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Present: Ismail, J., Sharvananda, J. and Ratwatte, J.SELESTINA FERNANDO, Appellant and CYRIL FERNANDO andANOTHER Respondents.
S.C. 67/72 (F) – D. C. NEGOMBO 1289/L
Res judicata – Right or title accruing subsequent to institution of action – Applicability ofprinciple of res judicata – Civil Procedure Code, Sections 33, 34 and 207.
Plaintiff instituted this action for a declaration that she is entitled to the land calledKahatagahawatta on a chain of title through which the plaintiff’s predecessor in title viz.Luke Fernando bought same on deed No. 168 dated 26.06.47 from Dias Gunasekera. LukeFernando thereafter, conveyed the land by Deed No. 2795 dated 26.12.63 to the Plaintiff.
The 1st and 2nd defendants filed answer pleading that this same land was the subject-matter in D.C. Negombo Case No. 15556 and that the decree entered in that case was resjudicata as between them. In that case the plaintiff was Luke Fernando and the defendantswere the present defendants. The plaint in that case was filed on 11.05.47 and the chain oftitle was different.
The District Judge upheld the plea of res judicata.
SHARVANANDA, J. – Fernando v. Fernando
HELD, A plea based on facts which did not exist at the time of the former action butwhich came into existence subsequently cannot be said to be one which could have beenraised in the former action. If a right accrues after the institution of a suit the plaintiff is notbound to put in issue that right the moment it accrues to him.
The doctrine of res judicata applies only to matters which existed at the time of theinstitution of the action.
Hence though Luke Fernando had, at the time of the judgment in D C. NegomboNo. 15556 dated 16th May 1951 been vested with the title set out in the plaint in thepresent action, the rule of res judicata did not bar him from reagitating the title to the landon the basis of the new acquisition.
The plea of res judicata cannot be upheld.
.^^.PPEAL from a judgment of the District Court of Negombo.
Nimal Senanayake with Eric Rajapakse for plaintiff-appellant.
J. W. Subasinghe with Miss M. Kalatuwana for 1st and 2nd defendant-respondents.
Cur. adv. vuli?
February 9, 1977, SHARVANANDA, J.-
The plaintiff-appellant instituted this action for a declaration that she isentitled to the land called ‘Kahatagahawatta’ fully and particularly describedin the schedule to the plaint. She alleged that the land is depicted as Lots 1and 2 in Plan No. 1009 marked ‘X’.
The 1st and 2nd defendants-respondents filed answer denying theplaintiff’s claim and stated that the land described in the schedule to theplaint is identical with the land described in the schedule to the plaint in D.C.Negombo Case No. 15556 and that the decree entered in that case was resjudicata as between the parties.
The case proceeded to trial on the following issues which were answeredby the trial Judge as follows:—
1. Is the plaintiff entitled to the land described in the schedule to theplaint now depicted as Lots 1 and 2 in Plan No. 1009 filed of recordmarked ‘X’ on the chain of title set out in the plaint?
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Is the land described in the schedule to the plaint identical with theland depicted in Plan No. 1009 dated 14.6.68 filed of record in thiscase?
Is the land described in the schedule to the plaint identical with theland described in Schedule II of the plaint in D.C. Negombo Case No.15556?
If so, is the decree entered in that case res judicata?
The District Judge, accordingly, dismissed the plaintiff’s action withcosts.
The plaintiff in Case No. 15556 was one Luke Fernando, the predecessor-in-title of the plaintiff in this case. The 1st and 2nd defendants in this casewere the defendants in that case. The plaint in that case was filed on 11.5.47on the basis that one Moses Fernando was at one time entitled to the twopieces of land described in the schedule to that plaint and that on the saidMoses Fernando dying intestate, his heirs, by deed No. 13 of 11.9.29, soldand conveyed the premises to one Andrew Fernando who by deed No. 1508of 1.3.45 sold and conveyed the premises to Luke Fernando, the plaintiff.The defendants in that case admitted that the original owner was MosesFernando, but stated that his title had devolved on them by deeds No. 7974dated 12.7.48 and No. 2466 dated 5.4.41. After trial, decree was entered inthat case dismissing the plaintiff’s action with costs on the ground that thetitle of Moses Fernando had not devolved on him as claimed by him.
