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

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