Appuhamy V. Punchihamy

1914 Present: Lascelles C.J. and De Sampayo A.J.

APPUHAMY v. PUNCHIHAMY.

447-D. C. Negombo. 8,678.

Res Judicata-Findings on two issues, either of which would justify the decree-Which finding would operate as res judicata in a subsequent action ?

Plaintiff brought a partition action (No. 5,137) claiming an undivided share of a land as son of one Sepasin. This action was dismissed on the ground that plaintiff was not the son of Sepasin, and the Judge also held that the land sought to be partitioned was held dividedly. Plaintiff subsequently brought this action to partition another land claiming to be a son of Sepasin.

Held, that the issue as to whether the plaintiff was a son of Sepasin was res judicata by the decision of the former action.

Where there are two findings of fact, either of which would justify in law the decree which was made, the finding which in logical sequence of necessary issues have been first found, and the finding of "which would have rendered the other of the two findings unnecessary for the making of the decree, is the finding which can operate as res judicata.

" In the present case the first step was for the plaintiff to prove his title from the original owner of the land, and any question with regard to the division of the land would only arise after the plaintiff had established his descent from the original owner."

De Sampayo A.J.-" It is well settled that the issue for the purposes of res judicata must be a substantial and not a mere incidental issue,''

THIS is a partition, action in which the plaintiff claimed an undivided half share of the land in question from his mother, who he alleged was the first wife of one Sepasin, the original owner of the land, and also a 1/32 share by inheritance from Sepasin himself.

The defendants denied that the plaintiff was the son and heir of Sepasin, and contended that the point was res judicata by the decree and judgment in case No. 5,137 of the District Court of Negombo.

The learned District Judge held that the claim of the plaintiff as the legitimate son of Sepasin was res judicata by the decree in the former action. From this judgment the plaintiff appealed.

Action No, 5,137 was instituted as long as July 11, 1903. It was a partition action, in which the plaintiff claimed certain undivided shares in a different land on the footing that he was a son of Sepasin. Evidence was heard, and the District Judge found that the plaintiff wets not a legitimate son of Sepasin, and dismissed his action.

The judgment in D. C. Negombo, 5,137, was as follows: -

The land in question, Ambagahawatta, belonged to Kaluhamy, Appuhamy, and Babahamy. On their death it devolved on their three children, Daniel (first defendant), Siriwedi Etana (seventeenth defendant), and Sepasin. Plaintiff claims a share as the son of Sepasin by his first marriage, and asks for a partition.

He produces no certificate of his birth or of his parents' marriage, and, on the other hand, the contesting defendants produce copy of certificate of Sepasin's second marriage, in which he declares himself as not married. This certificate is not conclusive, for in the villager's mind marriage and registration are always confused together, but it is of considerable weight, and to disregard it I should have to find strong evidence on the other side.

The strongest evidence in favour of plaintiff is that of Punchihamy, twentieth defendant, who admits under cross-examination that when she married Sepasin there was a child living with him and his mother in the house, and she does not deny it was the plaintiff. I entirely believe that plaintiff was brought up by Sepasin, and that he is his child. But I find the evidence not sufficient to presume, in face of the marriage certificate, that Sepasin's first connexion was a marriage, and that plaintiff is a legitimate eon.

Again, I think there is another objection to the desired partition. It seems to me that the la

Click Here to Read the rest of this document