1948     Present : Howard C.J. and Nagalingam J.

BANDA, Appellant, and KAROHAMY, Respondent

S. C. 290-D. C. Kurunegala. 2,941

Res judicata-Title accruing to defendant after institution of action-Not set up-Subsequent action by defendant-Cannot set up this title.

A defendant is bound to set up by way of defence every ground avail­able to him not merely at the date of the institution of the action but accruing to him thereafter and prior to judgment. If he falls to do so, he cannot in a subsequent action be permitted to rely on the self-same ground in support of his claim.

APPEAL from a judgment of the District Judge, Kurunegala.

H. V. Perera, K.C., with Cyril E. S. Perera and T. B. Dissanayake, for plaintiff appellant.

N. E. Weerasooria, K.C., with W. D. Gunasekera, for defendant respondent.

Cur. adv. vult.

December 6. 1948. NAGALINGAM J.-

A question of law relating to the doctrine of res judicata arises on this appeal. The facts which give rise to the question are briefly these. One Allis Appu was admittedly the owner of the land in dispute in this case. The land was sold in execution against him and was purchased by two persons, Saro Hamy and Ukku Menika, in whose favour Fiscal's conveyance dated December 8, 1931, was duly issued. They by deed (P 1) dated July 29, 1943, transferred the land to the plaintiff. Prior to the execution of the Fiscal's conveyance, however, Allis Appu by a deed dated October

14, 1931, conveyed, the land to one Lamina who by a deed of 1936 conveyed it to the defendant. The defendant instituted action No. 1604 of the District Court of Kurunegala on July 1, 1943, against the present plaintiff and two others claiming declaration of title to the land. The present plaintiff was one of the sons of Allis Appu and he was named the-second defendant in the case. In that action the present plaintiff and his fellow contestants denied the title of the defendant to the land and set up title in themselves based firstly, on inheritance from Allis Appu and secondly, on prescriptive possession. After trial, judgment was delivered in favour of the present defendant declaring him entitled to the land and decree was entered on March 26, 1945. A couple of months later, namely, on June 9, 1945, the plaintiff commenced this action against the defendant for declaration of title to the land basing, however, his title on the conveyance (P 1), a title which admittedly was not set up by him in defending the earlier action. For the purposes of this case it is. necessary to draw pointed attention to three salient dates. The earlier action by the present defendant against the present plaintiff and others was instituted on July 1, 1943, while conveyance in favour of the present plaintiff by Saro Hamy and Ukku Menika was executed about a month later, namely, on July 29, 1943, and the present plaintiff and his fellow contestants filed their answer in that action on September 8, 1943, that is to say, about five weeks after the execution of conveyance (P 1) in favour of the present plaintiff.

The defendant pleads that the decree in the earlier action operates as a. res jud