Abeysundera V. Babuna Et Al.

Present: Ennis A. C. J. and Schneider J.

ABEYSUNDERA v. BABUNA et al.

226-D. C. Matara, 374.

Res judicata-Dismissal of partition action for non-prosecution

Subsequent action for partition of same land-Civil Procedure Code, ss. 5, 6, and 207.

The dismissal of a partition action for non-prosecution is no bar against & subsequent action for the partition of the same land.

The cause of action upon which a. partition action is based is inconvenience of common ownership, which is a recurring one.

APPEAL from an order of the District Judge of Matara dismissing an action for partition on the ground that it. was barred by a previous action for the partition of the same land.

It appeared from a certified copy of the proceedings of the previous action, produced by counsel, that the action had been dismissed before the day of trial had been fixed, and even before some of the defendants had been served with novice.

Samarawickreme (with him H. V. Perera), for plaintiff, appellant.

R. L. Bartholemeusz, for 26th defendant, respondent.

February 17, 1925. Ennis A. C. J. -

This is an appeal by a plaintiff in a partition action, whose action has. been dismissed with costs. The difficulties on appeal arise from the neglect to observe regular procedure. The learned Judge decided the shares of each of the parties to the action and allotted a definite share to the plaintiff, but on a plea that the plaintiff's action was barred owing to the dismissal of a previous action for partition, the learned Judge dismissed the plaintiff's case. The plaintiff appeals. The petition of appeal does not make anybody respondent to the appeal, although it names thirty-six defendants. It transpires that two of the persons named as defendants are dead, and after hunting throughout the record, it would seem that certain persons have been substituted as defendants in the place of the 14th defendant, and they have been added in the caption in the Court below as the 37th to 44th defendants. It would seem that the 34th to 36th defendants were added as the heirs of the deceased 25th defendant. The petition of appeal does not even mention the 37th to 44th defendants as defendants in the action. However, it appears that certain of the defendants accepted security for costs on the appeal, so they appear to have accepted the position that they were respondents to this appeal, and all the defendants were served with notice of appeal. There is only one appeal from the decree, and that is the appeal by the plaintiff. At the hearing of the appeal an appearance has been entered for the 26th defendant only. In holding that the decree in the previous action No. 9, 972 was res judicata, the learned Judge relied upon the case of Perera v. Fernando. [1 (1914) 17 N. L. R. 300.] That case is not on all fours with the present one, because there the previous action was one for a declaration of title and not for partition. Two cases have been cited on appeal (Fernando v. Menikrala [2 (1902) 5 N. L. R. 369.] and Sanchi Appu v. Jeeris Appu [3 (1920) 22 N. L. R. 176.] ). In the first of these cases it was held that the dismissal of an action for the partition of a land on the ground that the plaintiff had failed to prove that he had a share cannot be pleaded as res judicata in a subsequent action brought by the plaintiff for a declaration of title to that share, because in the partition action he had to prove an absolutely good title against all the world, and in the other action he had to prove only a better title than the defendants.

In the second of these cases it was held that the dismissal of a plaintiff's action- for partition on the ground that he' had neither paper title nor title by prescription was no bar to the subsequent action for declaration of title between the same parties. These cases are to an extent more to the point, inasmuch as in both of them the previous action was one for partition,

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