(PROVINCE COURT) HEIRS OF KHALAFALLA AHMED KARRAR v. HEIRS OF EL HAG AHMED KARRAR AND OTHERS PC.REV -1 - 1959 (Ed Darmer) | The Judiciary - Republic of Sudan

CIVIL PROCEDURE — Res Judicata — Matter in issue — Former suit dismissed before framing of Issues for want of a cause of action Is not a bar to new suit regarding same subject matter.

A former suit for prescriptive title to land, which was dismissed before framing of issues for failure to show a cause of action, is not res judicata as to a new suit by former defendants for recovery of possession of the same land, where former defendants made a new survey and thus ascertained a cause of action.

Osman El Tayeb, P.J., March 15, 1959:— The first case (CS-10-l954) was dismissed on the ground that it revealed no cause of action. As such it did not finally dispose of the matter of the case between the parties. It clearly appears from the record of that case that the parties did not make clear the case to the District Judge. It was a case of prescription; plaintiffs alleged acquisition of title by long possession of some shares in the sagia and the saluka. On examination of the register as to the plaintiffs’ registered shares, and comparing it with the sketch prepared according to their instructions. it appeared that they were not in possession of more than their registered shares. The defendants agreed to that. So the. learned District Judge dismissed that case for revealing no cause of action.

I do not think that this would prevent the same plaintiffs from bringing another suit with regard to the same subject matters in which they can make their claim and their cause of action clear.

It appears from the petition of plaintiff in the present case, that they were not sure whether plaintiffs in the former suit were in possession of some of their lands. So that suit aroused their diligence to find out. On measuring the land twice and thrice, they came to the conclusion that plaintiffs in the former suit possessed some of their lands. So they brought their present case applying for an order of recovery of possession.

The rights between the parties were not finally decided in the former case; no issue of any kind affecting the right as to the subject matter of the case was finally decided. Both of them are at liberty to bring a new case.

The former case is not res judicata as to the present one. In the same manner the defendant in the present case can make counterclaim for a prescriptive title.

Application for revision is allowed, the decree dated December 3, 1958 is set aside and the case is sent back for retrial on the merits.

CIVIL PROCEDURE — Res Judicata — Matter in issue — Former suit dismissed before framing of Issues for want of a cause of action Is not a bar to new suit regarding same subject matter.

A former suit for prescriptive title to land, which was dismissed before framing of issues for failure to show a cause of action, is not res judicata as to a new suit by former defendants for recovery of possession of the same land, where former defendants made a new survey and thus ascertained a cause of action.

Osman El Tayeb, P.J., March 15, 1959:— The first case (CS-10-l954) was dismissed on the ground that it revealed no cause of action. As such it did not finally dispose of the matter of the case between the parties. It clearly appears from the record of that case that the parties did not make clear the case to the District Judge. It was a case of prescription; plaintiffs alleged acquisition of title by long possession of some shares in the sagia and the saluka. On examination of the register as to the plaintiffs’ registered shares, and comparing it with the sketch prepared according to their instructions. it appeared that they were not in possession of more than their registered shares. The defendants agreed to that. So the. learned District Judge dismissed that case for revealing no cause of action.

I do not think that this would prevent the same plaintiffs from bringing another suit with regard to the same subject matters in which they can make their claim and their cause of action clear.

It appears from the petition of plaintiff in the present case, that they were not sure whether plaintiffs in the former suit were in possession of some of their lands. So that suit aroused their diligence to find out. On measuring the land twice and thrice, they came to the conclusion that plaintiffs in the former suit possessed some of their lands. So they brought their present case applying for an order of recovery of possession.

The rights between the parties were not finally decided in the former case; no issue of any kind affecting the right as to the subject matter of the case was finally decided. Both of them are at liberty to bring a new case.

The former case is not res judicata as to the present one. In the same manner the defendant in the present case can make counterclaim for a prescriptive title.

Application for revision is allowed, the decree dated December 3, 1958 is set aside and the case is sent back for retrial on the merits.

CIVIL PROCEDURE — Res Judicata — Matter in issue — Former suit dismissed before framing of Issues for want of a cause of action Is not a bar to new suit regarding same subject matter.

A former suit for prescriptive title to land, which was dismissed before framing of issues for failure to show a cause of action, is not res judicata as to a new suit by former defendants for recovery of possession of the same land, where former defendants made a new survey and thus ascertained a cause of action.

Osman El Tayeb, P.J., March 15, 1959:— The first case (CS-10-l954) was dismissed on the ground that it revealed no cause of action. As such it did not finally dispose of the matter of the case between the parties. It clearly appears from the record of that case that the parties did not make clear the case to the District Judge. It was a case of prescription; plaintiffs alleged acquisition of title by long possession of some shares in the sagia and the saluka. On examination of the register as to the plaintiffs’ registered shares, and comparing it with the sketch prepared according to their instructions. it appeared that they were not in possession of more than their registered shares. The defendants agreed to that. So the. learned District Judge dismissed that case for revealing no cause of action.

I do not think that this would prevent the same plaintiffs from bringing another suit with regard to the same subject matters in which they can make their claim and their cause of action clear.

It appears from the petition of plaintiff in the present case, that they were not sure whether plaintiffs in the former suit were in possession of some of their lands. So that suit aroused their diligence to find out. On measuring the land twice and thrice, they came to the conclusion that plaintiffs in the former suit possessed some of their lands. So they brought their present case applying for an order of recovery of possession.

The rights between the parties were not finally decided in the former case; no issue of any kind affecting the right as to the subject matter of the case was finally decided. Both of them are at liberty to bring a new case.

The former case is not res judicata as to the present one. In the same manner the defendant in the present case can make counterclaim for a prescriptive title.

Application for revision is allowed, the decree dated December 3, 1958 is set aside and the case is sent back for retrial on the merits.