1929. Present: Fisher C.J., Drieberg J., and Maartensz A.J.

HEEN BANDA v. ALUVIHARE.

28-C. R. Matale, 19,311.

Court of Requests-Action for damages-Value of land over Rs. 300- Denial of plaintiff's title-No claim in reconvention-Jurisdiction-Courts Ordinance, ss. 77 and 81.

In a Court of Requests, the plaintiff after setting out his title to a land, which was admittedly over the value of Rs. 300 claimed a sum of Rs. 150 as damages against the defendant for having forcibly cut and removed jak trees. The defendant in his answer denied plaintiff's title to the land, but made no claim in reconvention on that basis.

Held, that the Court of Requests had jurisdiction to entertain the action.

Per FISHES C.J.-Where a defence, which involves consideration of a question, which' could not be made the direct subject-matter of a prayer for relief by the Court, is raised the Court can deal with and decide the question for the purpose of deciding whether the plaintiff is entitled to the relief he claims.

THE plaintiff averred title to a certain land and complained that the defendant forcibly entered on the land and cut and removed five jak trees. He prayed for judgment against the defendant for Rs. 150 as damages.

The defendant in his answer admitted that he cut the trees, but denied the plaintiff's title to the land. He said that the land in question had been given to him on his marriage and that he and his wife had been in sole and undisturbed possession for about twenty-five years and pleaded the benefit of section 3 of Ordinance No. 22 of 1871, but he made no claim in reconvention on that basis. He further stated that the land was worth over Rs. 5,000 and that in consequence of the value of the land the Court of Requests had no jurisdiction to adjudicate on the matter.

At the trial the parties agreed that the land was over Rs. 300 in value.

The Commissioner held that he had jurisdiction to adjudicate on the matter and awarded Rs. 150 damages to the plaintiff.
 
The defendant appealed.

Navaratnam (with Wendt), for defendant, appellant.-Though the action is in the form of an action for damages the real question in issue is one of title. The jurisdiction of at Court of Requests in cases in which the question was the title to land over Rs. 300 in value has been the subject of conflicting decisions of the Supreme Court. The learned Commissioner has followed one set of decisions and not the other.

If the defendant sets up title in himself or in someone else and the land is over Rs. 300 in value the Commissioner has no jurisdiction to adjudicate on the matter. (Section 77, Courts Ordinance; Dingiri Appuhamy v. Appuhamy [1 (1913) Court of Appeal Cases, Vol. III., 87.]; Wickremenayake v. Edirisingha.  [2 30 N. L. R. 158.] )

The decision in this case if upheld would be a res adjudicata. (Section 207, C. P. C; section 34, C. P. C.; Andris v. Siriya et al.[3 (1924) 27 N. L. R. 70.] . Dingiri Menika v. Punchi Mahatmaya et al. [4 (1910) 13 N. L. R. 59.]-; Samichi v. Pieris [5 (1913) 16 N. L. R. 257. at 196.]. )

[FISHER C.J.-The words of section 81, Courts Ordinance, answer the question of the jurisdiction of the Court of Requests?]

Section 81, Courts Ordinance, contemplates cases in which the defendant counterclaims.

Counsel cited further Catherina v. Silva [6 (1907) 10 N.L.R.260.]. Baban Appu v. Gunawardene et al.[7 (1907) 10 N, L. R. 167.], Silva v. Fernando et al. [8 (1908) 11 N. L. R. 375.] , Peiris v. Mohideen [9 (1923) 25 N. L. R. 105.], Jose Antonio Baretts v. Francisco Antonio Rodriques and others [10 I. L. R. 35 Bombay 24.], Podisinno et al. v. Perera Appuhamy [11 (1926) 5 Times L. R. 46.], Rasiah Joseph v. Punchi Appuhamy[12 29 N. L. R. 159.].

Ranawake, for plaintiff, respondent.-The Court of Requests cannot merely on the pleadings refuse to adjudicate on the matter, but must consider the bona fides of the defence (see A. L. Smith L.J. in Howorth v. Sutc