SHELTON DE SILVAV.CHARLES DE SILVACOURT OF APPEAL
S B GOONEWARDENE J. AND
C A. 637/79IF) D C PANADURA 12983/LMARCH 28.1988
Res fucficata — Paper title and prescription — Same plaintiff suing on MOdiffering titles.
The plaintiff sued his brother the defendant for declaration of title and recoveryof possession of certain premises in Case No 11525. The plaintiff had howeverbefore the institution of the action sold the premises to one Jefferjee on DeedNo 194 of 19.8 1954 subject to the condition that he had a right to obtain areconveyance of the said premises within six months. The plaintiff failed toobtain the reconveyance within the time limit. Vet when the action No 11525was pending by two .deeds No 39 of 21 7.71 and No. 1513 of-3.5.1972 theplaintiff obtained the reconveyance On 5.9.1972 the plaintiff's action wasdismissed on the ground that he had no title at the time the action was institutedand he had failed to prove prescriptive possession independent of the paper titlehe had parted with. The plaintiff then filed the present suit No. 12983/L for thesame premises on his title on Deeds 69 and 1513 and the defendant pleadedres judicata
(1) The Media on which the plaintiff now seeks a declaration of title aredifferent from the media on which he based his title in the earlier case Thecause of action is different
(2) Prescriptive title has to be re considered on the basis of the newcharacter m which the plaintiff figures in the second action Plaintiff would havepassing to him whatever title by prescription which Jefferjee had and this differsfrom the prescriptive title he claimed in the earlier case.
Cases referred to
Oingm Memka v. Puncht Mahatmaya 13 NLR 59
Lowe v Fernando 16 NLR 398
Charles v. Mohammed 25 NLR 233
APPEAL from Judgment of the District Court of Panadura
H L de Silva PC with Cecil de $. Wijeratne and L. N. A de Silva forplamtiff-appellant
£ D. Wickremanayake for defendant-respondent.
Cur adv. vult.
May 24. 1988
S. B. GOONEWARDENE, J.
This is an appeal from a judgment dismissing the plaintiff-appellant's action in the District Court, consequent upon ananswer adverse to him to a preliminary issue raised at the trial.
The action was one intended to obtain a declaration of title toand possession of a property described -as a portion ofEtambagahawatte. The plaintiff who sued his brother thedefendant to obtain this relief had filed an action earlier againsthim bearing No. 11525 seeking like relief, and by a judgmentdated 5th September 1972 the District Judge had dismissed thataction.
At the trial of the present action which was instituted on the23rd of May 1972 (that is before the judgment in the earlier casewas delivered) an issue numbered as 2 was raised and it readsthus:—
"(2) Is the decree in case No. 1 1525 of this. Court resjudicata between the parties?-'.
This was taken up as a preliminary issue, answered in theaffirmative and consequently the plaintiff's action was dismissed,resulting in this appeal.
At the hearing before us Counsel for the plaintiff drewattention to the judgment in the earlier case No. 11525 whichhad been produced. Upon a reading of that judgment it is to beobserved that the basis for the dismissal of that action was thatat the time of its institution the plaintiff had no title. By deed No.194. of 19th August 1954 (which was before the institution ofthat action) the defendant had conveyed the property to one A. I.Jefferjee by way of a conditional transfer, the condition beingthat he had a right to obtain a reconveyance of the same withinsix months. That, the plaintiff failed to do. so that at the time ofinstitution of that action the paper title was in Jefferjee. Howeverit would appear that while that action was pending, upon twodeed Nos. 69 of 21.7.1971 and 1513 of 3.5.1972. Jefferjeeconveyed the property back to the plaintiff. At the trial of theearlier action there was an issue raised which reads thus:—
"(1)ls the plaintiff the owner of the land and premisesdescribed in the schedule to the plaint
on the title pleaded in paragraph 2 to 8 of the p aintand
also by prescriptive possession?"
