Mohamad Ali V. Weerasuriya

[Full Bench.]

1914 Present: Lascelles C.J. and Pereira and Ennis JJ.

MOHAMAD ALI v. WEERASURIYA.

21-D. C. Kurunegala, 4,801.

Registration-Decree- " Affecting land."

By a decree in D. C. Kurunegala, 3,204, E and G were each declared entitled to an undivided half share of certain lands. The decree was not registered. Plaintiff was successor in title to E. and defendant purchased the whole land from G. Defendant's deed was registered.

Held (per Lascelles C.J. and Ennis J.), that defendant was bound by the decree in D. C. Kurunegala, 3,204, though the decree was not registered.

(Pereira J. dissentiente.)-A decree entered up in an action, embodying adjudication on claims to land is a decree " affecting land," and unless it is registered by the party in whose favour it is entered it would, under section 17 of Ordinance No. 14 of 1891, be void as against a conveyance, duly registered, of the land executed by the opposite party.

THE facts are fully set out in the judgment.

Samarawickreme (with him R. L. Pereira), for the defendant, appellant.-The decree in D. C. Kurunegala, 3,204, was not registered. It is a registrable instrument under section 16 of Ordinance No. 14 of 1891, as it is a " judgment affecting land. " The non-registration of the judgment makes it void as against the conveyance in favour of the defendant, who has bought it for valuable consideration. It is therefore open to the defendant to call in question plaintiff's predecessor's title. As the decree in D. C. Kurunegala, 3,204, was not registered, it cannot be set up to support the plea of res judicata.

Counsel cited 2 Irish Appeals 487.

[Lascelles C.J.-Judgments do not come within the scope of the Irish Registration Act.]

[Ennis J.-The judgment in D. C. Kurunegala, 3,204, only declares pre-existing title to land. It is not a judgment affecting land.]

There are judgments which do not declare pre-existing title-for instance, a judgment is obtained by default of appearance by one party. It is clear from the context that decrees relating to land were intended to be registered, To interpret the words " affecting

land " in any other way would be to leave a good many deeds unregistered. This will leave title to lands in a very unsettled state. Counsel cited Madar Lebbe v. Nagamma.1

[Lascelles C.J.-Is not the question of title res judicata between the parties to the case and those deriving title from them ?] But sections 16 and 17 would enable the successor in title of one party to re-open the question of title if the decree was not registered.

The object of these sections is to prevent an innocent purchaser from being defrauded. There will be no protection unless the books at the Registrar's office show what judgments have been obtained as to the land in question.

Bawa K.C., for the respondent.-The interests of the plaintiff and defendant are not " adverse " in the sense in which that term is used in the Registration Ordinance, as they are not derived from the same source. Neither party relies on the judgment as the source of title.

A judgment which merely declares title to land does not '' affect land, " and section 16 would not apply to such a judgment.

A mortgage decree is a decree " affecting land, " and should be registered. There are other judgments which affect land.

Counsel cited Casey v. Arnott. 2 Bernard v. Fernando. 3

Under section 207 of the Civil Procedure Code the question of title between the parties to case No. 3,204 is res judicata. The parties to this case are privies, and they cannot re-open that judgment.

Samarawickreme, in reply.

Cur. adv. vult.

May 29, 1914. Pereira J.-

In this case I regret that I am obliged to differ from the rest of the Court. The subject-matter of the action is a half share of a certain parcel of land. In case No. 3,204 of the District Court of Kurunegala a decree was entered up, of consent of parties, declaring one Elapata (the plaintiff in the case) entitle

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