Roche et Al. V. Keerthiratne Et Al .,

1945 Present: Keuneman and Rose JJ.

ROCHE et al., Appellants, and KEERTHIRATNE et al., Respondents.

56-D. C. (Inty.), Ratnapura, 7,409.

Joinder of parties and causes of action-Action for declaration of title to Crown land-Agreement by Settlement Officer to sell land to plaintiff's predecessor-Sale of land to defendant pending settlement-Transfer of land to plaintiff after settlement Order-Allegations of fraud and conspiracy against plaintiffs-Defendant's counter claim-Civil Procedure Code, s. 18.

Plaintiffs instituted this action for declaration of title to land, which was originally Crown and was settled on the 1st added party in 1941 from whom title passed to the plaintiffs through the 2nd added party.

Defendant in her answer stated that under an agreement dated September, 1931, between the 1st added party and the Settlement Officer the former was declared the purchaser of the property on the payment of a sum of money, which was duly paid in 1935; and that thereafter in May, 1938, 1st added party sold the property to certain other persons from whom the defendant purchased in 1941. The defendant pleaded that on the publication of the settlement order all the rights thereunder enured to her benefit and that the deeds mentioned in the plaint had been executed in fraud and collusion in pursuance of a conspiracy between the plaintiffs, the 1st and 2nd added parties and that the plaintiffs and 2nd added party were mere nominees of the 1st added party. The defendant moved that the 1st and 2nd added parties be joined in the action and claimed-

(a) that the plaintiff's action be dismissed and that the defendant be declared entitled to the land or in the alternative

(b) that the plaintiffs and 1st added party be ordered to execute a conveyance in her favour of the said premises or to pay damages.

Held, that there was no misjoinder of parties and causes of action.

APPEAL from a judgment of the District Judge of Ratnapura. The facts appear from the head note.

E. B. Wikramanayake for the plaintiffs, appellants.-All the parties in this case are not jointly interested in each of the causes of action. The addition of Dassanaike and Tennekoon as parties is not justified by section 18 of the Civil Procedure Code and is prejudicial to the plaintiff. In consequence of their addition three actions have been joined in the same suit, namely, (1) an action for declaration of title to land, (2) an action relating to a trust and (3) an action for damages. In the answer of the defendant the same relief is not claimed against each of the parties. There has been a misjoinder of parties and causes of action. The case of Fernando et al. v. Fernando1 is directly in point. See also Olagappa Chettiar v. Reith 2; Sivakaminathan v. Anthony 3; Kanagasabapathy v. Kanagasabai et. al.4

1 (1937) 39 N. L. R. 145.                      3 (1935) 3 C. L. W. 51.
2 (1941) 43 N. L. R. 91.                        4 (1923) 25 N. L. E. 173.

H. V. Perera, K.C. (with  Jayasundera), for the defendant, respondent.-The test is not life's the defendant claims against the different parties but what of action he has. In order to establish his allegation of fraud conspiracy the two added parties have to be, and can be rightly, The defendant's answer discloses both a defence and a counter-claim. On the counter-claim the added parties were rightly brought in-Haramanis v. Haramanis 1. In Fernando et. al. v. Fernando (supra) there were two independent causes of action, but in the present case the two causes of action are alternative. In Hall v. Pelmadulla Valley Tea and Rubber Co., Ltd., et al.2 the position was similar to the one in the present case but no objection of misjoinder was raised. Sections 18 and 33 of the Civil Procedure Code justify the addition of the two added parties.

E. B. Wikramanayake in reply cited Palaniappa v. Saminathan et al.3.

Cur. adv. vult.

February 15, 1945. KEUNEM

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