The main defence in that case was that deed No. 13 of 11.9.29, by whichMoses Fernando’s intestate heirs purported to sell and convey the premisesin suit to Andrew Fernando, the vendor of Luke Fernando, was not the actand deed of the said heirs and was never acted upon by the parties and thatneither Andrew Fernando nor the plaintiff ever had possession of thoselands. The defendants claimed that the title of Moses Fernando had, on thedeeds referred to in their answer, vested in them. By his judgment dated16.5.51 the District Judge accepted the defence and dismissed the plaintiff’saction.
The plaintiff in the present case asserts a chain of title different to thatpleaded by the plaintiff in D.C. Negombo Case No. 15556. She pleads thatone Justina Fernando and her husband Gabriel Silva, upon deed No. 9703dated 4.3.18, the original owners of the land and premises described in the
SHARVANANDA, J. – Fernando v>. Fernando
present plaint and that they had mortgaged the said land by bond No. 7264dated 30.6.30 and the said bond was put in suit in C.R. Colombo 5519. Interms of the hypothecary decree entered in that case, the land was put up forsale and purchased by Dias Gunasekera, the judgment-creditor, upon Fiscal’sconveyance No. 199988 dated 28.2.47. Thereafter, Luke Fernando boughtsame on deed NoV. 168 dated 26.6.47 from Dias Gunasekera. Luke Fernandohas thereafter conveyed the land by deed No. 2795 dated 26.12.63 to thepresent plaintiff.
While the defendants claim that the land described in the schedule to theplaint in this action is identical with the land described in the schedule II ofthe plaint in D.C. Negombo 15556, the plaintiff contends that the lands aretwo different, defined allotments of ‘Kahatagahawatta.’
Even accepting the contention of the defendants about the identity of theland in dispute, one notes that the title pleaded in action No. 15556 isdifferent to the title pleaded in this case. The title pleaded in the earlier casewas that of Moses Fernando and his heirs, while the title pleaded in thepresent action is that of Justina Fernando and her husband Gabriel Silva andtheir heirs. At the time, viz. 11.5.47, when Luke Fernando instituted actionNo. 15556, he had not acquired the title pleaded by the plaintiff in thisaction. The title was acquired by him only on 26.6.47 after the institution ofaction No. 15556. The question then arises whether the present plaintiff, whois a privy of Luke Fernando is entitled to advance in this action her claimbased on the new title, or whether the dismissal of the earlier suit operates tobar the maintenance of such claim.
Section 33 of the Civil Procedure Code provides, that “every regularaction shall, as far as practicable, be so framed as to afford ground for a finaldecision upon the subject in dispute and so to prevent further litigationconcerning them.” In terms of this section, when a plaintiff brings an actionfor land, he must set out every title by which he claims to be entitled to it atthe time of the action. If he omits to plead any title on which he might haverelied in that action, he is debarred from setting up such title in a subsequentaction. A second suit based on a different title which though existing at thedate of the institution of the actipn, was not put in issue in the earlier action,cannot be brought. Section 33 is complementary to section 34(1) whichprovides: “Every action shall include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action . . .’. This rulerequires that every suit shall include the whole of the claim arising from oneand the same cause of action, and not that every action shall include everyclaim on every cause of action which the plaintiff may have against the
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defendant. The whole of the claim which the plaintiff is entitled to make inrespect of the cause of action in this rule means the entire claim which theplaintiff has against the defendant at the time the action is brought in respectof that cause of action. Our law of res judicata, as laid down in section 207of the Civil Procedure Code, further stipulates that “every right of property . . .which can be claimed, set up, or put in issue between the parties to an actionupon the cause of action for which the action is brought, whether itbe actually so claimed, set up, or put in issue or not in the action, becomes,on the passing of the final decree in the action, a res judicata, which cannotafterwards, be made the subject of an action for the same cause of actionbetween the same parties.” Thus, section 207 makes a decree conclusive notonly as to matters actually pleaded, put in issue and tried and decided, butalso to matters and grounds which, according to the existing rules ofprocedure, should have been pleaded, tried and decided. For example,where a person has title to a piece of land from two sources X and Y if heputs in issue X only and is defeated, he cannot, afterwards in a subsequentaction, sue the defendant on title Y; or, if he is sued in ejectment, he cannotset up title X only and when beaten he cannot thereafter assert title Y againsthis adversary. It is the plaintiff’s duty to assert, in support of his claim, allgrounds of attack that existed at the time of the institution of the action. Notonly should the whole of the claim which had arisen, at the date of theaction, but the cause of action be included in the suit so as to avoid thesplitting up of claims arising out of one and the