134-NLR-NLR-V-41-ROWEENA-UMMA-v.-RAHUMA-UMMA.pdf
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KEUNEMAN J.—Roweena Vmma v. Rahuma XJmma.
1940Present: Keuneman and Nihil 1 JJ.
ROWEENA UMMA v. RAHUMA UMMA.
175—D. C. (Inty.) Galle, 37,600.
Res judicata—Two issues raised in previous action—Action dismissed—Decreeof dismissal not based on issue raised in second section—Plea of resjudicata not valid.
The defendant in this action brought a partition action (D. C. Galle,35,693) in respect of the same premises making the plaintiff in this actionthe first defendant. The latter pleaded (1) that the plaintiff in thataction could not maintain an action for partition as the plaintiff claimeda life-interest in respect of the whole of the premises, (2) that the deedin her favour prevailed by reason of prior registration over the deedin favour of the plaintiff in that action.
The Court dismissed the partition action on the first ground and heldagainst the first defendant, the present plaintiff on the second ground.
In the present action the defendant (the plaintiff in the previousaction) raised the same question of registration against the plaintiff(the first defendant in the previous action).
Held, that the plea of res judicata on the issue of registration couldnot be maintained as the decree in the former action was not basedupon it but was made in spite of it.
^ PPEAL from an order of the District Judge of Galle.
N. Nadarajah (with him U. A. Jayasundere and A. C. Alles), fordefendant, appellant.
H. V. Perera, K.C. (with him E. B. Wikremanayake), for plaintiff,respondent.
Cur. adv. vult.
June 25, 1940. Keuneman J.—
In this case, the learned District Judge has decided in favour of theplaintiff two issues, which were tried as preliminary issues, namely,—
“ (5) Is the plaintiff’s claim barred by judgment and decree in caseNo. 35,693 of this Court ?
“ (6) Is the plaintiff’s claim barred by judgment and decree in caseNo. 18,215 of the Court of Requests of Galle ? ’’
KEUNEMAN J.—Roweena Umma v. Rahuma Umma.
523
This action was brought by the. .plaintiff, Roweena Umma, against thedefendant, Rahuma Umma, for declaration of title to the premises in theschedule to the plaint, damages, and costs.
The original owner of the premises was Mohamadu Cassim. By hisregistered deed No. 2,247, D 2 of August 9, 1922, Cassim conveyed theentirety to his son Mohamed Saheed, who died, and whose estate wasadministered in D. C. Galle, No. 7,747. By his last will, Saheed devisedthe premises to his children, subject to a life-interest in favour of hiswidow, the plaintiff. Probate of his will has been obtained.
By an earlier unregistered deed, No. 4,041, D 1 of September 29, 1911,the original owner, Cassim, donated the premises to his daughter, MaharoofaUmma, reserving a life-interest in favour of himself and his wife, thedefendant. Maharoofa Umma died leaving as her heirs her father andmother, namely, Cassim and the defendant. Cassim also died subsequently.On this title, the defendant claimed a life-interest over the entirety ofthe premises in addition to the one-third share which devolved on her onthe death of Maharoofa Umma. The’ defendant prayed for a dismissal ofthe plaintiff’s action.
On March 11, 1937, the present defendant instituted a partition action,D. C. Galle, No. 35,693 (D 3), in which the present plaintiff was the firstdefendant. The points in dispute were set out as follows : —
“ (1) Does deed No. 2,247 (the present deed D 2) gain priority overdeed No. 4,041 of 1911 (the present deed D 1) ?
“ (2) Can plaintiff (i.e., the present defendant) maintain this actionas she claims the life-interest in the entire land ? ”
In his judgment, the learned District Judge held (1) that the plea ofprior registration failed, but (2) that, as the entirety of the life-interestwas vested in the plaintiff in that case (namely, the present defendant),there was no common possession entitling her to bring the partition action.The action was, therefore, dismissed with costs.
The plea of res judicata now raised in this case is based upon the findingof the District Judge with regard to point (1).
In the second case, C. R. Galle, No. 18,215 (D 4), the plaintiff, togetherwith the executor of the last will of Saheed, sued one Siman Fernandoin a tenancy case. Siman Fernando alleged that he was the tenant ofthe present defendant, who was also added as a defendant. The Commis-sioner held in favour of the plaintiff, but on appeal this judgment wasset aside and the plaintiff’s action was dismissed. The judgment of theSupreme Court is before us and it is clear that the only point decided wasthe question of fact, namely, that Siman Fernando was the tenant of thedefendant and not of the plaintiff. I do not think that there is any pleaof res judicata arising out of this case; which is available in the presentproceedings. The appeal, in so far as it relates to issue No. 6, must fail.
I shall now consider the plea of res judicata in connection with thejudgment and decree in D. C. Galle, No. 35,693 (issue No. 5).