In addition there was issue No. 14 which reads
(14) In as much as the plaintiff admits' that he wasdispossessed in 1966 in paragraph 10 of the plaint did the
plaintiff have a sufficient period of time to haveprescribed to the said land?
The approach of the District Judge in action No. 11525appears to have been to consider whether at the time of itsinstitution'the plaintiff had title and if not what the effect of thatwas. This is demonstrated by the fact that after the evidence, andbefore the delivery of his judgment, the District Judge himselfframed two issues.
Did the plaintiff have title to the land at the time ofinstituting this action?
If not can the plaintiff file this action?
He answered both limbs of the issue as to paper title andprescriptive title of the plaintiff in the negative, as also issue No.14. It is convenient to state here that in my view that must beunderstood to mean that as at the time of institution of the actionon 4th May 1969. firstly, the plaintiff had no paper title becausehe had parted with that by his deed of 1954 to Jefferjee and.secondly, that he had not prior to the institution of the actionacquired a title by prescriptive possession independent of thepaper title he had parted with.
At the hearing before us it was argued by Counsel for theplaintiff-appellant that the District Judge was wrong in hisanswer to the issue of res judicata and that it should have beenanswered me other way. He therefore submitted that this Courtshould do that in appeal and send the case back for furtherhearing. He relied upon the judgment in two cases, namely.Dingiri Menika v. Punchi Mahatmaya (1) and Lowe v. Fernando
as supporting his contention that the expression 'cause ofaction' imports a dependence on the media upon which theplaintiff asks the Court to arrive at a conclusion in his favour,and. if I understood him correctly, such media stood different inthe earlier case from the present one inasmuch as in the latterthe title relied upon by the plaintiff was that directly derived fromJefferjee. which was not the position in the earlier case.
I think the point is well taken and indeed Counsel for thedefendant-respondent conceeded its correctness whichtherefore requires no further consideration. Counsel for therespondent however added that the issue of res judicata had atwo fold effect which was. firstly with respect to paper title and.secondly with respect to prescriptive title. He submitted thatalthough in law the plaintiff may be entitled to succeed in appealon the paper title aspect, the defendant should have reserved tohim the liberty at the further trial, upon the cqse going back tothe Oistrict Court, to put in issue the plea of res judicata on theprescriptive title aspect of it. His argument was that the findingswith respect to the prescriptive title aspect were against theplaintiff and thus favourable to the defendant and that the benefitof these findings must continue to be available to the defendantto be utilised in the form of a plea of res judicata to be put inissue. Such a reservation can be justified only on the basis thatthe District Judge decided the issue of res judicata on theaspects both of paper and prescriptive title or at least on theaspect only of paper title. If on the other hand the District Judgedecided the issue on the aspect of prescriptive title only (as J willendeavour to show he did), to accede to the claim to make thisreservation means that the case will be placed once again whereit was at the commencement of the trial and the whole questionremains open to be agitated all over again. Starting with thewritten submissions tendered to the District Judge by thedefendant. I do not see anything there to show that he wascontending that the decision in the earlier action on the papertitle aspect of the case set up by the plaintiff operated as resjudicata. The entire submission of the defendant had been on theprescriptive title aspect of the earlier finding, so that if thereservation asked for is allowed, the defendant will be at libertyonce again, that is for the second time, to urge the identicalquestion, a process in my view neither desirable nor permissible;and the basis of allowing this appeal would then be as if thedefendant had succeeded in the District Court upon a contentionthat the paper title aspect operated as res judicata which in theevent was not so.
The reasoning adopted by the District Judge has been that thetwo cases are in respect of the same property between the same
parties and in the same capacities and that the fact that the sameplaintiff in doth cases acquired new title during the pendency ofthe former case did not alter the complexion of the case. Havingadverted to the issues I referred to in the earlier oese as to theplaintiffs paper and prescriptive title ancf as to whether theplaintiff had had a sufficient period of time since hisdispossession in 1966 to have acquired a prescriptive title andthen to the answers to such issue in the negative, he (the DistrictJudge) has gone on to state thus:— 'Therefore it is understoodthat the matter of prescriptive possession relating to the samecorpus has been finally decided and this matter cannot beagitated afresh under a new title obtained during the pendencyof an action relating to the same matter. A comparison betweenthe prayer in the concluded case No. 11525 and the plaint in thepresent case will show the action as one and the same".
