Jayasundera V. Andris Et Al.,

1940     Present: Howard C.J. 

JAYASUNDERA v. ANDRIS et al. 

190-C. R. Galle, 18,956. 

Res-judicata-Partition action-Claim by defendant to defined lot-Dismissal of action-Subsequent suit by defendant. 

Where a partition action was dismissed on the ground that the defend­ant had acquired title to a defined lot as against another defendant to the action and where the defendant subsequently brought an action to vindicate title to that lot against that other defendant.

 Held, that the decision in the partition action operated as res judicata. Saram Appuhami v. Martinahamy (12 N. L. R. 102) followed.

 APPEAL from a judgment of the Commissioner of Requests, Galle.

 N. E. Weerasooria, K.C. (with him H. A. Chandrasena) for the plaintiff, appellant.

 E. B. Wikremanayake (with him S. Mahadeva), for the defendant, respondent. 

Cur. adv. vult. 

June 20, 1940. HOWARD C.J.-

 This is an appeal by the plaintiff from a decision of the Court of Requests, Galle, dated June 26, 1939, holding that the plaintiff is entitled to one quarter of lot purchased on document P 6 and to the rubber plantation whilst his claim in excess was dismissed with costs. The

appellant contends that the learned Commissioner was wrong in rejecting his plea that the matter was res judicata by reason of the decision in a connected case D. C. 35,553. Case D. C. No. 35,553 was an action for partition of an extent of land of which the land to which the plaintiff claimed title in this action, that is to say lot 9 in plan marked P 1, formed part. The plaintiff's action in D. C. No. 35,553 was dismissed with costs, the Court holding that the parties who claimed specific blocks had been in possession of those specific blocks for a period exceeding 10 years before the institution of the case. In that case the first defendant in this case joined with the plaintiff in asking for the partition of the land and was the seventeenth defendant. The plaintiff in this case who was the eighteenth defendant in D. C. No. 35,553, claims title to lot 9 as having been possessed exclusively by him against all parties who alleged and claimed common possession. The plaintiff by deed established his title to a nineteen-twentieth share of the said land by right of purchase. He claims he has made plantations of rubber and coconut thereon and has been in possession of the entirety thereof for a period of over 27 years. With regard to the plea of res judicata the following passage from the judgment of the District Judge in D. C. No. 35,553 is in point: -

 " The 18th defendant" (i.e., the plaintiff in this case) " has been acquiring rights in lot 9 on different deeds from various parties and has been in possession of this lot for several years. He has no right in the rest of the land. There

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