same cause of action, butevery ground of attack and defence which could and ought to have beenadvanced in support or in defence of the claim should be put in issue andwould be deemed to have been adjudicated upon, whether it was actuallyurged or not against the person who was entitled to raise it. But, where aparty could not have raised a ground of attack or defence, this rule ofconstructive res judicata will not apply. A plea based on facts which did notexist at the time of the former action, but which came into existencesubsequently, cannot be said to be one which could have been raised in theformer action, thus ‘A’ brings an action against ‘B’ for declaration of his titleas owner of Blackacre and the action is dismissed on the ground that ‘A’ isnot the owner. At the time of the action, ‘A’ was in adverse possession of theland, but had not acquired title by prescriptive possession. After dismissal ofthe suit, if he perfects his title by adverse possession and subsequently sues‘B’ again on the basis of his newly acquired prescriptive title, the action isnot barred as the cause of action in the subsequent suit is based on facts notin existence at the time of the former action. A plaintiff who acquires a freshright or title during the pendency of his action or thereafter can thus bringanother action and is not bound to rely on the new right or title in the actionthat is pending then. The reason is that in such a case the litigation under a
SHARVANANDA, J. – Fernando v. Fernando
title different to that of the former suit, which title was not available to him atthe time of the institution of the earlier action. On that ground the subsequentaction will not be barred by res judicata. If a right accrues after theinstitution of a suit, the plaintiff is not bound to put in issue that right themoment it accrues to him. An amendment of the plaint would be necessitatedif he wants to do so, and the Court might or might not allow the applicationfor amendment. As a general rule, such an application would have beenrejected on the ground that the rights of parties must be determined as at thecommencement of the action – Silva v. Fernando.' As Sansoni, J. stated inKandappa Chettiar v. Janakiammah1 * “Where a plaintiff claims to be entitled,as trustee, to a land and seeks to eject a trespasser, he will not be entitled torely on a vesting order unless he has obtained such vesting order prior to the. filing of the action. If the legal estate was not in him at the commencementof the action, no vesting order obtained subsequently will cure the initialwant of title.” This passage was quoted with approval by the Court of Appealin Balasunderam v. Rama.3 A party claiming a declaration of title must havetitle in himself when he institutes the action. “In order to sue in a reivindicatio action, the plaintiff must, at the time of the action, have the rightof ownership actually vested in him. – vide Nathan on Common Law SouthAfrica vol. I p. 393; s. 593. Subsequent acquisition, even though during thependency of the action, will not cure the defect. In De Silva v. Goonetileke4,it was held that “Where an action rei vindicatio had been instituted in respectof a property which had been vested, for non-payment of taxes, in'theMunicipal Council by virtue of a vesting certificate issued in terms of section146 of the Municipal Councils Ordinance, the plaintiff could not maintainthe action even though the Municipal Council, on being added as a party,expressed its willingness to transfer the property to the party declaredentitled thereto by Court.” Thus, in a rei vindicatio action, the plaintiffcannot invoke a right acquired by him during the pendency of an action. -see Kaddubawa v. Shanmugam.s In view of this rule, the new title averred bythe plaintiff-appellant in the present action could not have been a ground ofattack in the earlier action No. 15556 and hence no rule of res judicata couldstand in the way of the plaintiff reagitating that question of ownership of theland on the basis of the new title.
Further, it is a fundamental requirement of the doctrine of res judicata thatthe matter in issue in the two suits should be the same. There can be noeadem quaestio, and therefore no estoppel by res judicata, unless everythingin controversy in the proceedings where the question of estoppel is raised
1 (1913) 15N.L.R.499P.C.' (1960) 62 N.L.R. 447 et 450..
’ (1974)76N.L.R. 289.' (1931) 32 N'L.R. 217 D.B.
1 (1953) 54 N.L.R. 467.
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was also in controversy in the litigation which resulted in the judicialdecision relied upon as estoppel. The new title was not in controversy in theearlier proceedings in D.C. Negombo No. 15556 and was not adjudicatedupon. Since there was no adjudication, the doctrine of res judicata, in thestrict sense of the term, does not apply. Also, no rule of constructive resjudicata applies as the newly acquired title could not have been put forwardin the earlier suit. As explained earlier, this rule requires a man, suing forland, to put forward only the title of which he was possessed at the timewhen the suit was brought, but not title acquired subsequently. The new titledid not belong to the subject of the earlier litigation. Since the issue in theinstant proceedings is not eadem quaestio as that decided in the earlier actioncovering the dispute, there is no judgment or determination by a competentCourt giving rise to any estoppel by res judicata.
