PIYARATNA THERA and others, Appellant , and PEMANANDA THERA, Respondent

044-NLR-NLR-V-62-PIYARATNA-THERA-and-others-Appellant-and-PEMANANDA-THERA-Respondent.pdf


BASNAYAKLE, C.J.—Piyaratana Thera v. Pemananda Thera
193
Present : Basnayake, C.J., and Sansoni, J.PIYARATANA THERA and others, Appellants, and PEMANANDA
THERA, Respondent
S'. C. 60—D. G. Kurunegala> 12,263
Res judicata—Buddhist ecclesiastical lava—Is the pupil a “ privy ” of his tutor ?—
Civil Procedure Code, s. 207—“ Same parties ”—Estoppel by judgment—
Estoppel by verdict.
In action No. 1 instituted by A, a Buddhist priest, against B, another priest,one of the reliefs claimed by A was that ho be declared the controlling Vihara-dhipati of Pallegama Vihare. After trial A’s action was dismissed. One ofthe issues raised at the trial was whether B’s predecessor was the Viharadhipatiof the temple. This issue was answered in the affirmative.
Subsequently, in the present action instituted by B against C, who was thesenior pupil and successor of A, B prayed that he be declared the controllingViharadhipati of Pallegama Vihare.
Held, that the judgment in action No. 1 was res judicata against C.
Per Basnayake, C.J.—“ The relationship of tutor and pupil in Buddhi3tEcclesiastical Law is sufficient to make the pupil bound by a judgment againstthe tutor in a case in which he seeks to reagitate a decision against his tutorby virtue of being his pupil. ”
Per Sansoni, J.—“ The decree itself is not the test of wbat is or is not resjudicata …. The determining factor is not the decree but the decision ofthe matter in controversy. ”
A
IA.PPEAL from a judgment of the District Court, Kurunegala.
H. V. Perera, Q.C., with T. B. Dissanayake, for 2nd to 5th Defendants-
Appeliants. '
E. B. Wikramanayake, Q.C., with U. B. Weerasekera, for Plaintiff-
Respondent.
Cur. adv. vult.
June 22, 1960. Basnayake, C.J.—
The plaintiff Pallewela Pemananda Thera controlling Viharadhipatiof Tekawa Vihare instituted this action against Karandawa PiyaratanaThera of Karandawa Temple, Hettipola, Pihimbiya Piyaratana Theraof Giratalane Temple, Hettipola, Amunuwala Saddananda Thera ofHinguregama Vihare, E. M. Dingiri Banda Vidane of Pallegama, Hetti-pola, P. M. William Singho of Pallegama and E. E. Sediris Appu of
9—Lxn
2J. N. K 12721—1,095 (10/00)
104
BASNAYAKJE, C.J.—Piyaratana Thera v. Pemananda Thera
Silvathgama, Hettipola. He prayed that he be declared the controllingViharadhipati of the Pallegama Vihare of Tekawa and that the defen-dants be ejected from that Vihare and its lands and that he be placed inquiet possession thereof. He also claimed damages in Rs. 500 andcontinuing damages at Rs. 500 per annum.
The 1st defendant Karandawa Piyaratana Thera stated in answer tothe plaint that he made no claim whatsoever to the Vihare or its tem-poralities. So did the 4th defendant Dingiri Banda Vidane and the5th defendant P. M. William Singho who are the President and theSecretary respectively of the Hay aka Sabhawa. Of consent the 1st.defendant was discharged from the action. The 2nd and 3rd defendantsmaintained—
that Pihimbiya Piyaratana Thera the 2nd defendant is the lawfulViharadhipati of Pallegama Vihare and is entitled to administer itstemporalities,
that Amunuwala Saddananda Thera the 3rd defendant is thesenior pupil of the 2nd defendant,
that the 6th defendant K.. K. Sediris Appu is a tenant under the2nd defendant.
