Sedarahamy Et Al., V. Abubucker Et Al.,

1953 Present: Rose C.J. and Pulle J.

H. SEDARAHAMY et al., Appellants, and K. ABUBUCKER et al.,
Respondents

S. C. 151-152-D. C. Colombo, 3,223/LA

Res judicata-Partition action-Sole defendant-Agreement by plaintiff to pre-pay costs before a given date-Dismissal of action for default-Legal effect of the dismissal.

In a partition action instituted by A. as sole plaintiff against B. as sole defendant, B. claimed the entirety of the corpus without conceding any share to A. The action was, however, dismissed because the plaintiff had committed a breach of an agreement to pre-pay certain costs before a given date. Thereupon A. filed another partition action in respect of the identical land.

Held, that the dismissal of the first action determined once for all B.'s title to the entirety of the land as against A. A. was not entitled, in the second action, to agitate the same question of title as was in issue in the previous action.

Held further, that the transfer by B. of the entire land to C. during the pendency of the second action was valid.

APPEALS from a judgment of the District Court, Colombo.

E. B: Wikramanayake, Q.C., with W. Wimalachandra, for the 5th defendant appellant.

H. W. Jayewardene, with D. R. P. Goonetilleke, for the 3rd and 4th defendants appellants.

M. H. A. Aziz, with M. H. M. Naina Marikar, for the 1st and 2nd defendants respondents.

Cur. adv. vult.

December 13, 1953. PULLE J.-

There are two appeals in this case. The appellant in the first appeal is the 5th defendant and the appellants in the second are the 3rd and 4th defendants. The contest giving rise to these appeals relates to the apportionment of a sum of Rs. 9,625 awarded as compensation in respect of the acquisition by the Crown of a land called Koraborakele described as Lot 1 in Preliminary Plan No. A. 2,543. The 1st and 2nd defendants claimed the entirety of the compensation on the footing of a conveyance of that lot to them by the 5th defendant dated the 27th February, 1947, and marked 1D 1. They alleged that the 5th defendant was the owner of the entirety of the land. It was common ground that before her conveyance 1D 1 the 5th defendant was entitled under a chain of deeds to 7/8ths of the land. The case for the 1st and 2nd defendants was that the 5th defendant had acquired title by prescriptive possession to the balance l/8th also.

The 5th defendant took up the entirely unconscionable position that 1D 1 amounted to only a conveyance of her undivided 7/8ths share, even though it purported to convey the whole, and that it was void because at the date of its execution there was pending a partition suit No. 4,561 of the District Court of Colombo in respect of the identical land. The 3rd defendant claimed the balance l/8th on certain deeds. If in fact the 5th defendant was, at the time 1D 1 was executed, entitled to no more than 7/8ths it was conceded that the title to the remaining l/8th was in the 3rd defendant.

The principal issues tried in the case under appeal were whether the 5th defendant had at the date of 1D 1 acquired a title by prescriptive possession to the l/8th in dispute and whether the decree in a previous partition suit between the 3rd and 5th defendants enured to the benefit of the 1st and 2nd defendants. The learned Judge answered the former issue against the appellants and the latter in their favour.

The facts material to the question of prescriptive possession are as follows. One Giran Appu was the original owner of the land which on his death passed to his widow and eight children. In 1922 the 5th defendant acquired the interests of the widow and four children amounting to 12/16ths and in 1929 she acquired the interests of two other children amounting to 2/16ths thus making a total of 7/8ths. In 1931 she leased a 3/4ths share for four years to the 1st defendant according to whom the balance l/4th was possessed by the 5th defendant.

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