It is clear that in that case the present defendant’s action was dismissedwith costs. But Counsel for the appellant contends that, inasmuch asthe first point decided in that case (namely, the question of prior
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KEUNEMAN J.—Roweena Umma v. Rahuma Umma.
registration), was determined in favour of the present defendant, she isentitled to claim for that finding the virtue of res judicata.
There is very strong authority in Indian cases for the followingproposition: —
“Any issue decided by a Court in favour of the plaintiff whose suitis ultimately dismissed on another ground, cannot operate as resjudicata as against the defendant in a subsequent suit. A findingcannot be conclusive against a party if the decree was not basedupon it, but was made in spite of it ”—vide Parathnath v. Ramesh-roar1—which is, as far as I know, the latest of a series of cases tothe same effect.
In this connection, the case of Midnapur Zamindari Co., Ltd. v. NareshNarayan' decided by their Lordships of the Privy Council is of interest.In that case, action was brought claiming possession against certain tenants,who pleaded (1) an occupancy right, and (2) that the suit was premature. Itwas held that there was no occupancy right, but that the suit was premature.The appeal by the plaintiff failed, but the tenants also filed a cross-appealagainst the finding that there was no occupancy right, which also failed.Lord Dunedin in his judgment said :
“ Their Lordships do not consider that this will be found an actual pleaof res judicata, for the defendants, having succeeded on the other plea, hadno occasion to go further as to the finding against them ….”.Counsel for the appellants depended on the case of Niamut Khan v.Phadu Buldia*, which is not consistent with the cases I have mentioned,but we have it on the authority of Hukm Chand—Res judicata, Art. 66,p. 47—that this case was not generally followed, and has been expresslydissented from.
In the case, D. C. Galle, No. 35,693, the plaintiff’s action was dismissedwith costs. There was accordingly no scope for the defendant to appealfrom the judgment or decree. There was no question which arose owingto the defendant being deprived of her costs in consequence of thedetermination of any issue against her.
We have, therefore, no occasion to consider whether any plea of resjudicata can arise on any such order. Further, in consequence of thenature of a partition action, no question can arise of two distinct findings,namely, one relating to declaration of title, and another to other forms ofrelief, such as damages. The action, D. C. Galle, No. 35,693, was anaction for partition or sale, and no decree could have been obtained fordeclaration of title. The second point raised in the case, namely, thatthe plaintiff, who had pleaded that she had the entirety of the life-interestcould not institute a partitionaction,wasfatal to the plaintiff’s case.
That was the first obstacle thattheplaintiffhad to overcome, although
in point of fact the District Judge considered it second. It is clear thatno declaration to the effect that the plaintiff had the entirety of the life-interest could have been obtained in a partition action.
In this connection I shall deal with the case cited for the appellant,namely, Shoe Machinery Co. v. Cutlan *. In that case, a patentee
J {1938) Allahabad 491.3 I. L. R. 6 Calcutta 320.
* A.,I. R. (1922) Privy Council 241.* L. R. (1896) 1 Ch. D. 667.
Povlier v. Ahamed Bari.
525
claimed damages for an infringement of a patent, and an injunction. Theplaintiff alleged (1) that the patent was valid, and (2) that there hadbeen an infringement. The Court, after hearing evidence, decided (1)that the patent was valid, and (2) that there had been no infringement.On the footing of both issues having been raised and determined, theCourt dealt with the question of costs, giving costs to the plaintiff on thefirst issue, and to the defendant on the second issue, and ordering thatthere should be a set-off. In the circumstances, Romer J. held in alater proceeding that the finding relating to the validity of the patentwas res judicata. This was a case where the Court had jurisdiction toenter a separate declaration of validity, and the fact that there was noseparate declaration did not prevent the plea of res judicata being upheld,where in substance the question of validity was heard and determinedand costs had been awarded on the footing of that finding.
For the reasons I have previously given, I do not think the present caseis on all fours with that decided by Romer J. I think the decree in D. C.Galle, No. 35,693, was not based upon the finding on the questionof registration, but was made in spite of that finding. Further, the plaintiff’saction having been dismissed with costs, there was no occasion for thedefendant to go further against her.
We have been referred to the form in which the decree has been drawnup, namely, “ as the life-interest in the entirety with respect to boutiqueand premises bearing assessment Nos. 44 and 42, and now No. 41,.
is vested in the plaintiff together with a one-third share of same, thisaction is not maintainable, and the same is hereby dismissed with costs. ”I do not think this carries the case any further, as it was not competent forthe Court in the partition proceedings to make any such declaration, inparticular as to the life-interest in the entirety of the premises. I thinkthe plea of res judicata fails, and the appeal must be dismissed with costs.The case is sent back for the trial of the remaining issues.
Nihill J.—I agree.
A-ppeal dismissed.
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