. Suppa XJmma (supra) and Chellappa v.McHeyzer (supra) are not applicable to the facts of the present case.[Counsel cited Ramalingam Chettiar v. Mohamed Adjoowad 5; Maasdorp:Institutes of South African "Law, 1913 ed., Vol. 3, p. 165, Nathan:Common Law of South Africa, Vol. 3, p. 757; Berwick’s Voet, p. 173.]
Judicial eviction is not mere physical eviction. It need not be dis-possession by order of Court. The certainty of eviction by a Court ofLaw is sufficient to constitute judicial eviction.
[Counsel cited Norman’s Purchase and Sale in South Africa, 2nd ed.,p. 301.]
N, E. Weerasooria, K.C., in reply.—The basis on which 2nd plaintiffcame into court must be considered. The plaintiff clearly shows that hecame into court on the basis of a judicial eviction. The definition inVoet : 21.2.1 is clear. “ Eviction is the recovery by judicial process ofour property which the opponent has acquired by iustus tit ulus.
Cur. adv. vult.
June 20, 1951. Gratiaen J.—
On 26th March, 1943, plaintiffs, who are brothers, jointly purchasedfrom the defendant a land called Gurugama Kumbura for a considerationof Rs. 3,000. The transaction was admittedly implemented by theplaintiffs being placed in possession of the property, and, by arrange-ment between the brothers, the 1st plaintiff occupied the property fortheir joint benefit. Six months later, however, two ‘ persons namedRabiya -Umma and Mohamed Lebbe successfully sued the 1st plaintiff(but not the 2nd plaintiff) in D. C., Kandy, No. L. 1,116, for a declarationthat they were the lawful owners of a portion of the property. The
1 (1910) 13 N. L. R. 59.» A. I. R. (1927) P. C. 56.
* (1871) L. R. 2 P. and M. 327.* A. I. R. (1918) P. C. 140.
5 (1939) 41 N. L. R. 49.
GRATIAEN J.—Mohammado Cassim c. Mahmood Lebbe
3
1st plaintiff unsuccessfully contested the action, having given due-notice to the defendant to warrant and defend the title conveyed tohim. Degree was in due cause entered against the '1st plaintiff declar-ing Babiya Umma and Mohamed Lebbe entitled to the extent indispute. He was also condemned in damages and costs. The 1st plain-tiff was ejected under .this decree. The 2nd plaintiff was not a partyto that action and his interests in the disputed extent, though preciselysimilar to those of his brother, were not adjudicated upon. Sincethe date of this decree both plaintiffs have in fact enjoyed possession ofonly that part of the' property conveyed to them which was not affectedby the decision in favour of the successful parties in D. C., Kandy,
1,116.
The' plaintiffs have jointly sued the defendant in the present actionfor damages for a breach of his express covenant under the deed of con-veyance to guarantee them against eviction from the property. Thiscovenant is not a warranty of title but is in effect only an express warrantyagainst eviction which is normally implied in contracts for the sale of land.After trial the learned District Judge entered judgment in favour of bothplaintiffs for the sum of Bs. 2,051. Of this sum Bs. 1,222.35 representsthe value of the joint interests of the plaintiffs in the extent which is nowin the possession of Babiya Umma and Mohamed Lebbe. The additionalsum awarded represents the damages awarded against the 1st plaintiffand the costs incurred by him in the earlier action.
Mr. Weerasuriya, who argued the defendant’s appeal, conceded thatthe judgment, in so far as it affected the interests of the 1st plaintiff,could not be challenged. The 1st plaintiff was judicially evicted froma part of the land in proceedings of which the defendant had due notice.On that basis the damages payable to the 1st plaintiff on his own pccountin the present action would -amount to Bs. 1,440.63£ the value of hishalf stare in "the extent from which he was evicted being only Bs. 611.17-j-and not Bs. 1,222.35.