I confess that I am unable to comprehend fully the thinking ofthe District Judge. If by reason of the reference to the two casesbeing with respect to the same subject matter between the sameparties and in the same capacities one were to think that he wasdealing with the paper title aspect of the issue of res judicata, formyself I do not find, apart from this bare statement, any processof reasoning that would justify the belief that he was. I ratherthink, on a fair reading of his judgment, that the District Judgeheld that only the findings in the earlier case as to theprescriptive title set up by the plaintiff, are those that constitutethe earlier judgment res judicata between the parties. Stated inanother way it is not wrong I think to say that the District Judgeconsidered only the prescriptive title aspect of the issue.
It therefore becomes necessary to examine the prescriptive titleaspect of the issue of res judicata and deal with it here because ifit is found that such aspect as been correctly decided, then thefindings of the District Judge upon the issue must be affirmedand the appeal must fai|. If on the other hand it has not beencorrectly decided, then the issue must be answered here theother way unconditionally and without reservations and the casemust go back for further hearing on the other issues. In short the*whole issue raised must be considered and dealt with here.
The District Judge in the earlier case No. 11525 arrived at thefollowing findings: that the defendant had been in occupation ofthe premises from 1956 till May 1962 but that that could not becounted for the purpose of prescription because he was livingwith his mother (also the plaintiffs mother) who had beenpermitted by the plaintiff to live in these premises; that from 16thMay 1962 to 31st May 1962 the defendant was away in India.during which period the plaintiff took advantage of his absenceand took their mother elsewhere and having disconnected theelectricity supply decided to take possession but that thedefendant on his return from India forcibly took possession ofthe house; that the defendant's occupation prior to his departurewas permissive under the mother while the period after his returnfrom India was adverse: that the plaintiff did not have possessionwhich would entitle him to set up a prescriptive title independentof any paper title which at the time of the institution of the actionwas in Jefferjee and that the plaintiff had not acquiredprescriptive title. had (vide section 3 of the Prescription Ordinance and also thecase of Charlis v Mohahamed (3) unencumbered in any way bythe judgment in the earlier case and unaffected by any findingsadverse to the plaintiff either with respect to paper title or withrespect to prescriptive title. If that be so with respect to X it mustbe so with respect to the plaintiff who is in no different a positionfrom 'X' and neither the paper title aspect nor the prescriptivetitle aspect of the findings in the earlier case would operate asres judicata. The fact that the plaintiff in the earlier casehappened to be the same person as the plaintiff in the presentcase is from the stand-point of this issue irrelevant and thematter I think should have been examined in that way. TheDistrict Judge was in error in answering this issue numbered 2 inthe affirmative and the correct answer to that must be consideredto be in the negative. The case will go back for trial on the otherissues but the District Judge will not permit any further issuesbased upon the plea of res judicata although no doubt thedefendant will be entitled to use any of the findings in the earliercase advantageous to him. in any other manner permitted by law.The issues numbered 1.3, and 4 which had been raised at thetrial dealt with the question of the requirement of a ConciliationBoard certificate. These issues were answered against thedefendant but there has been no appeal therefrom. The answersgiven by the District Judge to these issues will therefore standand will not be considered again at the further trial. Subject tothese directions the District Judge will be at liberty to himselfframe or adopt upon the suggestion of parties any other issuesthat he might consider necessary for a proper adjudication of theother matters in dispute in the case.
The defendant will pay the plaintiff-appellant his costs ofappeal.
VIKNARAJAH.J — I agree
Case sent back for trialto be continued as directed.