At the trial the plaintiff's pleader suggested the following issues :—
“ 1. Was Tekawa Sumangala Thera at one time the Viharadhipati of
this temple ?
Did he die leaving as his pupil Tekawa Ratanajoti Thera as
Viharadhipati ?
Hid Tekawa Ratanajoti Thera die leaving plaintiff his senior
pupil and his successor in office ?
Hid the defendants enter into forcible possession of this temple
and the temporalities attached thereto on 15.11.54?
Are the defendants in forcible possession of this said temple and
the temporalities since that day ?
What damages, if any, is the plaintiff entitled to ?
Is the decree in case 7508 of this court res judicata as against
the defendants or any of them in regard to the subject matter
of this action ? ”
It is not necessary to refer to the issues suggested by counsel for the 1stdefendant as he has been discharged from the action of consent. Counsel'for the other defendants suggested :
“10. Has the title of the plaintiff, if any, to the said.incumbency beenlost by lapse of time ?
BASNAYAKE, C.J.PiynraUuui Thera v. Pemanutida Thera
195
Has the title of the plaintiff, if any, been lost by abandonment
of the said temple ?
Is there a misjoinder of parties and/or causes of action ?
If there is such a misjoinder, can the plaintiff have and maintain
this action ? ”
At the outset of the trial the following admissions were recorded :—
(а)It is admitted that the 2nd and 3rd defendants are the pupils ofMaguran Kadawela Ratanapala Thera who was the plaintiff in I>. C.Kurunegala Case No. 7508. The 2nd and 3rd defendants do not claimany title except through Ratanapala Thera.
(б)It is also admitted that the plaintiff is the successor in office ofTekawa Ratanajoti Thera.
(c) It is admitted that if the judgment in ID. C. Kurunegala CaseNo. 7508 is res judicata, it binds not only the 2nd and 3rd defendants butit binds 2nd to 5th defendants also.
(<Z) Damages were agreed at Rs. 400 per annum from 15.11.54.
The following agreement is also recorded :—<c Defendants undertakenot to press the other issues if the plaintiff succeeds on the issue of resjudicata. "
Shortly the facts are as follows :—Tekawa Sumangala was theViharadhipati of both Tekawa and Pallegama Vihares. When he diedhis senior pupil Tekawa Ratanajoti succeeded him. The plaintiff isadmittedly Ratanajoti’s pupil and successor ; but at the time of Rata-najoti’s death Magurankadawela Ratanapala Thera was in charge of thetemple as adhikari by virtue of the following writing given to him byTekawa Sumangala Thera :—
cc In the Saka Era 1810 Month of III.
I the undersigned Tekawa Sumangala Thera Viharadhipathy ofTekawa Vihare and Pallegama Vihare in Giratalana Korale DewamediHatpattu Sath Korale state as follows :—
As I do not have any of my pupils to keep at Pallegama Vihare nowand as I am going to Satarakorale to reside I have entrusted my friendMagurukadawala Ratanapala Thera of Karandawa Temple in KarandaPattu Korale to improve &ad to live at the said place.
Further it was agreed that I or any of my pupillary successors comeand ask the place he has to hand over the same to him.
9 9
Sgd. Tekawa Sumangala Thera.
196
BASNAYAJL^, U.J.
Jr’iyaratana Thera v. Jr’emananda. Thera
On 2nd May 1949 Magurukadawala Ratanapala by the followingnotarially attested writing purported to transfer the Adikariship to theplaintiff :—
Lands 6
No. 17067
Deed of Transferring of Adikariship or Incumbency.
To all to whom these presents shall come I MagurankadawalaRatanapala Thero Viharadhipathy of Hinguregama Vihare sendsGreetings :—
Whereas Tekawe Sumangala Thero the incumbent of Tekawe Viharein Giratalana North and Pallegama Vihare in the aforesaid Morale,about sixty years ago by ola writing dated (Saka era 1810 in the monthof HI) (o32s> S& 1810 2sfg ©ea gcS qO©zsf ^zn) transferred and assignedto me the said Magurankadawala Ratanapala Thero, the propertiesmentioned in the schedule annexed hereto belonging to the said Pal-legama Vihare and mentioned in list No. 185 of the year 1870 anddeposited in the Kandy Kachcheri (which is not before us) for thepurpose of improving and possessing same.