Mr. Weerasuriya argues that no cause of action accrued to the 2ndplaintiff to sue jbhe defendant in these proceedings because he was nota party to the earlier action and therefore suffered no judicial evictionfrom any part of the property conveyed to him. Mr. Thiagalingam hassubmitted in reply (1) that the 2nd plaintiff was’ in effect judiciallyevicted under the decree in the earlier action and (2)j that in the' alter-native no judicial eviction need be proved having regard to the circum-stances of this particular case. I shall consider each of Mr. Thiagalin-gam ’s submissions in turn..r
In regard to the first proposition, it is conceded that the 2nd plaintiffcannot be regarded as having been judicially evicted in the earlier actionto which he was not a parly unless the decree entered against his brotheroperated as res adjudicata against him as well. The general principleis that “ if-parties litigate a question in a Court of competent jurisdiction,such parties or those claiming through them, cannot afterwards reopenthe same question in another Court. This restriction does not extendto other persons whose interest is almost identical with that of one of theparties to the first suit if they do not actually claim through such a party. ”
4
GBATIAKN J.—Mohammado Gatsim v. Mahmood Let be
Vide Spencer v. Williams where Lord Penzance said “ every man isthe guardian of, and is entitled to litigate, his own right, and it is the-commonest principle of justice that a man should not be robbed of his•'right by the fact that another, insisting upon the same right for his own■purposes, has entered upon a litigation which has ended unfavourablyfor him. ” The 2nd'plaintiff’s title, • which wag not derived from the1st plaintifE but from their common purchaser, was not adjudicatedupon and was never in jeopardy in the earlier action. Indeed, if oneapplies the test of mutuality which is legitimate in such cases, I -do notsee how, if the result of the action had been the other way, Rabiya Ummaand Mohamed Lebbe could effectively have been confronted with a pleaof res adjudicata if they later sued the 2nd plaintiff for a declarationof their rights in the property as against him. Wytcherley v. Andrews 2,and the decisions of the Privy Council in Gh. Our Narayan et al. v. SheelalSingh et al.3, and Lingangowda Dod-Basangowda Patil et al. v. Basan-gowda Bistangowda Patil et al.*, relied on by Mr. Thiagalingam standon a different footing, because in each of these cases the unsuccessfulparty to the earlier litigation was held, for one reason or another, tohave represented not only himself but also the person who was seekingto re-agitate the same issue in a subsequent action.
There remains the question whether in applying the Roman DutchDaw which governs the case, it is open to a party to rely on any formof eviction other than eviction by judicial process under a decree to whichhe was bound.
As far as 1 have been able to discover, it has always been assumedin this Island that, for the purposes of an actio de evictione, the plaintiffis required to prove that the whole or part of the property of whichhe was placed in possession under a contract of sale had been recoveredfrom him by a third party by judicial process “ per judicem facta recupe-ratio Voet: 21.2.1. It is only necessary in this connection torefer to the Full Bench decisions of this Court in Alagiawatina v. DonHendrick 5 and Jamis v. Suppa Umma 6.
After the argument was concluded Mr. Thiagalingam submitted tome in chambers a passage from Norman’s Purchase and Sale in SouthAfrica (2nd Edition) at page 301 which indicates that, according toOrotius, 3.15.4 and Van Leeuwen (Cens. For. 1-4-19-11) a purchasercan, without resorting to litigation, give up the property and claimdamages in an actio de evictione against his vendor “ where it is clearthat the claimant’s right is a good one I have examined the authorityreferred to in this text book, and find that the Courts in South Africahave recognized this principle and to that extent taken a view whichgoes beyond the rulings of our Courts. In Human v. Meyer ~, de Villiers
J. held that the purchaser need not wait -till his title is judiciallyinterfered with if he undertakes to proye beyond doubt that the right
1 (1871) L. R. 2, P. and D. 230 (40 L. J. P. and M. 43).
(1871) 40 L. J. P. 57.
A. I. R. (1918) P. C. 140.
A. I. R. (1927) P. C. 56.
(1910) 13 N. L. R. 225.
(1913) 17 N. L. R. 33.
5 (1905) 22 S. C. 203.
Senathiraja v. Marimuttu
5.
of the claimant to whom he handed over possession was obvious. Ifthe purchaser succeeds in establishing such proof, says the learnedJudge, ‘‘ it would, to my mind, be a needless formality to insist upontwo actions being brought It is sufficient to say that, even if thisprinciple did apply in Ceylon, the 2nd plaintiff has not raised any issueor led any evidence upon which th.e Court could properly hold that thetitle of Babiy a Umma and Mohamed Lebbe was without doubt superiorto his title. Indeed, the action was based upon the assumption thatboth the plaintiffs had been judicially evicted in the earlier action. In anyevent it is not competent to this Court to refuse to follow the earlierFull Bench decisions to.which I have referred. In my opinion, therefore,the 2nd plaintiff has no cause of action against, the defendant.
would make order amending the decree by ordering the defendantto pay to the 1st plaintiff only a sum of Bs. 1,440.634- The 1st plaintiffis entitled to his costs in the lower Court, and the 2nd plaintiff willbear his own costs. I also think that in the circumstances of the casethere should be no order as to the costs of this appeal.
Ounase.’kara J.—I agree.
Decree amended.