010-NLR-NLR-V-39-WIMALASEKERE-v.-DINGIRIMAHATMAYA–et-al.pdf
1937
Wimalasekere v. Dingirimahatmaya.
25
Present: Abrahams CJ. and Maartensz J.WIMALASEKERE v. DINGIRIMAHATMAYA et al.
317—D. C. Ratnapura, 6,011.
Res judicata—Action for declaration of title—No order for possession—Subsequent action for ejectment—Interruption of possession—Claim forcompensation for improvement—Jus retentionis.
A successful action for declaration of title to land is an interruptionof defendants’ adverse possession of the land.
Where the plaintiff in an action rei vindicatio obtained a declarationof title but no decree for possession was entered in his favour,—
Held, that he was not debarred from obtaining a decree for possessionin a subsequent action for ejectment.
Held further, that the defendant was not precluded by the decreein the former action from claiming compensation for improvements anda jus retentionis in the action for ejectment.
Appuhamy v. Banda (16 N. L. R. 203) followed.
T
HIS was an action for declaration of title to certain blocks of land,for a decree of possession, and for ejectment. The plaintiff-
appellant had instituted another action, earlier, against the samedefendants, and had been declared entitled to the block in dispute, buthe had omitted to pray for a decree of possession. A subsequentapplication for'an order of possession having been refused, he institutedthe present action.
The learned District Judge dismissed plaintiff’s action, on the groundthat the defendants had acquired title by prescription, and also that thedecree in the previous action operated as res judicata. With regardto the alternative claim of the defendants for compensation for improve-ments, he held that the first defendant was entitled to compensationand the jus retentionis.
V. Perera (with him S. W. Jayasuriya), for plaintiff, appellant.—At the time the previous action was instituted, defendants had notbeen in possession for ten years. That action interrupted the runningof prescription, so the period between that action and the institutionof the present action cannot be taken into account for the purpose ofproving title by prescription. A successful action for declaration of titleinterrupts prescription (Ernanis v. Sadappu ’). On the question of resjudicata, the cause of action is entirely a new one, which accrued tothe plaintiff subsequently. Defendant’s possession is a continuing causeof action, and plaintiff is entitled to institute a separate action inrespect of each day’s possession.
N. E. Weerasooria (with him A. E. R. Corea) for defendant, re-spondents.—When the present action was instituted, the defendantshad been in possession for over ten years. The previous action didnot interrupt the running of prescription. On the contrary it strength- .ened the defendant’s position, inasmuch as they. remained in adverse
1 > X. L. R. 361.
26' MAARTENSZ J.—Wimalasekere v. Dingirimahatmaya.
possession in spite of the decree against them. Further, the plaintiffomitted to sue for possession in the previous action. He cannot bringa second action in respect of a claim which he should have made in theprevious action, but omitted to make, whether purposely or by anoversight. (Sections 34 and 207 of the Civil Procedure Code.) Theplaintiff has not proved an ouster by the defendants subsequent to theprevious action, and therefore no cause of action has arisen to theplaintiff since then. In any event, the defendants have effectedimprovements on the land, and are entitled to compensation and thejus retentionis. The defendants should be given the opportunity ofproving their claim to compensation. Counsel cited Siman Appu v.Christian Appu *, Bandulahamy v. Don Charles
H. V. Perera, in reply.—The claim for compensation could have beenmade in reconvention in the previous action, but that was not done.Defendants are barred from making such claim now.
uCur. adv. vult.
June 14, 1937. Maartensz J.—
The plaintiff-appellant in this action sued the defendants for declarationof title to two parcels of land described in the plan filed of record as lot 6and the western portion of lot 5. The plaintiff’s title to lot 5 was notdisputed and this appeal affects only lot 6. It appears from theproceedings that the plaintiff had brought a previous action No. 4,222of the District Court/'of Ratnapura against the same defendants in whichon January 25, 1923, he was declared entitled to lot 6. The plaintiffhad not prayed for a decree of possession and his application for anorder of possession was refused on the authority of the ruling inVengadasalem v. Chettiyar“. The plaintiff in this action claims a decreefor possession and ejectment.
The defendants pleaded (a) that they had acquired a title by prescrip-tion, (b) that the plaintiff was precluded from setting up a claim forpossession as he had not claimed it in the previous action. In thealternative the first defendant claimed compensation for improvementsand a jus retentionis until that claim was satisfied.