Whereas by the said ola writing it was laid down as condition thatthe said premises should be retransferred and assigned to the saidDonor Tekewe Sumangala Thero or any pupil of his entitled to bepupillary succession if they ask for a retransfer.
Whereas I the said Magurankadawela Ratanapala Thero am ill fora long time and in feeble health and am old and I have not been ableto improve and possess the properties or render any assistance to thepriesthood or for the improvement of the said Viharas.
Whereas Pallewela Pemananda Thero, Viharadhipathy of SiriBodisiparamaya Purana Vihare, Tekawe, in Giratalana Korale afore-said, who comes from the pupillary succession of the said TekaweSumangala Thero promised to look after the said properties in a bettermanner and requested me to hand over the adikariship of the saidproperties according to Sangika rights.
Therefore I the said Ratanapala Thero agree to give the adikarishipof the said properties to the said Pallewela Pemananda Thero.
Know all men by these presents and I the said MagurankadawelaRatanapala Thero in consideration of the above mentioned reasonsdo hereby transfer my rights and privileges as adikariship to the saidproperties according to Sangika rights unto the said Pallewela Pema-nanda Thero and his pupillary succession to improve and possess thesaid properties.
Whereas the said Pallewela Pemananda Thero accepted the abovementioned adikariship with pleasure.
BASYAYA JCE, C.J.—Piyaratana Thera, v. Pemananda Thera
197
In witness whereof the said Magurankadawela Ratanapala Themand Pallewela Pemananda Thero do set our hands hereunto and totwo others of the same tenor and date as these presents on this 2ndMay 1949 at Kurunegala. ”
(Here follows the Schedule of Lands.)
On 27th April 1951 Ratanapala instituted D. C. Kurunegala CaseNo. 7508 against Pallewela Pemananda Thera the plaintiff in which heprayed that deed No. 17067 he declared to be of no force or avail to vestdefendant with the right to be Viharadhipati of Pallegama Temple or tothe control or management of its temporalities, and that he be declaredViharadhipati of Pallegama Temple and controlling Viharadhipati asdefined in the Buddhist Temporalities Ordinance.
Pallewela Pemananda Thera denied the allegations in that plaint,,narrated the case now set out by him, and prayed that the plaintiff’saction be dismissed, and that he be declared the controlling Viharadhipatiof the temple.
After trial the plaintiff’s action was dismissed. The material portionof the decree reads :
“ It is ordered and decreed that the-plaintiff’s action to declare thedeed No. 17067 dated 2nd May 1949 attested by L. M. P. Jayawardene,Notary Public, null and void and that he be declared Viharadhipati ofPallegama Temple and controlling Viharadhipati as defined in theBuddhist Temporalities Ordinance, be and the same is herebydismissed. ”
The learned District Judge holds that the decree in that case bindsthe 2nd and 3rd defendants. He says :
“ It is clear on the law that the pupils would be bound by the earlierdecree against their tutor as to whether the tutor was the Viharadhipatiof the temple or not. This is clear from the judgment of Gratiaen J.in Rev. ISIoragolle Sumangala v. Rev. Riribamune Riyadassi (5G N. L. R.322). The 2nd and 3rd defendants claim title through Ratanapala whowas admittedly held not to be the Viharadhipati of this temple but theplaintiff was declared to be the Viharadhipati of this temple. Hencethe defendants are bound by that decision.”
