1936 Present : Abrahams C.J. and Soertsz A.J.

PEIRIS v. WEERASEKERE.



94 - D. C. Colombo, 34,065.

Res judicata-Partition action-Decision as to title-No interlocutory decree- Right of party to raise a claim for compensation for improvements- failure to raise plea at earliest opportunity-Estoppel. In a partition action the District Court held that the plaintiff was entitled to five-sixths share of the land as against the defendant, who claimed title to the whole of it by prescription. The Court declined to adjudicate on the title to the remaining one-sixth without hearing the other heirs of the original owner from whom the plaintiff claimed and directed that they be noticed to appear. No interlocutory decree was entered.

After the case had gone up in appeal and been remitted to the District Court, the defendant moved to amend his answer by putting in a claim for compensation for improvements and a jus retentionis, which was allowed.

Held, (on a plea of res judicata raised by the plaintiff at a subsequent stage of the action) that the claim for compensation was not barred by the interlocutory order passed in the proceedings.

Where a party in whose favour a decision is given fails to raise at the earliest opportunity the question of estoppel per rent adjudicatam he is deemed to have waived his right to plead it.

THIS was an action instituted by the plaintiff to parition a land in which he claimed title to 5/6 share and allotted the remaining 1/6 share to the defendant. It was common ground that the land originally belonged to one Ahamado Lebbe Arisi Marikar, who gifted 5/6 share to his son Sali Hadjiar subject to a fidei commissum in favour of the latter's children. Sali Hadjiar died leaving two sons who conveyed the land to the plaintiff.

The defendant claimed the entirety of the land on the ground that Sali Hadjiar became entitled to it by inheritance, the deed of gift being inoperative under the Muslim law. He alleged that the property was mortgaged by Sali Hadjiar and in execution against him it was purchased by the mortgagees, who sold it to him. The District Judge held that the deed of gift was good and that plaintiff was entitled to 5/6 share. He was not disposed to decide the title to the remaining 1/6 without hearing the other heirs of Arisi Marikar.
The defendant appealed to the Supreme Court who reversed the judgment of the District Judge, but on an appeal to the Privy Council the judgment of the original Court was restored.

After the case was remitted to the District Court, the defendant moved to amend the answer by putting in a claim for compensation for improvements and jus retentionis. The plaintiff at the same time moved for the appointment of a receiver. The defendant's amendment was allowed and no appeal was taken from the order. Thereafter the case went up in appeal on the question of the appointment of a receiver and was remitted to the District Court where the plaintiff raised the question whether the defendant was entitled to ask for a further right of way. The learned District Judge held that the interlocutory order barred the right to compensation and all other subsequent claims.

H. V. Perera (with him J. A. T. Perera), for defendant, appellant.-Parties went to trial on two preliminary issues of law. If they were decided against the plaintiff his action would have been dismissed and further proceedings would have been unnecessary. The Judge decided only those two issues. No interlocutory decree was entered. The plaintiff was not even declared entitled to 5/6. Even after interlocutory decree there is nothing to prevent a party making a further claim. It is only the final decree that wipes out a party's right. In this case there was not even an interlocutory decree. Moreover, the amendment of the pleadings by adding a claim for compensation had been allowed. The amendment would date back to the date of the answer and the ef