The defendants had been in possession of lot 6 for eight years when actionNo. 4,222 was filed in 1925. The present action was filed in 1934. Theouster in November, 1933, alleged by the plaintiff was not proved. Thedefendants had therefore been in possession for over ten years whenthis action was filed. The learned District Judge accordingly held thatthe defendants had acquired a title by prescription and dismissedplaintiff’s action with costs.
, The first question for decision is whether the defendants’ possessionhad been interrupted by the result of the action No. 4,222.
The District Judge relied on the case’ of Siman Appu v. ChristianAppu4: Certain dicta in that case support the view taken by him.Withers J. said that ‘‘ possession is disturbed by an action intended toremove the possessor ”. Lawrie A.C.J. said “ If the actual physicalpossession has never been interrupted, it matters not that the possessor
’ 1 N. If. R. 288.“ {!!>28) 2!) X. L. R. 44C.
2 Matara Cases 87.' (lSHti) 1. X. L. R. 288.
MAARTENSZ J.—Wimalasekere v. Dingimmahatmaya.27
has been troubled by law suits …. Until they succeed in gettingthe decree of a competent court on which they evict him, his possessionis good as against his opponents ”.
These dicta were obiter to the question in issue and I am not boundby them.
On the other hand the current of authority up to the case of Unambuivev. Junohamy1 was that the institution of an action even if successfulwas an interruption of possession. In the case referred to it was heldthat it did not, and this view was affirmed by Lawrie and Withers JJ.(Bonser C.J. dissenting) in the case of Emanis v. Sadappu=. Bonser C.J.was of opinion that the Court was bound by the previous decisions. Hedid not however express an opinion on the point. –
The converse of the proposition that a successful action does interruptpossession must be inferred from the decisions in the cases reported in2 Cey. Law Rep. 103 and 2 N. L. R. 261 (supra). Pereira J, held in thecase of Bandulahamy v. Don Charles' that possession is not to be takenas disturbed by mere action ; but an action in which a person is con-demned to pay for his possession is an interruption of possession. Thejudgment is a very short one and not very helpful.
I am of opinion, apart from authority, that a successful action fordeclaration of title is an interruption of possession. The decree forcesupon the person against whom it is entered an acknowledgment of title,and if that person continues in possession the possession can only becalculated for the purposes of prescription, from the date of the decree.To hold otherwise would mean that a person who has had adversepossession for say seven years may claim a title by prescriptive possessionif he continues in adverse possession for three years after the decree. Aproposition which stands self condemned.
The respondents however sought to support the judgment on theground that plaintiff is precluded by sections 34 and 207 of the CivilProcedure Code from praying for a decree in ejectment as he omittedto claim it in the earlier action. The cases of Casiechetty v. Cowell *and- Ram Menika v. Dingiri Aminas were cited in support of thisproposition. In the former case the plaintiff having failed in an actionfor declaration of title against him was held to be precluded frombringing an action for a right of way over the same land. In the lattercase the purchaser of property sued her vendor and a third person forpossession; the third person established a right to compensation forimprovements. The plaintiff paid the compensation and brought anaction to recover the amount from the vendor ; it was held that heshould have made his claim in the earlier action. I confess I cannotsee the relevancy of either decision to the question we have to decidein this appeal.
There can be no doubt that the plaintiff could have prayed for eject-ment in the first action and did not do so. In this action he prays fordeclaration of title and a decree for ejectment alleging, a fresh ousterin .November, 1933. If there was such an outster as averred in theplaint the plaintiff would have been entitled to a decree for ejectment
1 (1892) 2. C. L. Rep. 103.1 2 Matara Cose* 87.
– (1S9C) 2 V. L. R. 261.1 (1916) 2 C. IT. R. 2oi.
• (1909) 1 fur. Laic. Rep. 66.
28MAARTENSZ J.—Wimalasekere v. Dingirimahatmaya.
as the cause of action was a new one. But no evidence was led ofsuch an ouster and the trial appears to have proceeded on the footingthat the defendants had continued in possession after the decree.
There was no physical interruption of defendants’ possession and if asuccessful action for declaration of title did not constitute in law aninterruption of the possession which is the view the District Judge took,the plaintiff could not in this action claim a remedy which he could haveclaimed in the previous action as there was no fresh ouster. But I havealready held that the previous action brought by the plaintiff was,as it was successful, an interruption of defendants’ possession. Thepossession after the decree therefore amounted to a fresh ouster. I amaccordingly of opinion that the previous action does not preclude theplaintiff from making a claim for ejectment in this action.
