Sobhitha Rajakaruna J.

The Plaintiff- Respondent-Respondent (‘Plaintiff’) filed the Partition Action No. P/273 in the District Court of Badulla against the Defendants-Respondents-Respondents (‘Defendants’), including the 2^nd Defendant- Petitioner-Appellant (‘2^nd Defendant’). The Plaintiff's late father had filed a Partition Action bearing No. P/9298 (‘1^st Partition case’) previously in the District Court of Badulla and sought to partition the same land, which is the corpus of the 2^nd Partition case bearing No. P/273 (‘2^nd Partition case’). The 1^st Partition case (‘P/9298’) was dismissed by the District Court on the basis that the pedigree had not been proved and the corpus had not been identified. Upon an Appeal lodged against the said Judgement, the Court of Appeal affirmed the said Judgement of the District Court.

The Plaintiff instituted the 2^nd Partition case (‘No. P/273’) in the same District Court only after the said dismissal of the 1^st Partition case. In the said case, the District Court initially considered the matter based on the principle of res judicata, and the primary question was as follows: “Can the Plaintiff maintain the action on the principle of res judicata in view of the Judgement in case No. P/9228 which has been recorded as an admission by the parties to the action?”. The District Court, delivering its Order, dismissed the plea of res judicata raised by the said 2^nd Defendant and fixed the case for further trial. The 2^nd Defendant filed a Leave to Appeal application against the said Order of the District Court, and accordingly, the Provincial High Court of the Uva Province holden in Badulla (‘High Court’), exercising civil appellate jurisdiction dismissed such Application, affirming the Order of the District Court.

Being aggrieved by the said Order of the High Court, the 2^nd Defendant instituted these proceedings seeking to get both Judgements in the High Court and the District Court varied. This Court granted Leave to Appeal as per the contents of paragraphs 18(c), 18(d) and 18(e) of the Petition (dated 26.01.2015) of the 2^nd Defendant. Accordingly, the questions can be formulated as follows:

a) Did the learned Judges of the High Court and the learned District Judge fail to correctly apply and/or examine the provisions of Section 75 (1) of the Partition Law?

b) Did the learned Judges of the High Court and the learned District Judge fail to correctly apply and/or examine the provisions of Section 207 of the Civil Procedure Code?

c) Did the learned Judges of the High Court and the learned District Judge err by holding that the previous action bearing No. D.C. Badulla P/9298 had not been dismissed on the merits when in fact the said action was dismissed inter alia on the basis that the Plaintiff had failed to establish his title at the conclusion of a lengthy trial?

The broader question that needs to be resolved by this Court is whether a plaintiff in a partition action can initiate a fresh partition action if their initial action was dismissed after trial due to failure to prove title and identify the corpus.

The primary contention of the 2^nd Defendant is that the learned Judges of the High Court and the learned District Judge failed to apply correctly and/or examine the provisions of Section 207 of the Civil Procedure Code and Section 75(1) of the Partition Law. Apart from the emphasis placed in the Evidence Ordinance on the doctrine of res judicata, the Civil Procedure Code too has placed substantial emphasis on the necessity for the operation of the said doctrine concerning the procedure on civil litigation, specifically in Sections 24, 207 and 406 of the Civil Procedure Code.

The said Section 207 declares that ‘all decrees passed by the court shall, subject to appeal, when an appeal is allowed, be final between the parties; and no plaintiff shall hereafter be non-suited’. Whereas Section 75(1) of the Partition Law stipulates that ‘the dismissal of a partition action in respect of any land under section 9, sect