053-NLR-NLR-V-22-SANCHI-APPU-v.-JEERIS-APPU.pdf
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1920.
Present: Ennis J. and Loos A.J.
SANCHI APPU v. JEERIS APPU.307—D. 0. Tangalla, 1,697.
Res judicata—Dismissal of partition action—Subsequent action fordeclaration of title.
The dismissal of plaintiffs action for partition on the groundthat he Had neither paper title nor title by prescription was heldin the circumstances to be no bar to a subsequent action fordeclaration of title between the same plaintiff and defendant.
^ I THE plaintiff-appellant instituted this action to be declaredentitled to 13/28 shares of a piece of land and to planter’sshares of certain plantations, for damages, and costs as against thetwenty-first defendant-respondent.
The other defendants were made parties as they were co-owners,.
The twentyffirst defendant filed answer stating, inter alia, thatthe decree in D. C. Tangalla in case No. 952 was a bar to the plaintiffclaiming any shares of the land, and that as a matter of fact only thetwenty-first defendant and some others were entitled to the wholeland. The District Judge upheld the objection.
The judgment of the District Judge in D. C. Tangalla, 952, wasas follows:—
The plaintiff seeks a partition of four allotments of land, whichhe calls Wewehena, Bogahahena, Arehena, and Ketakelagahahena,depicted in the survey made by Mr. Anthonisz as lots A and B.According to him one Mathes was the original owner. He had sevenchildren …..
Plaintiff, therefore, claims half of the land comprised within lotsA and B and certain shares of the plantations thereon.
His counsel wished to produce two deeds dated 1835 and 1836 infavour of the original owner Mathes. This was objected to by theopposite side on the ground that the deeds were not registered. Thesedeeds are not originals, and, therefore, though they were annexed toplaintiffs deed (P 1), cannot be received in evidence. Nor is there anyproof that the originals were registered. I cannot, therefore, admit theminto evidence. Then plaintiff will, therefore, have to fall back uponpossession to establish title. One of. his witnesses, Don Mathes, stateshe cleared Arehena for plaintiff’s father. The fourteenth defendant,the value of whose evidence is discredited by his being in Court whenthe previous witnesses gave evidence, states he cleared Bogahahena'fifteen years ago for his wife, and the paraveni share of the crop wasdivided amongst plaintiff's predecessors in title. In cross-examinationhe admitted that since that time he did not go near the land. Tfienext witness is plaintiff’s brother, who says his grandfather was theowner of the four chenas, and that his father, uncles, and aunts tookthe paraveni share of their produce for twenty years.
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It Will thus be seen that only one witness, ancTthat plaintiff’s ownbrother, speaks of possession regarding all four chenas. As regards*
Arehena, the defendants, thirty-seventh, fortieth, and forty-third, do not Sanchiclaim it, and state it is included in lot B, which they do not claim.Appu e.
A comparison of the plan attached to P 12, which is the certificate of Jeeris Appuquiet possession in plaintiff’s favour, with Mr. Anthonisz’s plan willshow that Arehena claimed by plaintiff is the southern portion of l6t B.
It is admitted that there are several Bogahahenas near the block Ain dispute, and there is no evidence before the Court that the Bogaha-hena referred to by plaintiff and his witnesses is included in lot A.
This is plaintiff's own fault. He failed to produce his title planNo. 190,774 to the surveyor, Mr. Anthonisz, nor has he done so in thiscase. He has done this intentionally, fgr 1 venture to think that thatplan refers to Bogahahena, which is said to be to the north of Arehenaand to the north-west of lot A, that is to say, it is altogether outside A,and includes only the northern portion of B. The chief disputants inthis case are the thirty-seventh, fortieth, and forty-third defendants,who claim the whole of lot A. and disclaim title to B. Of the otherdefendants, some agree to the partition and others disclaim title.
The plaintiff has failed to prove title in Mathes, the alleged originalowner, and also possession in himself and his predecessors in title.
I further hold that plaintiff should not have brought this caseunder the Partition Ordinance. Bo should have brought an action tovindicate title.
I dismiss plaintiff's case, with costs.
He will pay costs of thirty-seventh, fortieth, and forty-thirddefendants.'
Allan Beven,
District Judge.
