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SILINDUHAMY et al. v. WEERAPERUMA
NLR56V182
1954 Present: Sansoni J. and
Fernando A.J.
K. K. SILINDUHAMY et al., Appellants, and
P. WEERAPERUMA, Respondent
S. C. 181-D. C. Galle, 4,395
Res judicata-Several previous
but conflicting decisions-Principles applicable then-Partition action.
In an action for the partition of what was described by the plaintiff as a land
consisting of two portions (A and B) the contesting defendants took up the
position that the two portions were distinct and separate lands in one of which
the plaintiff had no share and, therefore, that the two lands could not be
joined in one action for partition.
There had been three earlier actions-Cases Nos. 1, 2 and 3-in regard to the same
point in dispute. In Case Ho. 1 it was held that portions A and B constituted
one land. On this question it was decided in Case No. 2 that the previous decree
in Case No. 1 was res judicata. The question arose again in Case No. 3 where the
defendants pleaded the decree in Case No. 1 as res, judicata, but the decree in
Case No. 2 was not pleaded as res judicata. It was
however, decided in Case No. 3
that A and B were two separate adjoining lands. In Case No. 3 the predecessors
in title of the plaintiff and contesting defendants of the present action were
parties.
Held, that, for the purpose of deciding the present action, the
decisions in Cases Nos. 1 and 2 were superseded by the decision in the later
Case No. 3 which was res judicata as between the plaintiff and the contesting
defendants. Two principles governed the matter, viz., (1) A judgment of a Court
of competent jurisdiction directly upon the point in dispute is a bar between
the same parties or those claiming through them if pleaded ; but if not so
pleaded, the matter is left at large. (2) Where there are conflicting judgments
inter parties, the later adjudication should be taken as superseding the
earlier.
APPEAL
from a judgment of the District Court, Galle.
H. W. Jayewardene, Q.C., with D. R. P. Goonetilleke, for the 4th, 11th
and 19th defendants appellants.
Cyril E. S. Perera, Q.C., with A. W. W. Gunawardene, for the plaintiff
respondent.
Cur. adv. vult.
September 24, 1954. SANSONI
J.-
The plaintiff-respondent brought this action for the partition of a " land
called Rukmalgahaowita and Kumbura adjoining each other situated at
Aluttanayamgoda in Mapalagama in the Gangaboda Pattu of the District of Galle,
Southern Province, and bounded on the North by Diganegoda Potuwila, East by
Modera Pelessa, South by Kamarangeowita and West by Walagawawatta containing in
extent about five acres (5 A. 0 E. 0 P.) ". He traced title to the land from two
persons, Liyanage Nonnehamy and Liyanage Seuhamy who were alleged to have owned
the land in the proportion of 7/8 and 1/8. Nonnehamy married Ketipe Kankanange
Adirian in community of property and the latter died leaving his widow who then
got 7/16 share and the four children Udaris, Andiris, Nonahamy and Babahamy who
each got 7/64 share. The widow Nonnehamy by deed PI of 12th September, 1901,
sold her 7/16 share to Singho-appu, and the plaintiff by purchase on deed P3 of
1942 claims that share. The 19th defendant has purchased certain interests out
of Udaris' share in the southern portion of the land. Andiris married Gimara and
they had two children the 4th and 20th defendants who sold their share to the
11th defendant. With regard to Seuhamy's l/8th share, on her death it passed to
her four children Sancho, Aranolis, Endiris and Dingihamy. Sancho's share was
bought at a sale in execution against her by Karunaratne and Abeyhamy on
Fiscal's Conveyance P8 of 1906, and that share has devolved on the plaintiff.
Endiris' share in the southern portion was bought by Gimara on deed 11D2 of
1911, and on Gimara's death it passed to her children the 4th and 20th
defendants who sold it to the 11th defendant. I have referred to the devolution
of only some of the shares in order to set out how
