1956 Present: Pulle, J., and Weerasooriya, J.

FERNANDO, Appellant, and PERERA, Respondent

S. C. 316-D. C. Ratnapura, 1,053

Partition action-Interlocutory decree-Its binding effect on the parties-Title as to building erected by a co-owner-Res judicata.

By an interlocutory decree entered in an action for the partition of a land, A was declared entitled as against B to a garage which had been put up by a co-owner on the land and transferred by him to A. The decree was silent as to any rights of B in the land sought to be partitioned. Subsequently A sued B in the present action for the recovery of mesne profits in respect of the garage from the date of its purchase by A.

Held, that the interlocutory decree entered in the partition action was binding on B and operated as res.judicata in regard to the title of the parties to the' garage in the present action . .

APPEAL from a judgment of the District Court, Ratnapura.

T. B. Dissanayake, with E. S. Amerasinghe, for the plaintiff appellant.,

H. Wanigatunga, for the defendant respondent.

Cur. adv. vult,.

March 27, 1956. WEERASOORIYA, J.-

By an interlocutory decree for partition (P1) dated the 26th May, 1953V, entered in D. C. Ratnapura Case No. 9,135 the plaintiff-appellant (who is the 3rd defendant in that case) was declared entitled to certain undivided, shares of the land sought to be partitioned and also to the buildings C. D and E in Plan No. 1,155 (P2). It would appear that two alternative-schemes of partition are under consideration in that case and no final" decree has yet been entered. Of the buildings referred to, C is a garage and is the subject matter of the present action.

In the plaint in the present action, dated the 28th July, 1954, the plaintiff recited his title to the garage as by right of purchase upon a deed of transfer No. 10,672 dated the 14th June, 1947, and also the interlocutory decree in the partition case No. 9,135. The cause of action pleaded; was that since the plaintiff's purchase the defendant-respondent disputed his title to the garage and appropriated the rent of the same and the relief claimed against the defendant was the recovery of mesne profits from the date of plaintiff !s purchase up to the 31st May, 1953, which for the purposes of the action were restricted to a sum of Rs. 1.200 with legal" interest and costs of suit.

The defendant-respondent is the 3rd plaintiff in the partition action. In that action a contest arose between him and the plaintiff-appellant over the garage in question which the latter claimed to be entitled to exclusively as an improvement effected by the transferor on Deed No. 10,672. The contest was resolved in favour of the plaintiff-appellant and no appeal was filed against the interlocutory decree declaring him entitled to the garage. That decree is silent as to any rights of the defendant in the land sought to be partitioned.

At the trial of the present action the following three issues were raised which the trial Judge was invited by the parties to try as preliminary issues:-

(1) Does the interlocutory decree in D. C. Partition Case No. 9,135, by which the plaintiff in this case, who was the 3rd defendant in the skid partition case No. D. C. 9,135, was declared entitled to the garage referred to in the schedule to the plaint, operate-as res judicata against the defendant in this case with regard, to the title to the said garage ?

(2) Does the interlocutory decree referred to in paragraph 2 of the plaint, vest title in the plaintiff in respect of the said garage ?

(3) If not, can the plaintiff maintain this action ?

The learned trial Judge answered each of these issues in the negative and accordingly dismissed the plaintiff's action with costs. From this order the plaintiff has appealed.

In disposing of the action in this way the learned Judge regarded as decisive the dictum of Bonser C.J. in the case of Pieris et al. v. Perera et al.