On* appeal, the Supreme Court delivered the following judg-ment :—
Hutchinson C.J.—
The plaintiff sues for partition of two lands marked A and B in theplan filed in the case. The District Court dismissed his action becausehe had not proved his title. The only respondents to his appeal arethe thirty-seventh, fortieth, and forty-third defendants* ;* they dis-claimed title to B, but claimed the entirety of A. This appeal relates,therefore, only to A.
The plaintiff alleged that he obtained the shares which he claimed bytransfer from some of the heirs of Don Mathes, who, he said, was theformer owner of the whole land; and he also claimed them by posessionfor the period of prescription. In proof of the ownership of Mathes hetendered in evidence copies of two deeds of transfer to Mathes, No. 2,064dated December 16, 1835 (marked P 11), and No. 3,021 dated February23, 1836 (marked P 10). These *are certified copies from theduplicates filed of record in the Registrar-General’s Office. He also put' in evidence a certified copy undated, or part of an old case actionNo. 1,811 in the District Court of Tangalla, this is marked P 2, andconsists of (1) the libel in which the plaintiffs say that they are entitledas mortgagees of certain lands to the paraveni share of the crops, andthat the defendants have wrongfully taken some of that share; (2) theanswer of the first defendant, Mathes, in which he says that the saidlands belong to him by virtue of the deeds which he files ; and (3) copies-
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1920. of translations of the two deeds, Nos. 2,064 and 3,021. The defendants——objected to the admission of P 10 and P 11 on the ground that they
Scmchiwere not registered as required by Ordinance No. 6 of 1866. The
Ayypuv.District Judge said that he would make his order on this objection
Jems Apputhe case hadbeen heard. In'his judgment he ruled that P 10
and P 11 were not admissible because they are not originals, andbecause there was no proof that the originals were registered*
In support of the appeal the plaintiffs counsel cited the judgment ofthis Court in 306—D. C. Ratnapura, 1,111, given on November 10,1903,in which it was held that the Ordinance of 1866 did not apply to asannas, which before the Ordinance came into force had been thesubject of a judicial trial, and had been made part of the record,, andhadbeen pronounced by the decree to be genuine, and had been at thetime when the Ordinance was enacted, and continuously thereafteruntil the expiration of the time limited for registration lying amongthe records of the District Court.
In-the present case, however, there is no evidence that these deecb^had been adjudicated upon, or that they were-in the record when theOrdinance was enacted. In my opinion they were rightly rejected.
. The Judge also found that the plaintiff had not proved title byprescription, and it is not now contended that that finding Was wrong.
The appeal, therefore, fails as to A, and the other defendants who areinterested in B are not made respondents.
The appeal must be dismissed with costs.
Middleton J.—I agree.»
i
A, St. V. Jayawardene, for plaintiff, appellant.
Barth6Umeu$Zy for twenty-first defendant, respondent.
March 4,1920. Ennis J.—
This was an action rei vindicatio. The appeal is from the dis-,missal of the claim on the ground that a judgment in a previouscase was res judicata. The previous case was partition actionNo. 952, D. C. Tangalla, in which the plaintiff sought to partitionthe land in dispute, and the twenty-first defendant, who is therespondent to this appeal, was the thirty-seventh defendant in thatcase. The partition case related to two lots, Bogahahena andArehena. The thirty-seventh defendant disclaimed title to Arehena,and he put the plaintiff to the proof of his title to Bogahahena.The learned Judge in that case dismissed plaintiff’s action, on theground that he had failed to establish either his paper title or atitle by prescription. The judgment did not go into the relativemerits of the claims of the plaintiff and the thirty-seventhdefendant. The plaintiff, who sought to partition, failed because hecould not establish his own title, and the Judge further remarkedthat his proper action would have been a rei vindicatio action, inview of the fact that he was aware that the thirty-seventh and thefortieth defendants were contesting his title. So far as we areaware in this case, there is nothing to show that the thirty-seventh
defendant in the partition aotion adduoed any evidence at all insupport of his title. It is impossible, therefore, to say that thedecision in that partition action was relative between the plaintiffand the thirty-seventh defendant. In my opinion, therefore, thelearned Judge was wrong in holding that the partition was teajudicata.
I accordingly allow the appeal, and send the case back for furtherproceedings. The appellant will be entitled to the oosts in theDistrict Court of the trial of the issue.
1920.
Ennis J.
SanchiAppu v.Juris Appu
Loos J.—I agree.
Appeal allowed.