031-NLR-NLR-V-12-SARAM-APPUHAMY-v.-MARTINAHAMI-et-al.pdf
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Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
SARAM APPUHAMY v. MARTINAHAMI 'et at.
D. C., Negombo, 7,118.
Rea judicata—Judgment in partition suit—-Action rei vindicatio—Civil Procedure Code, s. 207.
Where a partition suit was dismissed on the ground that thedefendant had acquired title by prescription to the land, and wherethe defendant subsequently brought an action to vindicate histitle to the land pleading the judgment in the partition suit as resjudicata on the question of title,—
Held, the judgment in the partition suit operated as res judicata,and prevented the parties from raising the question of title again.Fernando v. Menikrcda1 referred to and distinguished.
PPEAL by the plaintiff from a judgment of the District Judge
(R. W. Byrde, Esq.). The facts are fully set out in thejudgment of Wendt J.
H. A. Jayewardene, for the plaintiff, appellant.
F. M. de Saram, for the defendants, respondents.
April 20, 1909. Wendt J.—
The plaintiff, alleging, that Don Peduru was on certain specifieddeeds the owner of an undivided three-fourths of a parcel of land,
1909.April 20.
and Mr. Justice Wendt.
Cur. adv. vutt.
1 (1902) 5 N* L. R. 369.
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avers that upwards of forty years ago the land was divided, and 1909-that ever since Don Peduru possessed exclusively the southern three- APr^90.fourths. The plaintiff then claims title to this southern block by Wendt J.conveyance dated 1903 from Peduru’s widow (first defendant) andonly child, and alleges prescriptive possession by himself and hispredecessors in title. He specially pleads tL<~ » in case No. 6,619second defendant (sister of first defendant) sued plaintiff and firstdefendant and others for a partition of the land, claiming a share init; that present plaintiff asserted his exclusive title to the southernblock, and that the Court decided that plaintiff was so entitled, and.thereupon dismissed the action.. Plaintiff accordingly pleads thathis title is res. judicata against the defendants. Ther defendants inanswer deny the steps of plaintiff’s title, and deny that the formerdecree estops them.
The issue agreed upon and tried was whether “ the defendantswere barred by the judgment in case No. 6,619 from setting up anyclaim to the land in question,” meaning, of course, the southernblock claimed by plaintiff. The learned District Judge answeredthis issue in the negative.
. “The dismissal of the'partition action,” hesaid, “ cannot possiblybe construed as a decree in favour of the present plaintiff. Itconfers no right upon him against the second defendant, and muchless against the first defendant. The Court merely refused to granta partition. It gave no absolute judgment on the respective rightsof the various parties in the land. Under case D. C., Kegalla, 1,168(Fernando v. Menikrala1) it was held that the dismissal of an action forpartition was no bar to the subsequent institution of. an action bythe plaintiff. This being so, it clearly cannot be pleaded as resjvdicata, so as to deprive the present defendants of their right ofdefence.” Now it is trite law that in a partition action the plaintiffs(and each party is practically plaintiff in respect of the interest heclaims) must prove not only their common ownership inter se, butalso a good title as against all others, because the effect of a decreeof partition is to confer an absolute title. Hence a partitionsuit may fail, in spite of proof of the parties’ common ownershipinter se, if the Court is not satisfied that the parties collectively havea good title to the land. Take an instance. A professing to owna block of forest land conveys an undivided half to B, who there-upon brings a partition suit to have the land divided. As betweenA and B they are clearly entitled to a moiety each. But the land'isforest, and presumably Crown property under the Ordinance No. 12of 1840, and the Court therefore requires proof rebutting the presump-tion. Such proof not being produced, the action must be dismissed.
All that the case of Fernando v. Menikrala decided, as I understandit, is that if this latter ground is the reason of the dimissal, withoutadjudication on the parties’ rights inter se, the dismissal will not be1 (1902) S L. R. 369.
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1909.
April 20.
Wendt J.
a bar to an ordinary action for a declaration .of title. It did notdecide that if the Court on the evidence held that as betweenthemselves A and B in the illustration I gave were owners in equalshares, but refused a partition for want of proof that both togetherwere absolutely entitled against all the world, neither party couldafterwards rely on the express judicial determination of their rightsas estopping the other from litigating the title over again. Thelearned District Judge, in my opinion, does not correctly state thescope of the judgment in case No. 6,619. It discussed exhaustivelythe title of the parties before the Court, and said not a word imply-ing that any person not joined was entitled to any interest. On thecontrary, it proceeds on the basis that thaparties amongst them areabsolutely entitled as against the world, but coming to their rightsinter se expressly holds that tenth defendant (present plaintiff) andhis predecessors in title has been in the exclusive possession of thedivided three-fourths in question for some forty years. The actionfor partition was therefore dismissed, because as amongst the partiesto the suit (present defendants being two of them) the Court foundthe present plaintiff to be the exclusive owner of the land describedin the present plaint. The question of title was undoubtedly inissue in that action, and section 207 of the Civil Procedure Codeconstitutes the title as then declared a res judicata, which cannotbe litigated afresh amongst the parties.
In my opinion the appeal must be allowed and judginent entereddeclaring plaintiff entitled to the land, and ordering that defendantsbe ejected therefrom. Plaintiff’s estimate of his annual profits isnot traversed, and he will therefore have Rs. 100 as damages accruedup to this date, together with a further sum reckoned at the rate ofRs. 60 per annum from this date until he is given possession. Thedefendants will pay plaintiff’s costs in both Courts.
Hutchinson C. J.—I concur.
Appeal allowed.