(COURT OF APPEAL)* Heirs of HASSAN FADL EL MULA ……… Applicants and Heirs of ZEINAB FADL EL MULA …… Respondents (AC-REV-146-1956) Revision Principles · Prescription based on ‘Idafa’ custom — judicial notice of such custom acknowledged, — custom affords adequate basis for adverse possession · District Judge found for the Plaintiffs but was reversed by the Province Judge on the ground that the relationship of the parties prevented adverse possession. In an action by co-heirs for rectification of the register it was proved that prior to the settlement the land belonged to The common ancestor of the parties but in the settlement — following local custom proscribing the appearance of female names on the register — the land was registered in the name of the male heir (the ancestor of Defendant) but the Plaintiffs continued in possession. The (*) Court : M.A. Abu Rannat C.J. and R.C. Soni J. Held: that proof of registration under this custom in some parts of the Sudan is judicially noticed and affords sufficient basis for adverse possession and therefore prevents the operation of section 4 (3) of the Prescription and Limitation Ordinance 1928* Case referred back to District Judge for further evidence. Judgment The facts are fully set out by Abu Rannat C.J. Advocates: Rushdi Boutros ………………for Applicants Mohd. Ahmed Abu Dava ………………for Respondents M.A. Abu Rannat, C.J. This is an application for revision by Advi Rushdi Boutros on behalf of the defendants, the heirs of Hassan Fadl El Mula. The facts are set out in the judgment of the District Judge, Merowe, and I need not repeat them all. The District Judge found that the plaintiffs the heirs of Zeinab FadI El Mula, are entitled to one third of the land which was registered in the name of Hassan Fadl El Mula. The District Judge found that, in fact, the land was prior to the settle the property of Fadl El Mula, the father of Hassan & Zeinab. He also found that Zeinab’s name did not appear on the register at the time of the settlement, because of an established local custom. He further found that there is evidence that the plaintiffs have been in possession of part of the land a fact which revived their interest in the land during all this long time. The Province Judge set aside the District Judge’s decree on the ground that the plaintiffs’ claim by right of prescription might. be defeated, because of the relationship between plaintiffs’ predecessor in title and defendants’ predecessor in title, and he directed that the land should be registered in the name of Fadl El Mula Ahmed. Adv. Rushdi Boutros contends that the registration of the land in the name of Fadl El Mula would defeat defendants’ rights, while, if the land is registered in the name of Fadl El Mula Ahmed at the time of settlement, plaintiffs’ claim would have been barred by lapse of time. Alternatively, he contends that the plaintiffs failed to prove a prescriptive title to one third of the land. (*) Section 4(3) Where from the relationship of the parties or from other special cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the “possession of that other”. The evidence before the District Judge proved that there was a local custom whereby the male member of the family normally registers the land in his name. This custom is not confined to Merowe District. We know that such a custom is known in the Gezira area. It is known there as ‘Idafa Cases’ where the land is normally registered in the name of the elder male member of the family as in those early days it was very difficult for everybody to bring boundery stones from long distances, in order to specify every individuals share on the land. In such cases the Courts of the Sudan have been following the rules of prescription. Those parties who claim that they were entitled to a share in land which did not appear on the register were bound to prove that they were in possession by right of such custom. The proof for a prescriptive title is very strict and it was not sufficient to show that the claimant was in possession of a share without proving the number of feddans or kerats he was actually in possession. In this particular case there is sufficient evidence that the plaintiffs were in possession of part of the land, and that they were growing palm trees on it, but it was not proved the extent of the land that they were cultivating, or the number of palm trees they had planted, or the approximate dates on which these palm trees were planted. We know how difficult it is to produce evidence so strict but we are bound to follow the principles that possession of a specified part should be strictly proved. We, therefore, think that this case should be sent back to the District Judge, Merowe, with directions to hear further evidence as to the approximate area which the plaintiffs were in possession. This we have explained to both parties in this case. It is, therefore, directed that the decree of the Province Judge dated 30.9.1956 be set aside and the case be sent back for hearing of further evidence by the District Judge on the light of our judgment. R.C. Soni, J. — I concur (case remitted back to District Judge Merowi for further evidence)