Nduke v. Mathayo (PC) Civ. App. 203-M-69; 20/2/70; Bramble J.

 

Nduke v. Mathayo (PC) Civ. App. 203-M-69; 20/2/70; Bramble J.

The respondent was the successful bidder in an auction sale of the appellant’s property in December 1963 and from 1963 to 1967 he harvested the coffee and the beer bananas while the appellant’s family still remained on the land and used the edible bananas. The respondent established that he allowed the appellant’s family to remain out of compassion for them as the latter was away in Uganda. The appellant’s case was that there was an oral agreement about five months before the sale and that there was an oral agreement about five months before the sale and that there was a previous suit decided by the High Court involving the same issue. The previous suit related to an application under Order 21, Rule 93 of the Civil Procedure Code for delivery of possession by a purchaser of immovable property at a sale in execution of a decree. In that suit it was held that the application was time barred under the Indian Limitation Act.

            Held: “Since the appellant was setting up an agreement the burden was on him to establish a binding agreement and this was all the heavier as he claimed that it were oral. There was no serious attempt to discharge this burden and too much was left to speculation.” (2) “While the object of that application and the present suit was the same the matter cannot be considered to be res judicata since each is founded on a different right and a person may use any or all the legal means of enforcing his right. A failure of one is not a bar to another were different principles of law are involved.” (3) “It is important to note that at the hearing of the application the question of an agreement was raised and the evidence was more detailed but the court held that thee was no such agreement. The appellant relied on that judgment and he could not accept part and repudiate part. He cannot now contend that there was an agreement. The trial magistrate was, therefore, wrong when he held that there was an agreement as was his dismissal of the suit on this ground. The respondent established title and possession and that the appellant and his family were on the land at his will. The appellant had not a shadow of a right to possession and I must uphold the judgment of the District Court.”  (4) Appeal dismissed.