The learned District Judge is mistaken in thinking that in that actionthe plaintiff was declared to be the Viharadhipati of Pallegama Vihare.There is no such declaration in the decree. Although it would appearfrom the plaintiff’s answer in that case that he asked for such a declarationit was not granted. The 2nd defendant who is the senior pupil of Rata-napala whose action to be declared Viharadhipati of the temple in dispute
2•J. X. P 12721 (10/60)
198
BASNAYAKE, C.J.—Piyaratana Thera v. Pemananda Thera
was dismissed claims that lie is the lawful .Viharadhipati by succession.The following admissions were recorded before the plaintiff commencedhis case :—
“It is admitted that the 2nd and 3rd defendants are pupils ofMaguran Kadawala Ratanapala Thero who was the plaintiff in D. C.7508. The 2nd and 3rd defendants do not claim any title except throughRatanapala Thero. It is also admitted that the plaintiff is the suc-cessor in office of Tekawe Ratanajoti Thero. It is admitted that if thejudgment in that case is res judicata it binds not only 2nd and 3rddefendants but it binds 2nd to 5th defendants.”
The plaintiff gave evidence on his behalf. The defendants neither gaveevidence nor called witnesses on their behalf. The only question fordecision is whether the 2nd defendant is barred by the decree against histutor from maintaining in the present action that he is the Viharadhipatiby virtue of being Ratanapala’s senior pupil.
The Legislature has sought to give effect to the Roman Law maximsof res jztdicata pro veritate habetur (or accipitur) (Dig. 1.5.25), nemodebet bis vexari si constat curiae quod sit pro una et eadem causa ; reipub-licae interest vi sit finis litium, and res judicata inter alios, aliis nequenocet neque prodest by enacting sections 34, 207 and 406 of the CivilProcedure Code, section 330 of the Criminal Procedure Code, and sections41 and '42 of the Evidence Ordinance. Section 100 of the EvidenceOrdinance may be invoked in appropriate cases for the purpose ofresorting to the English rules of Estoppel by record.
The statutory provisions abovementioned must be read against thebackground of our common law as they are designed to give statutoryeffect to the basic concepts of that law, concepts which are commonto all systems based on Roman Law. The enactment of the law ofres judicata partly as a matter of procedure in the Civil Procedure Codeand partly as a matter of evidence in the Evidence Ordinance is ap-propriate, in that res judicata operates both in the field of civil procedureand in the field of evidence. In our system of law the judgment whichis relied on as barring the subsequent action must be both pleaded andproved in evidence. I think the same is the rule in systems whichrequire strict pleadings before trial.
Eor the purpose of this judgment I shall confine my attention tosection 207 of the Civil Procedure Code. That section reads :
“ All decrees passed by the court shall, subject to appeal, whenan appeal is allowed, be final between the parties ; and no plaintiffshall hereafter be nonsuited.
Explanation.—-Every right of property, or to money, or to damages,or to relief of any kind which can be claimed, set up, or put in issuebetween the parties to an action upon the cause of action for which
TtASTvTAYATTR, C. J.—JPiyaratana Thera v. Peinanandu Thera
199
the action is brought, whether it be actually so claimed, set up, or putin issue or not in the action, becomes, on the passing of the final decreein the action, a res adjudicata, which cannot afterwards be made thesubject of action for the same cause between the same parties.”
In the instant case the 2nd defendant was not named as a party to theoriginal action which Ratanapala brought. The question then is—Does the section apply only to the parties named either as party plaintiffor defendant to an action or does the word “ parties ” therein extendto persons other than those named as parties to the action ? If so, towhat classes of persons does the expression extend ? In Roman-DutchLaw the expression had an extended meaning as would appear from thefollowing quotations from Voet and Huber. Voefc (Bk XLIV—Tit.2 s.3—Gane’s translation Vol. 6 p. 558)—
“ A deceased and his heir, a principal and his agent, a free townand its manager, an insane person or a soldier and his curator, a wardand his guardian and a father and the son of his household are in civillaw the same person. So are a creditor and his debtor in regard tothe thing pledged, if the debtor gave the thing in pledge to his creditorafter he had claimed it from a third person and had lost his case, andlater the creditor wishes to take steps against the winning party bythe action on pledge. So are two joint (and several) debtors or cre-ditors, if one of them has suffered a rebuff in claiming a thing or, whenthe thing was claimed from one of two joint (and several) debtors, hehas been absolved in a judicial proceeding. So are a surety and thedebtor, if judgment has been given in favour of the debtor ; and apurchaser and his vendor, if the vendor has been absolved or has hadjudgment against him, though not also if that is the case with thepurchaser. ”
Huber (The Jurisprudence of My Time—Gane’s translation Vol. 2p. 338)—
c< Testator and heir, principal and agent, purchaser and seller,owner and successor in ownership, debtor and surety, and also thefirst members of a family and their successors entitled to one and thesame fideicommissum, though not heirs of each other, are consideredas the same persons.”