As regards a claim for compensation for improvements Mr. Pererafor the appellant contended that first defendant could not claim it in thisactjon as he had not claimed it in the previous action.
This objection so far as the claim to compensation is concerned is metby authority.
It was held in the case of Appuhamy v. Banda1 that the defendantin a District Court action who had not in reconvention set up a claim forimprovements is not barred from bringing a separate action to enforcethe claim. ,~
The ratio decidendi is I think equally applicable to the claim inreconvention for compensation made by the first defendant in this case.
In the case cited the plaintiff did not set lip a claim to a jus retentionis.Such a claim would I have no doubt have been rejected for a decreein ejectment had been entered against him in the previous action andhe had been removed from possession.
In the present case the first defendant claims a jus retentionis. Ido not see why he should not do so as the plaintiff in his first actionhad not prayed to be placed in possession and it was not necessary toset up a jus retentionis.
The appellant next contended that the first defendant had not provedthat he was a bona fide possessor.
On the day of trial the following issues were framed : —
Is plaintiff entitled to an order for ejectment and possession under
the decree. obtained by him in D. C. 4,222, Ratnapura ?
(1a) If so, what damages is he entitled to? (Damages agreed uponat Rs. 100.)
Is first defendant entitled to compensation for the improvementsmade to the land (lot 6) ?
(2a) What is the value of the compensation ? (Agreed Rs. 125 anacre.)
If so, is he entitled to the jus retentionis until he receives payment
of compensation ?
Are the decree and proceedings in D.. C. Ratnapura, 4,222, res
judicata on the plaintiff’s claim to be placed in possession oflot 6 and to have the first defendant ejected therefrom ?
1 U912) J6 X. L. R. 203.
MAARTENSZ J.—Wimalasekere v. Dingirimahatmaya,
29
Has the first defendant established a right by prescription topossess lot 6 referred to ?
Mr. Peeris also suggests the issue—
(4a) Are the decree and proceedings in D. C. -Ratnapura, 4,222, resjudicata in respect of the defendant’s present claim for com-pensation ?
No evidence was called. The Proctors for plaintiff and defendantsaddressed the Court on the law and judgment was reserved.
The District Judge held that the first defendant had acquired a titleby prescription and went on to hold that first defendant’s “ failure toclaim compensation in the old case further is no bar to his making such aclaim in this case ”. He further said, “ I hold that the first defendantis not only entitled, to claim compensation and the jus retentionis butthat he has acquired title to lot 6 in plan A by prescription
Apparently the only questions discussed at the trial were : (1) whetherthe first defendant had acquired a title by prescription ? (2) whether thedecree and proceedings in D. C. Ratnapura, 4,222, precluded the firstdefendant from setting up a claim to compensation ?
I do not think either side addressed themselves to the question ofbona fides or mala fides. The plaintiff admitted that first defendant hadplanted the land with rubber prior to the institution of action No. 4,222,,and that the rubber was seven or eight years old at the time the planNo. 100 was made (plan No. 100 is marked P1a). The survey accordingto the surveyor’s notes was made in September, 1925—the plan was madefor the purposes of the first action 4,222. The plaintiff would appearto have allowed the first defendant to possess the land for a number ofyears and make the plantation for which compensation is claimed.
In these circumstances I think the first defendant should, be given artopportunity of establishing his right to compensation and to a jusretentionis until the compensation is paid.,
• The part of the decree dismissing plaintiff’s action to lot 6 is set asidennH the case remitted to the' District Court for -determination of thequestion whether the first defendant is entitled to the compensation andjus retentionis claimed by him until he is paid the compensation. AfterHi i« question is determined a decree will be entered declaring plaintiffentitled to lot 6 as described in paragraph 1 of the schedule of the plaintand that the defendants be ejected therefrom and the plaintiff placedin -possession subject if – the Court so decides to the jus retentionis of 'thefirst defendant.
The plaintiff will be declared entitled to the sum of Rs. 100 as damages.
As regards costs the order of the District Court ordering the plaintiffto pay the defendant" half the costs of this action is set aside and theplaintiff is declared entitled to the costs of the action. I Jthink theplaintiff is entitled to those of appeal. The costs of the inquiry regarding:the claim to compensation is left to the discretion of the District Judge.
Abrahams C.J.—I agree.
Set aside/