Kandavanam Et Al., V. Kandaswamy Et Al.,

1955 Present : Gratiaen, J., and Swan, J.

M. KANDAVANAM et al, Appellants, and V. KANDASWAMY, et al.,
Respondents

S. C. 293-D. C. Point Pedro, 3,955

Civil Procedure-Claim by a defendant against a co-defendant for substantive relief- Jurisdiction of Court to entertain it.

Res judicata-Partition action-Withdrawal of action-Consent by some of the defendants-Failure to obtain leave to institute fresh action-Effect on rights of parties in a subsequent action-Civil Procedure Code, ss. 207, 406,

(i) The Civil Procedure Code does not empower a Court to entertain substantive claims for relief preferred by defendants inter se. Therefore, if A sues B for declaration of title to certain property and makes C, a co-owner, a party defendant in order to ensure a more complete and effectual adjudication of the issues arising in the action, C cannot, while supporting A's allegations against B, ask for a declaration of rights and an award of damages on his own account against B.

(ii) A instituted action No. 1 for the partition of a land on the basis that it was exclusively owned in common, from a common source of title, by him and the defendants one of whom was B. C intervened claiming for himself an undivided 2/9 share of the land. A decided to avoid a contest on the issue of C's claim. He, obtained, with B's consent, permission from the Court to " withdraw the action " but did not ask for liberty to institute a fresh action. Accordingly, the trial Judge entered a decree dismissing A's action with costs in favour of C.

About a year later the successors-in-title of B instituted action No. 2 against C in respect of the identical land claiming declaration of title to the 2/9 share which C had claimed in action No. 1. A was also joined in action No. 2 as a defendant in order to ensure a more complete and effectual adjudication of the issues arising in the action.

Held, (a) that the failure of A to obtain liberty under section 406 of the Civil Procedure Code to bring fresh proceedings at the time when he " withdrew " from the partition action (Action No. 1) was fatal to any fresh attempt by A to reagitate a claim which came into conflict with C's title to an undivided 2/9 share.

(b) that the plaintiffs in action No. 2, being privies of B who had consented to the unconditional withdrawal of action No. 1, were also precluded from asserting that the title which had passed to them from B prevailed over the title of C.

APPEAL from a judgment of the District Court, Point Pedro.

C. Thiagalingam, Q.C., with V. Arulambalam and C. Chellappah, for the 1st and 2nd defendants appellants.

E. G. Wikramanayake, Q.C., with A. Nagendra, for the plaintiffs respondents.

H. W. Tambiah, with A. Nagendra, for the 3rd and 4th defendants respondents.

Cur. adv. vult.

242

October 28, 1955. GRATIAEN, J.-

The plaintiffs sued the 1st and 2nd defendants in this action for a declaration of title to an " undivided 18 lachams share " of a defined allotment of land, 37 lachams in extent. This allotment had originally formed part of a larger land called Thaddanthoddam (47 lachams in extent) out of which two small portions had passed into the possession of third parties by purchase. According to the plaintiffs, the entire 37 lachams allotment to which this action relates belonged to themselves, the 3rd and 4th defendants in the proportions of 18, 11, and 8 respectively. They alleged that the 1st and 2nd defendants, who had no title to the land, obstructed their possession as co-owners on 10th December 1950. Accordingly, they claimed, in addition to a declaratory decree in respect of their title on this basis, an order for the ejectment of the 1st and 2nd defendants and damages. The 3rd and 4th defendants were joined in the action in order to ensure a more complete and effectual adjudication of the issues arising in the litigation.

The 1st and 2nd defendants are husband and wife.

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