It would appear that the expression inter easdem ‘personas in Roman-Dutch Law which is translated by some as “ between the same parties ”and by others as “ between the same persons ” was extended by a legalfiction to certain classes of persons other than the parties actually engagedin the action. This extended meaning of the expression “ same parties ”has been recognised from the earliest times in our law and it must bopresumed that when the Legislature enacted the Civil Procedure Codeit used those words in the sense in which it was understood in our commonlaw of res judicata and did not intend to make any alteration in that
200
BASMAYA~KE, C.J.—Piyaratana Thera v. Peihananda Thera
law (Murugiah v. Jaimtdeen1), because there is no indication in the CivilProcedure Code that the Legislature intended to use the word “ parties ,rin a sense different from that in which Voet and Huber used it in theircommentaries. I find support for my opinion in the following words ofLascelles C.J. in Samichi v. Pieris 2—
“ The law of res judicata has its foundation in the civil law, and waspart of the common law of Ceylon long before Civil Procedure Codeswere dreamt of. But even if these sections contain an exhaustive state-ment of the law on this point, I cannot, see that there is anything inthem which is inconsistent with the principles which have beenfollowed in the English, Indian, and American Courts.”
The interpretation I seek to give to the words “ same parties ” in-section 207 is not inconsistent with the rules of construction of statutesas stated in such standard treatises as Craies (p. 112—5th Ed.) andMaxwell (p. 82—10th Ed.). They are to the effect that in construingthe words of an Act of Parliament in the absence of a clear indicationfrom its express language that the Legislature did intend to go against the-ordinary rules of law they should be construed on the basis that it didnot intend to do so.
The English Law has devised a very convenient nomenclature in theword “privy” for those persons who are in law bound by a decreethough not named as parties to an action. In that system “privies”are classified as (a) privies in blood—ancestor and heir ; (6) privies inlaw—testator and executor, intestate and administrator ; and (c) privies-
in estate—testator and devisee—vendor and purchaser, lessor and lessee
successive incumbents of the same benefice^assignor and assignee of abond. The word ‘"privy” has been used in the judgments of thiscourt and I shall also adopt it for the sake of convenience. No hardand fast rule as to who is a “privy ” can, apart from the well-knowninstances cited above, be laid down. .But the development of the doc-trine of res judicata would be hampered if Voet’s enumeration of personabound by a decree is treated as exhaustive and incapable of extension to-other like cases. In deciding whether a judgment is a bar to personsother than the parties named in an action reagitating the same questionwe should bear in mind the maxims cited earlier in this judgment.
I shall now turn to the submission of learned counsel for the appellantsHe argued that as a pupil does not in Buddhist Ecclesiastical Law eitherderive title from his tutor or claim under him he is not his privy. It istrue that a pupil does not derive title from his tutor in the sense that apurchaser derives title from his vendor or an assignee from the assignor;In the succession known as sisyanu sisya paramparawa pupil succeeds-tutor. A Viharadhipati is not the owner of his temple or its tempora-lities. He is a trustee with power, subject to certain exceptions, to-appoint another as trustee if he so chooses. He cannot transfer his
1 (1954) 56 N. L. R. 176 at 181.
