1944 Present: de Kretser J.

ODIRISHAMY, Appellant, and ELARIS, Respondent.

220 C. R. Gampaha 1,872

Res Judicata-Action on lease-Allegation of ouster and claim for damages- Case settled-Subsequent action far restoration of possession-Civil Procedure Code, s. 34.

In C. R. Gampaha, 1,684, the plaintiff, alleging that he was entitled to possess certain rubber trees on a lease, complained of an ouster by the defendant and asked for damages sustained by him and continuing damages till date of judgment.

The defendant denied plaintiff's right to the lease, which he said was void, but at the trial admitted the plaintiff's claim and consented to pay damages.

In the present action the plaintiff alleged that the defendant had refused to give up possession of the land and claimed that he be placed and quieted in possession and that the defendant be ejected,-

Held, that the present action was not barred by section 34 of the Civil Procedure Code.

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

H. V. Perera, K.C. (with him R. C. Fonseka), for the defendant, appellant.

L. A. Rajapakse, K.C (with him S. R. Wijayatilake), for the plaintiff, respondent.

Cur. adv. vult.

December 18, 1944. DE KRETSER J.-

The only question debated at the hearing of this appeal was whether the plaintiff was barred by section 34 of the Civil Procedure Code from making his present claim by reason of the claim he successfully made in (C. R. Gampaha, case No. 1,684.

In that case the plaintiff set. out in his plaint the manner in which he became entitled on a lease to possess certain rubber trees during his lease and, complaining of an ouster by the defendant a few days after the plaintiff had entered into possession, he asked for damage already sustained and continuing damages until the date of judgment. He did not ask for a declaration of his right to possess on his lease and consequently not for damages until he was placed in possession.

The defendant filed answer admitting the title of the lessors and the lease to plaintiff but pleaded that the lease was void as it was executed during the pendency of a partition action. He also denied that the plaintiff entered into possession or that he had suffered any damages or had a cause of action or that he (the defendant) was in unlawful possession.

At the trial issues were raised on these lines and immediately afterwards the record reads " case settled at this stage. Of consent judgment for plaintiff as prayed of fixing damages at Rs. 19.25 per mensem as a matter of settlement. Plaintiff to have costs of this class. Enter decree accordingly ".

The plaintiff believing that his right was admitted went to take possession on the very next day, when the defendant refused to give possession. The plaintiff then brought the present action setting out title and the decision in the previous case and claimed damages and that he be placed and quieted in possession and that the defendant be ejected. The defendant filed an answer making the same pleas as in the previous case and in addition pleaded the earlier action as a bar and also that the Court had no jurisdiction as the subject matter of the action was worth Rs. 1,500. The same issues as before were raised and in addition the following: -

(1) Is the plaintiff's action barred by the decree in C. R. Gampaha, No. 1,684 ?

(2) If so, can he claim (a) ejectment ? (b) damages ?

(3) Under any circumstances is the plaintiff estopped by the decree in C. R. Gampaha, No. 1,684, from claiming damages, if any, in excess of Rs. 19.55 per mensem ?

The learned Commissioner held in the plaintiff's favour but reduced the damages claimed. The defendant appeals.

It is clear that the defendant is taking advantage of a legal defence and would have no defence on the merits, and none was attempted. No case exactly in point was cited to me. The learned Commissioner decided the case on the footing that a ne