Kalu Banda V. David Appuhamy

1963 Present: L. B. de Silva, J., and Abeyesundere, J.

H. M. KALU BANDA and another, Appellants, and
 S. K. B. A. D. DAVID APPUHAMY, Respondent

S.C. 274/1961-D. C. Kurunegala, 13,392/L

Res judicata-Same parties and subject matter in two rei vindicatio actions-New title acquired by one party after the decree in the earlier case-Validity-Civil Procedure Code, s. 207.

     A decree entered in favour of the plaintiff in an action for declaration of title to a divided portion of a land consisting of certain lots  cannot operate as res judicata in another similar action between the same parties in respect of the same land but in respect of a different lot, title to which was acquired by the defendant from a third party subsequent to the decree in the earlier action.

APPEAL from a judgment of the District Court, Kurunegala.

                      C. R. Gunaratne for 1st and 2nd Defendants-Appellants.

                      T. B. Dissanayake, for Plaintiff-Respondent.

Cur. adv. vult.

October 22, 1963. L. B. DE SILVA, J.-

     By decree (P3) dated 26/9/52 the plaintiff was declared entitled to a divided portion of the land called Medawatta alias Alutwatta subsequently depicted as lots 1, 2, 3, 5 and 6 in plan No. 1136 of 1954 (P4) in D. C. Kurunegala Case No. 5554 as against the 1st. and 2nd. defendants. These lots are identical with lots 1, 3, 5, 6, 7, 10, 11, 12, 14A, 20 and 26 marked in red in plan No. 1267 of 13.2.59.

      The 1st. and 2nd. defendants claim title in this case to Lot 9 only in plan No. 1267 on a title independent of that set out by them in D. C. Kurunegala No. 5554. They allege that T. P. Baptist was entitled to the land depicted in T. P. 14977 marked " X " attached to the Crown Grant XI of 1937. Admittedly the title plan " X " includes Lot 9 now claimed by the 1st. and 2nd. defendants.

       According to the defendants, the title of Baptist devolved on Saman on deeds Dl to D4. Saman by deed 3395 dated 25/5/1955 (D5) conveyed his rights to 1 and 2 defendants. The deed (D5) in favour of 1st. and 2nd. defendants was executed subsequent to the decree (P3) in favour of the plaintiff.

     At the trial, certain issues were raised and two of them related to the question of res judicata. They were as follows :-

     Issue     (3). Is the decree in case No. 5554 res judicata between the parties ?

    Issue    (7). Is the decree in case No. 5554 res judicata in regard to the title now set up by the 1st. and 2nd. defendants ?

   The issue relevant to the present dispute is really Issue (7). The learned District Judge answered these issues in favour of the plaintiff and entered judgment for plaintiff as prayed for with costs but limiting the damages as agreed to by the parties. The 1st. and 2nd. defendants have appealed from this judgment and decree.

   The Law of res judicata applicable in this case is the Roman Dutch Law, subject to the amendments set out in sections 34, 207 and 406 of the Civil Procedure Code. Of these sections, it is only section 207 that has any semblance of an application to this case. Under the explanation to that section, every right to property.............................................which can be claimed, set up or put in issue between the parties to the action upon the cause of action for which the action is brought, whether it be actually so claimed, set up, or put in issue or not in the action, becomes, on the passing of the final decree in the action, a res judicata, which cannot afterwards be made the subject of action for the same cause of action between the same parties.

   The right to this property which the 1st. and 2nd. defendants acquired from a 3rd. party, subsequent to the filing of the previous action and its decree, could not possibly have been claimed, set up or put in issue by these defendants in the previous case.

    Under the Roman Dutch Law, Voet says: " There is nevertheless no room

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