( The National Supreme Court )

Circuit of River Nile Northern States

Judges:

President

Hon Justice: Abdel Aziz Fath Rahman Abdin       Supreme Court Judge

Member

Hon Justice: Algaily Sidig Abu Groon                  Supreme Court Judge

Member

Hon Justice: Mohamed Abdel Rahman Mustafa   Supreme Court Judge

The Parties:

Heirs of Ibrahim Mohammed Al Noor                 Applicant      

v.

Ibrahim Hassan Al Noor                                         Respondent 

No. M.A./T M/334/2018

The Civil Transaction Act, article(631) suits of possession .

Ratio:

Acceptance of a suit of possession without depositing the sketch showing the disputed land Is contrary to the rules followed, for passing a judgment that can be enforced by the court of First instance Advocates /Miss Malak Mohammed El Yas for applicant .      

Judgement

Judge: Abdel Aziz Fath Rahman Abdin

Date: 3/1/2019

This is a challenge by way of cassation presented by advocate Awad Ibrahim Abdel Rahman behalf of the challenging heirs against the decision of the court of Appeal of the Northern States in its Civil appeal number 72/2018.

The challenge satisfied all its formed requirement, including the date character and obtained the permission according to Articles (157,190,189) of the law of civil procedure, which means accepting challenge in form.

In the subject as it appears from the papers, the challengers raised suit number (171/2015)before Al Dabba District Court against the challenge, claiming declaring their right of possessing the land it aimed in their suit, in addition to court fees and the advocate costs. It state in the suit, that the plaintiffs- the advocate, are the hires of the Iate Ibrahim Mohammed Al Noor who was possessing the land in sagia (148) Tangasi and he planted date trees on it After his death the possession devolved to his hires .The challenge (the defendant) trespassed the said land and made a fence on it, and water pump and cultivated date trees, which caused the heirs to raise this suit and the claims therein .

The defendant admitted that the challengers are the heirs of the late Ibrahim Mohammed Al Noor, and he was in possession of the land in sagia (148) Tangasi, and added that his possession had no relation with the land of the challengers and denied the trespass and the land is his and he possessed it legally, and asked  for deletion of the suit with its fees.

After hearing the suit the court of first instance passed a Judgement deleting the suit with its fees, the Judgement was confirmed by the two courts of second an third class.

This challenge by cassation was presented, in which the challengers heirs claimed that the Judgement was against the rules of evidence, because the challenging  heirs proved this possession of the land and that the possession devolved to thin after the death of their testator and this was also proved by witness and the finding of productive date trees clearly prove the lack of interruption of the possession.

The petition was notified and the reply to the memorandum of the challenge was lodged by advocate Malak Mohammed El Yas, seizing of the challenged Judgement requesting the cancel late of the challenge.

After reviewing the papers, what is proved to us is that the disputed land is a government land, that means it is unregistered land according to the Settlement and Registration of Lands Act 1925.

Its landmark is not set out and no engineering sketch is deposited to show its landmarks, to enable the court of first instance to issue an enforceable Judgement, this leads us to say that, the process in the suit and even its acceptance from the start, without depositing a sketch obviously showing the land in dispute, is contravening the rules, complied, in considering this type of suits.

It is also known that the disputed land, is the land claimed by the parties to the challengers, and in this suit it is the land on which the trespass happened as claimed, in accordance with the claim of the challenges. This Thus it is inescapable to rescind the Judgements of the lower courts and return the papers to the court of first Instance to proceed in the suit from the start, upon the direction in this Judgement.

Judge: Algaily Sidig AbuGroon

Date: 6/1/2019

I concur.

Judge: Mohamed Abd Rahman Mustfa

Date: 6/1/2019

I concur.

The final order:

1. Rescind the Judgements of the lower courts.
2. Return the papers to the court of first instances to proceed in the suit from the start, as directed in this Judgement.

Abdel Aziz Fath Rahman Abdin

    Judge of the Supreme Court

        President of the circuit

                6/1/2019