Present : Schneider and Garvin JJ, 1923.

 BANDA v. NACCIRE et al.

 304-D. C. Kurunegala, 8,686.

Res adjudicata-Civil Procedure Code, s. 207-Action for declaration of title and damages till restoration to possession-Of consent decree plaintiff restored to possession by plaintiff after decree plaintiff restored to possession about ten month, after decree-Action by lessee for damages for unlawful possession.

In action No. 7,671, N sued defendants for declaration of title to a land and also for damages till she was restored to possession. Of consent decree was entered on June 28, 1920, declaring her entitled to life interest. It was also decreed that there should be no damages. On October 29, 1920, N executed a lease of the land for four years from that date. On July 25, 1921, N obtain possess through the Fiscal. The lessee sued the defendants for damages alleging that they were in unlawful possession of the land from the date of lease till July 25,1921.

Held, that the lessee was barred by the decree in No 7 671 from claiming damages in the present action.

PLAINTIFF, averring that he had taken a lease No 363 dated November 29, 1920, from one Iso Naccire, who had been declared entitled to the possession of a half share of the lands described in the schedule to the plaint by a decree entered in D C Kurunegala, case No. 7,671, sued defendants for the recovery of Rs. 360, which he alleged were the damages sustained by him for his dispossession of the said premises since the date of the lease for about ten months.

Defendants denied the alleged dispossession, and pleaded that the action No. 7,671 by the said Iso Naccire in which she claimed damages up to the date of cession of possession, was settled and a decree of consent entered, giving her a life interest in half the premises claimed, and that in consequence of such compromise plaintiff was precluded from claiming the damages, if any, for the period up to the cession of possession.

The parties proceeded to trial on the following issues : -

(1) Is plaintiff precluded from maintaining this action by reason of the decree in 7,671 of this Court ?

(2) If not, has defendant wrongfully taken possession of the half share belonging to the plaintiff ?

(3) Damages.

The District Judge (W. L. Murphy, Esq.)) by his judgment decided all issues in plaintiff's favour, and gave judgment for plaintiff as prayed for, with damages, for ten months as claimed.

The defendants appealed.

Croos-Da Brera, for defendants, appellants.-The plaintiff's lessor instituted an action rei vindicatio regarding the land leased and claimed mesne profits. The action was settled, and the defendants were declared the owners, subject to the life interest of the lessor. No order was made as regards mesne profits. The lessor claimed future mesne profits, and sections 196 and 207 of the Civil Procedure Code prevent him from claiming them again. The order in the previous case operates as res judicata. The plaintiff cannot be in a better position than his lessor. Counsel cited If in Banda v. Slema Lebbe.[1]

Soertsz (with him Weerasinghe), for plaintiff, respondent.-The case of Km Banda v. Slema Lebbe (supra) was decided on evidence. In this case the judgment is based on a settlement. It was understood that no damages or mesne profits should be claimed. The plaintiff claimed possession of the land as lessee. Defendants should account for the mesne profits after they refused to give possession. It was understood that the defendants should give possession soon after judgment. They delayed to give possession. They should not be allowed to benefit by their default.

January 31, 1923. SCHNEIDER J.-

One Iso Naccire sued the defendants in this action for a declaration of title to the land which is in claim in this action, and also for damages sustained up to date of action, and further damages till she was restored to the possession of the land. Her clai