In the case of Kalu Banda v. David Appuhamy,6 it was held that a decreeentered in favour of the plaintiff in an action for a declaration of title to adivided portion of land consisting of certain lots cannot operate as res judicatain another similar action between the same parties in respect of the same landbut in respect of a different lot, the title to which was acquired by the defendantfrom a third party subsequent to the decree in the earlier action. The principleunderlying that decision is that where though the action may relate to the samesubject-matter but the cause for claiming is not the same, the bar of resjudicata does not operate. – see also Vivekasirenmany v. Ramasamy.1 Thisprinciple applies even where the plaintiff acquired the new title prior to thedecree in the earlier action, but subsequent to the institution of that action. Inthe case of De Silva v. Wijeratne", it was held that “although a purchaser ofproperty at a Fiscal’s sale is not competent before he obtains the Fiscal’sconveyance, to make a claim under section 243 of the Civil Procedure Code,the order disallowing his claim, if he makes any, is only res judicata withregard to his interest at the date of seizure and is no bar to any assertion of titleby him or his successor-in-title under the Fiscal’s transfer.” In the case ofCooray c. Jayewardene,9 it was held that “failure of the plaintiff to include aclaim upon a cause of action which arose after the institution of an action,although upon the same subject-matter, is no bar to the institution of asubsequent action upon such claim.” The cause of action upon which thepresent action was founded was not in existence at the time of the institution ofthe first action and could not have been the subject of litigation in that action. Ido not think that an issue as to damages, consequent on an ouster which tookplace after the institution of the first action, could have been entertained by theCourt in that action. The Court could only have decided the rights of the partiesas at the date of the action.” – per Jayatileke, J. at p. 428.
(1965) 56 N.L.R. 162.
(1945)46 N.LR. 560..
’ (1966) 69 N.LR. 436.’ (1943) 43 N.LR. 427.
SHARVANANDA, J. – Fernando v. Fernando
In the case of Newington v. Levy,'0 Blackburn J. said: “I incline to thinkthat the doctrine of res judicata applies to all matters which existed at thetime of the giving of the judgment, and which the party had the opportunityof bringing before the Court.” Under our rules of procedure, this observationcan apply in its totality only to a defendant in a rei vindicatio action, but notto a plaintiff in such an action. As was held in Banda v. Karohamy," “Adefendant is bound to set up by way of defence every ground available tohim not merely at the date of the institution of the action, but accruing to himthereafter and prior to judgment.” For, in an action rei vindicatio, where theplaintiff loses title to the land subsequent to the institution of the action, it isopen to the defendant to establish the fact of such loss of this title on the partof the plaintiff and to have the action for declaration of title and ejectmentdismissed. – Elishamy v. Punchi Banda.'1 But, where the plaintiff in an actionrei vindicatio acquires title to a land subsequent to the institution of theaction, but before judgment, he will not be entitled to plead the benefit-ofsuch acquisition in that action as he cannot succeed on the strength of a titleacquired after the commencement of the action. Thus, in the case of aplaintiff in a rei vindicatio action, the doctrine of res judicata applies only tomatters which existed at the time of the institution of that action. Hence,though Luke Fernando had, at the time of the judgment of D.C. NegomboNo. 15556, viz. 16th May 1951, been vested with the title set out in the plaintin the present action, the rule of res judicata did not bar him from reagitatingthe title to the land on the basis of the new acquisition. The plaintiff, who ishis privy, is also thus not estopped from litigating.
For the reasons set out above, the District Judge’s answer to the issue ofres judicata cannot be sustained. He has dismissed this action mainly on theground that the plaintiff is bound by the plea of res judicata, and had notexamined the other questions about the identity of the land and the validityof the plaintiff's title as pleaded by her. The issue of res judicata has to beanswered in the negative. I set aside the judgment of the Lower Court andremit the case for a trial de novo. It may be because of the view held by thedefendants about the soundness of their plea of res judicata that they did notraise the issue of prescription. It will be open to the parties to amend theirpleadings or to raise other issues, except the issue of res judicata, involved inthe action. The costs of the abortive trial and of this appeal will be costs inthe case.
Ismail, J. -1 agree.
Rat watte, J. -1 agree.
Judgment set aside and case sent back for trial de novo.
10 6 L.R.C.P. 180 al 193." (1949)50 N.L.R. 369.
I! (1912) I4N.L.R. 113.