* (1913) 16 N. L. R. 257.
SANSONT, J.—Piyaratana Thera v. Pemananda Thera
201
Tights in his lifo-time although he may appoint agents to look after ormanage the temple or temples and their temporalities. He is not free■to nominate a person other than a pupil as his successor. If he dieswithout nominating a successor his senior pupil succeeds to the officeof Viharadhipati and thereby becomes entitled to exercise themanagement of the temples of which his predecessor was Viharadhipati.Hukm Chand in his treatise on Res Judicata (p. 193, 1894 Ed.) citesseveral instances similar to the relationship of Viharadhipati and successorin which the courts have held the successor to be barred from reagitatingthe decision given against the predecessor. In discussing the subject ofPrivies, Halsbury (3rd Ed. Vol. 15 p. 197) classifies successive incum-bents of the same benefice as privies in estate. In my opinion the rela-tionship of tutor and pupil in Buddhist Ecclesiastical Law is sufficient-to make the pupil bound by a judgment against the tutor in a case inwhich he seeks to reagitate a decision against his tutor by virtue of beinghis pupil. The use of such expressions as “deriving title from”,
claiming under ” and “ claiming through ” have led to some of thedifficulties that have arisen on the subject of “ privies ” in res judicata.The fact that those words are appropriate when speaking of certainclasses of “ privies ” does not limit the scope of the word to those cases.
In the instant case the 2nd defendant the pupil of Ratanapala seeks toTeagitate the question whether Ratanapala was Viharadhipati of PallegamaVihare, for, without establishing that his tutor was Viharadhipati ofthat Vihare, he cannot succeed. How it was decided in the previousaction that Ratanapala was not the Viharadhipati. In this action bythe plaintiff against the 2nd defendant and others the law does notpermit the 2nd defendant to raise the question again because though notnamed as a party to the original litigation he cannot succeed withoutreagitating the question which was decided in the litigation between his-tutor and the plaintiff. That a pupil is a privy of his tutor seems to havenever been doubted. In the case of Rev. Moragolle Sumangala v. Rev.Kiribamune Piyadassi1 it was taken for granted that the pupil of a Viha-radhipati was his privy and was barred qua pupil from reagitating thequestions decided in an action to which his tutor was named as a party.
I therefore hold that the judgment against Ratranapala in D. C.Hurunegala Case No. 7508 is res judicata against the second defendant.
The appeal is therefore dismissed with costs.
Sansont, J.—
I have touched on this subject in Podiya v. Sumangala Thero 2, and I .should liKe to add some observations by way of supplementing what Isaid on that occasion.
1 {1955) 56 N. L. B. 322.
S
{1956) 58 N. L. B. 29.
202
SANS ONI, J.—Piyaratana Thera v. Pemananda Thera
Mr. H. V. Perera’s main argument was that the principle of res judicatacannot apply because (1) in the case of a tutor and his pupil, the pupilt&fces after and not under the tutor, and the pupil is therefore not a privyof the tutor : (2) no question of property is involved, but merely the rightto an office, in a dispute regarding an incumbency.
