JAYASINGHE

Vs.

KODITHUWAKKUARACHCHI AND OTHERS

SUPREME COURT
DE ABREW, J.
FERNANDO, J.
SURASENA, J.
SC/APPEAL/09/2014
SC/HC/CALA/60/2010
CP/HCCA/867/2002
DC KANDY 19479/L
MAY 27, 2019

Civil Procedure Code, section 328-Relevance of title-Res judicata- Action for declaration of title

Initially, the respondent had filed a case in the District Court against R, who was his tenant. After trial, the District Court held in favour of the respondent. When the respondent executed the writ against R, the present appellant was also ejected from the subject matter property. The appellant successfully filed an application in the District Court under section 328 of the Civil Procedure Code seeking restoration. The Court of Appeal dismissed the respondent's appeal and stated inter alia that the Municipal Council of Kandy was the owner of the property.

The respondent thereafter filed an action against the appellant in the District Court seeking a declaration of title to the property. The District Court dismissed the action on a preliminary legal objection that the determination of the Court of Appeal that the property belonged to the Kandy Municipal Council operated as res judicata. The respondent appealed to the High Court of Civil Appeal, which set aside the order of dismissal made by the District Court and directed the District Court to hear the case de nova. Aggrieved, the appellant appealed to the Supreme Court.

Held:

In an inquiry under section 328 of the Civil Procedure Code, the court is not empowered to declare that a party or any other person is the owner of the subject matter property. There is no investigation of title regarding the ownership of the property and the only question is whether or not the claimant should be restored in possession of the property in suit. An order made in a section 328 inquiry therefore cannot operate as res judicata in a declaration of title action.

Cases referred to:

1. Rosahamy v. Diago 3 NLR 203
2. Pathirana v. Ahangama [1982) 1 Sri LR 392
3. Ponnampalam v. Murugasar 4 NLR 296
4. Dingiri Appuhamy v. Talakolawewa Pangananda Thero 67 NLR 89 at 90

APPEAL from the Judgment of the High Court of Civil Appeal of Kandy.

Nihal Jayamanne, P.C., with Noorani Amarasinghe for the Defendant-Respondent-Appellant.

Kamran Aziz with Ershan Ariaratnam for the Substituted Plaintiff- Appellant-Respondent.

cur. adv. vult.

June 28, 2019

DEABREW,J.

The Plaintiff-Appellant-Respondent (hereinafter referred to as the Plaintiff- Respondent) flied action in the District Court of Kandy against the Defendant- Respondent-Appellant (hereinafter referred to as the

Defendant-Appellant) seeking a declaration that he is the owner of the property in dispute. The learned District Judge by his order dated 8.3.2002 decided the case on issues No.16 to 21 raised by the Defendant-Appellant and dismissed the case of the Plaintiff-Respondent without recording any evidence. Being aggrieved by the said order of the learned District Judge the Plaintiff-Respondent appealed to the Civil Appellate High Court and the learned Judges of Civil Appellate High Court by judgment dated 28.1.2010, set aside the said order of the learned District Judge and directed the learned District Judge to hear the case from the beginning. Being aggrieved by the said judgment of the Civil Appellate High Court, the Defendant-Appellant has appealed to this court. This court by its order dated 27.1.2014 granted leave to appeal on questions of law set out in paragraphs 13 (a),(b),(c),(d),(e),(f),(g),(h),(I) of the petition of appeal dated 10.3.2010 which are set out below.

1. Did the Honourable High Court of Kandy fail to take into consideration the admissions recorded on behalf of the parties in the District Court of Kandy?

2. Did the Honourable High Court of Kandy fail to consider the fact that the order made by the District Court under Section 328 of the Civil Procedure Code in DC Kandy case No.2315/RE and confirme