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Present: Ennis- and Schneider JJ.
RATNAJOTI v. SOMAN AND A.
71—D. C. Matara, 8,922.
Civil Procedure Code s. 325—Action for incumbency and possession ofa temple—Denial by second- defendant that he made any claim—
. Dismissal of action against second . defendant—Writ of possession .against first defendantr^-Resistdnce by second defendant—Issecond defendant .bounded by decree*
Plaintiff sued the defendants -for. the incumbency and possessionof a temple. The. second defendant filed answer denying thatplaintiff was' the chief incumbent, and that he (second defendant)set up any claim .himself. ' Plaintiff obtained judgment against thefirst defendant, but the action was dismissed as against the seconddefendant. When plaintiff sought to be placed in possession of thetemple, the, second defendant resisted. The District Judge heldthat as the action was dismissed, as against the second defeudant,he was not – bound by the decree.
Held; that the decree bound the second defendant, and that-, hecould not deny the plaintiff's right to the chief incumbency.
Zoyna,• for plaintiff, appellant.
Samardwickreme (with Kim D. B. Jayatileke and Weerasuriya), forsecond defendant, respondent.
September 5, 1922. Ennis J.—
This is an appeal from an order made in the following circum– stances. The plaintiff made a claim against the first and seconddefendants for the incumbency and possession of the temple. Thesecond defendant filed answer, in which he denied that the plaintiffwas chief incumbent of the temple. He did not set up any claim
to the office himself. At the trial certain issues were framed »namely, whether the plaintiff, or the first defendant, was the lawfulsuccessor to the chief incumbency ; secondly, whether the plaintiff'scause of action is prescribed ; and thirdly, whether the plaintiff hasany cause of action against the second defendant. The learnedJudge gave judgment in the plaintiff’s favour as against the firstdefendant, and he dismissed the plaintiff’s action against the seconddefendant, with costs. The plaintiff thereupon sought to be_ placedIn possession of the temple, but the Fiscal was resisted when hetried to put the plaintiff in possession. The plaintiff then presenteda petition to Court under section 325 of the Civil Procedure Code.The first defendant then appeared, and said that he had not resistedthe Fiscal, but that second defendant had the key and had objectedto the plaintiff being put in possession. Thereupon notice wasissued to second defendant, and proceedings under section 377 ofthe Civil Procedure Code taken. When the matter came up foradjudication, the learned Judge made order, holding that the decreehad definitely dismissed the action against the second defendant,and declared that plaintiff' to be the chief incumbent, and that itdid not, therefore, bind second defendant. The Judge proceeded toadd that if the second defendant objected tp the plaintiff beingplaced in possession, the Fiscal could do nothing. The appeal isfrom that order. The action having 'been dismissed on the issue asto whether the plaintiff had a cause of action against the seconddefendant the second defendant cannot now' assert a cause of action,and deny the plaintiff's rights to the chief incumbency. The issuesas framed show that the second defendant did not himself claim theoffice of chief incumbent, and. that the • contest in the case wasbetween the plaintiff and first defendant ; the second defendantasserting, for the purpose of the issues, that the plaintiff had nocause of action against him, in other words that he had neverdenied the plaintiff's right, notwithstanding the fact that in hisanswer he had said the plaintiff was not entitled .to the office of chiefincumbent. The decree in the case triads the second defendant.It is"clear that respondent, on the question as to whether the plaintiffhad any cause of action against him, cannot now deny the plaintiff'sright, for the- denial of plaintiff’s right is a cause of action which heshould have, remembered when the issues were framed. The seconddefendant’s action in this matter appears to be a contemptuousevasion of the order of the Court, and in order to make it clearbeyond any possibility of evasion, that the decree'does bind thesecond defendant, I would act under section 753 of the Civil Proce-dure Code, and set aside the decree in the case1 in revision, and givejudgment for plaintiff against second defendant in the action. Iwould allow all costs of appeal and in the Court below to-plaintiff.
Schneider J.—I agree.
RATNAJOTI v. SOMANANDA