Now although an incumbency is an office, I have tried to show in myjudgment in Podiya v. Sumangala Thero (supra) that it is an office towhich rights in property attach ; and for that reason I think the principleof res judicata would apply. To quote a well-known passage from Bigelowon Estoppel (5th Edn.) page 142 : “In the law of estoppel, one personbecomes privy of another, (1) by succeeding to the position of that otheras regards the subject of the estoppel, (2) by holding in subordination tothat other …. But it should be noticed that the ground of privityis 'property and not personal relation.” If, as was held in Punnananda v.Weliwitiya Soratha1, and subsequent cases, a pupil loses his right ofsuccession when his tutor abandons or renounces his rights to an incum-bency, it can only be on the ground of privity. In my view, a pupilwho claims an incumbency on the ground that his tutor was in the linoof succession to that incumbency is claiming it on the ground of property :he would, moreover, for the purpose of the law relating to res judicata,be the privy of his tutor if he claims under the same title as that underwhich his tutor claimed in the earlier litigation. If, however, he claimsunder a different title which is independent of that put forward by histutor, he would not be the privy of his tutor. Hnkm Chand in hisTreatise on the Law of Res Judicata (1894) says, at page 184,: “ Priviesare held bound because they have succeeded to some estate or interest• which was bound in the hands of its former owner ; and the extent ofthe estoppel, so far as the privy is concerned, is limited to controversiesaffecting this estate or interest.” Caspersz in his book on Estoppel andRes Judicata (1909) page 162 says that “ the test is to be whether thetitle to the subject matter of the two litigations is the same ….A lawyer will probably ask himself the question, ‘ Is the same titleinvolved ? * ”
Mr. Perera submitted that a tutor and his pupil were in a positionsimilar to a fiduciary and a fideicommissary, and I think the analogyis a proper one. While a fiduciary, in relation to fideicommissaries,can be regarded as representing the inheritance, a tutor in relation tohis pupils in a particular line of succession can be regarded as representingthe succession of that line. But it must be remembered that in certainrespects the pupil’s position is more precarious than that of the fidei-commissary, in that the tutor enjoys the powers of abandonment andnomination which a fiduciary does not. Then the decision in BLatLerv. Marrikar2, with which I respectfully agree, leads to the result that justas a fidei commissary is a privy of the fiduciary and is bound by a judgmentagainst the latter, a pupil is bound by a judgment against his tutor*
* (1950) 51 N. L. B. 372.
.*1(1942) 43 N. L. R. 387.
SAN SON I, J.—Piyaratana Thera v. Petri an and a Thera
203
provided that the pupil is claiming under the same title as the tutorclaimed under in the earlier action.
Mr. Perera also urged that since what was suggested in issue (7) asres judicata was the decree in case No. 7508, and the decree in that case didnot declare the present plaintiff entitled to the incumbency, the issuemust be answered against the plaintiff. I think this is too technical aview of the matter, for it overlooks the principle that ** the decree itselfis not the test of what is or is not res judicata, but that the question ineach case is What did the Court really decide ? Res judicata, in otherwords, is matter of substance,” see Caspersz, page 77. The determiningfactor is not the decree but the decision of the matter in controversy.
The point has been dealt with by Jayewardene, A.J. in Velupillai v.Muthupillai1.” Generally speaking, estoppel or res judicata may arise
either where there is identity of cause of action or where there is identityof point in issue. Where there is identity of causes of action, the judg-ment in the case is a bar to all further litigation upon the same property,claim or right. In such cases, it must be shown that there is identitybetween the present and former causes of action. If they are identical,the plea of estoppel is good. This is the class of estoppel by res judicatadealt with in the explanation to section 207. In the other class of cases,identity of causes of action is immaterial, and the only question to bedecided is whether the point in issue is identical in the two cases. Insuch cases, the judgment on the issue creates an estoppel with regardto all matters in dispute upon the decision on which the finding wasbased. ” The two kinds of estoppel have sometimes been referred to asestoppel by judgment and estoppel by verdict. In the latter case,“ an actual decision on any matter directly in issue in a suit is conclusive*of that issue in every subsequent suit brought on any cause of actionor for any purpose or object ” : see Hukm Chand, page 7.
I find that in case No. 7508, issues (9) and (10) were as follows :—
Was Thekewa Sumangala Thero at one time the viharadipathiof the temple in claim 1
Is the defendant (the present plaintiff) pupil in succession of thesaid Thekewa Sumangala Thero ?
and both issues were answered in the affirmative. Thus we have acase of estoppel by verdict in the present plaintiff’s favour against theparty whose title, and no other, is relied on by the present defendants-appellants. They are conclusively barred by that verdict.
I agree that the appeal should be dismissed with costs.
Appeal dismissed. ,
1
(1923) 25 N. L. JR. 264.