Mohamed Cassim V. Sinne Lebbe Maricar

Present: Mr. Justice Wendt and Mr. Justice Middleton.

MOHAMED CASSIM v. SINNE LEBBE MARICAR et al.

D. C, Galle, 8. 254,

Res judicata-Dismissal of action owing to want of cause of action- Second action-Civil Procedure Code, ss. 34, 207, and 406. A judgment dismissing an action for declaration of title to land on the ground that the plaint disclosed no valid cause of action does not operate as a bar to a second action for the same relief.

ACTION rei vindicatio. The plaintiff sought to vindicate his title to an undivided two-thirds share of house No. 44, Church street, in the Fort of Galle, alleging that the first defendant was in the forcible and unlawful possession of the same, denying and disputing the plaintiff's title to the same. The first defendant denied the plaintiff's title and also pleaded that the plaintiff's action was barred by reason of the decree in D. C., Galle, 5, 265, dated July 8, 1899, dismissing an action brought for the whole of the premises by Sella Umma, a predecessor in title of the plaintiff, against first defendant.

The judgment in 5, 265, which was pleaded as res judicata, was as follows: -" I am of opinion that the plaint discloses no valid cause of action. against defendant, as plaintiff is still in possession of the house, and her possession is not disturbed. The case is dismissed. " The decide entered was one of dismissal of the plaintiff's action.

The District Judge (K. W. Macleod, Esq. ) upheld the plea of res judicata and dismissed the action.

In appeal.

Bawa, for the plaintiff, appellant.

Seneviratne (with him H. A. Jayewardene), for the first defendant, respondent.

Cur. adv. vult.

June 25, 1909. Wendt J, -

I have had the advantage of perusing my brother Middleton's judgment, with which I agree. As he has set out the facts, it is unnecessary that I should recapitulate them. The District Judge, in upholding the plea of res judicata, proceeded upon the authority of Baban Appu v. Gunewardene. 1 which, he said, he was unable to differentiate from the present case. There is, however, a fundamental distinction between the two cases. In Baban Appu v. Gunewardene l the decree pleaded in bar expressly declared Gunewardene the

1 (1907) 10 N, L. R. 167.

owner of the land, and directed that Baban Appu be ejected from it. It, was therefore held, and 1 venture to think rightly held, that Baban Appu could not again assert his own title to the land as he had done in his former action. In the present case the decree relied upon did not declare anybody's title, but on the face of it advisedly forbore to deal with the title at all. The dismissal of an action for land, even when it comprises no declaration of the defendant's title, may no doubt operate to make the title res judicata against the plaintiff, but that only occurs when the Court has dealt with the title, and decided that plaintiff had failed to establish his rights (I leave out of view the cases in which an action is dismissed in toto for default of plaintiff taking some necessary step, and which may perhaps constitute a bar under section 207, without the subject-matter of the action having been at all considered by the Court.

The decree in case No. 5, 265 pleaded by the defendant in the present case no doubt dismisses the plaintiff's action. It has, of course, to be read with the pleadings and the judgment. The pleadings showed that plaintiff's title was altogether (or at least as to anything more than an undivided half of the property in question) denied by the defendant. The proceedings at the trial are not in evidences, but I shall assume that plaintiff's title continued in issue to the end. The Court, however, declined to adjudicate upon that title, because a condition precedent to its exercising jurisdiction over the title had not been fulfilled, that is to say. the establishment of a "cause of action, " or reason for seeking the interference of the Court. Although no

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