Dingiri Menika V. Punchi Mahatmaya Et Al.,

Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice, Jan.24,1910
and Mr, Justice Wood Renton.
 
DINGIRI MENIKA v. PUNCHI MAHATMAYA et al. D. C, Kegalla, 2,437.

    Res judicata-Dismissal of action in Court of requests for a small portion of an inheritance-Subsequent action in District Court for the remainder-Decisory oath-Civil Procedure Code, ss. 34, 207, and 4015-Cause of action-Interlocutory appeals.

Plaintiff's claim, in C. E., Kegalla, 7,627, to one land by right of fraternal inheritance was dismissed on the strength of a decisory oath. In the present case the plaintiff claimed by the same right in the District Court as against the same defendants other lands belonging to the same inheritance.

Held, the decision in the first case was res judicata of the present action.
For the purpose of determining whether or not two causes of action are the same, we have to look not to the mere form in which the action is brought, but to the grounds of the plaint, and -to the media on which the plaintiff asks for judgment.

Sections 34, 207, and 406 of the Civil Procedure Code are not exhaustive of the law of res judicata in the Colony.

APPEAL from a judgment of the District Judge of Kegalla (E. B. Sueter, Esq.).

In C. R., Kegalla, 7,627, to which the present defendants were parties, the plaintiff claimed one land by right of paternal inheritance; the defendants alleged that plaintiff was married in diga, and had thereby forfeited her right to inherit any portion of the inheritance. The action was dismissed on the strength of a decisory oath. The plaintiff instituted the present action in the District Court to vindicate other lands belonging to the same inheritance. The District Judge held that the decision in C. E., Kegalla, 7,627, barred the plaintiff from claiming any portion of her father's estate by inheritance. The plaintiff appealed before the issue as to prescription was decided.

E. W. Jayewardene, for the plaintiff, appellant.-Under section 13 of. the old Indian Civil Procedure Code> an issue once tried cannot be tried again; but under section 207 of our Code it is the same cause of action that cannot be tried a second time. The doctrine of res judicata in Ceylon applies to the decree, and not to the decision on every issue raised in the case. Counsel cited Bastian Silva v. Marian Silva,1 Bastion Appu v. Gocmawardana.2

1 (1909) 12 N. L. R. 181.
2 (1906) 10 N.L.R. 167.

A. St. V. Jayewardene, for the defendants, respondents.-The Dingiri sections of the Civil Procedure Code do not exhaust the law as to  res judicate " Counsel cited Krishna Behari Roy v. hall Roy,1 Ghad  chand  Kour v. Partab Singh,2 Outram v. Morewood,3 Endris v. Adrian 5

Appu,4- Ramasamy Ayar v. Vythianath Ayar.5

E. W. Jayewardene, in reply.

Cur. adv. vult.

January 24, 1910. MIDDLETON A.C.J.-

This was an appeal taken in interlocutory form before all the questions in the action had been decided by the District Court, which, in my opinion, ought not to have been heard until the case had been finally disposed by the District Court.

A decision on the point before us will not finally dispose of the matters in dispute between the parties, and there will of necessity be a further trial, and such an appeal as this delays the hearing of the action and puts the respondent to the expense of meeting two appeals where one would suffice.

I was strongly inclined to send the case back without deciding the point before us, but our action in hearing and giving judgment on the point before us as it stands must not be taken as a precedent.

The only point now raised is whether a decision in C. R., Kegalla, No. 7,627, between the same parties in an action to recover a land forming part of the same inheritance in dispute here, holding that the plaintiff is not entitled to inherit from her father's estate on the ground that she was married in diga, is res adjudicata in th

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