Revision •

. (1'Cl4~ir~1'.l9~1).l!iiftliUp;J,,The . relevant facts of .this case are as.
follows: At the beginning of August 1942, Sagia 101, Nuri, was registered
in. the names of a number of co-owners ino1uding the first.and seoond, but

not the third defendant.· On August 5th the first and second defendants,

who are absentees, through an agent, Mohamed Kheir Ali E1 .Bashab, presented
a petition to the Nuri Native Court asking for its approval on behalf' of'

* Court 1 Creed, L. S. and ,Cumings, C. J •

the Governor to the sale of their shares in the sagia to the third ·defendant.
The. Native Court had instructions from the District Commissioner that they
'i'lere not to approve such a sale without first informing co-owner-s of it.

The third defenda~t ~leges that both plaintiffs at that time renounoed

the right to pre-empt, Abdullah personally before the court by declaration
on the back of the petition for sale, and Dar El Salam to him through her
father. In our opinion neither of these alleged renunciations has been'
proved: the Native CoU!'-~ members do not support the allegation that
Abdullah reno~~ced before them, ald the evidence about Dar ~l Salam's

father renouncing i~ much too indefinite. But it is certain that both
plaintiffs kne •• of the sale by August 15th, for on that day both of them

put in a claim -to pre-empt to the court, and the court passed it to the

Land Regist~- for service of the pre-emption notices. That was all in order,
so that, if the Land Regist~ had £6nt out the notioes, there could have
been no questic:n [ut that the plaintiffs had prosecuted their claim to
pre-emption in time. But t~e Land Regist~ took no aotion and-returned

the petitions to the court on the ground that "no sale had been submitted,"
which was wl'ong, though it is true that registration of the sale was not
completed until August 31st. B.y that time another person called Abdel
Rahman El Hasaan , 1-1l10 is the st ep-father of Abdullah, the first plaint iff,
and the husband of Dar El Salam, the second plaintiff, had instituted a

civil suit against all the registered owners of the sagia, in which he
claimed to have acquired it by prescription. In that civil suit the
plaintiffs Here not summoned. This was due to another mistake in the

Land RegistI"',f, this time in giving' the cert ificate of search i but of

course both plaintiffs must have known of the suit, and they took no part

in it, and took no further action to prosecute their pre-emption claims
until December- 9th, the day after the prescription suit had been dismissed,
when they. submitted new pre-emption petitions, on which this suit has
prooeeded.

The Distz'iot Judge, after conducting a careful trial, failed to set

ou"!; the relevant facts in his judgment, as he should have done in such a
complicated affair, and d.ismissed the claim of plaintiffs for reasons whioh
we find it difficult to follow; that judgm~nt was confirmed on an application
for revision.

The District J'udge found that the plaintiffs renounced their right to
pre-empt. It seems to·us that a]l that'is proved against each one is that
he or she,} hs,ving put in.a petition claiming pre-emptioi. did not prosecute,

that petition while the prescription suit was going on, and that he, or
she, did not trouble to oppose that suit. That hardly seems to us to

prove that each plaintiff renounced the right to pre-empt; might not each
be taking up this position, "I shall be happy to see the prescription claim
succeed for by it ll\Y step-father (or husband) •. lill get the 'l-1hole sagia for
nothing and that vJill do me good; but , if hs fails, then I shall proceed
with the pre-emption claim that I have already put in and get a small

share on payment."

The other ground on which the District Judge dismissed the claim

was that the plaintiffs had lost their right to pre~mpt by reason. of

section 16(c) of the Pre-emption Ordinance 1928. The first question

that arises on that is, of course, whether each plaintiff did not within

15 ~~s of the time each had ccgn i.zance of the sale take the steps

mentioned in section 11. Section 11 says that a person seel:ing to pre-

empt shall serve notice on the vendor a~d vurchaser, and.within. 30 days

from the service of such notice shall illsti"':;ut" a pre-emption suit, and it
goes on to say that in.the case of registered lar.i the pre-emption notioe
shall be served through the Land Registry. Here the plaintiffs did

peti.,tion the Land Registry to serve the notices vlit,1.b the 15 days, but the
Registry "lrongly did not serve the notices, and so there was no period of

30 days \~ithin which, according to the section, a ch"il suit had to be
instituted. Nevertheless, when one cJnsiders that nearly four months elapsed
after .the plaintiffs put in their petition cf AU~JSt 15, 1942, during which
they did nothing, making no complaint to the court or the Registry about
notices not having been served, we hold that, however understandable that
d.elay might have been (for a pre-emption claim was futile if the prescription
claim was to succeed), still the plaintiffs vlere out of time under the
ordmance when they sought to go on vlith their claim in December.

But that does not automatically mean the dismissal of their suit,
.because in the peculiar circumstances of this case there must obviously

be a serious point whether or not the court should use its power under
section 19 to extend the time in favour of the plaintiffs. There is
clearly something to be said for the plaintiffs - they had put in a claim
in time to the Land Registry, and it was by a mistake of the Registry
that that claim had not been duly proceeded with, and, when nothing
happened, it I·/as on the face of it fairly re,asonable :e"or them to have
awaited the result of the prescription suit. Yet it is clear that both
the District Judge and the Judge of the High Court took such a strong view

against the plaintiffs that they would not have given them time. It

seems that both judges ,-lere satisfied that this was not a genuine claim

to pre-emption at all, and that it was really the claim of an outsider,
Abdel Rahman El Hassan, the plaintiff in the prescription suit. Apparently
Abdel Rahman, failing in t.hat suit, put up the plaintiffs to exercise
rights to pre-empt, whereas in reality the land is to go to Abdel Rahman,
who can do this through being the step-father of Abdullah (who is only

18), and the husband of Dar El Salam, who from her evidenc& clearly is
co~pletely under his control and knows nothing about this claim. The
evide)'>J)e that satisfied both judges that the pre-emption claim was not

a genuo/e one seems to us rather thin, but as both judges were very
impressed by it, we think it would not be right for us now to exercise

ou~ discretion and give plaintiffs more time.

There will therefore be a decree dismissing the applicati~n and
confirming the decree of the District Judge. There is no question of
costs, as p~aintiffs have failed in all courts and the defendants have
no advocate's costs.

Creed, L.S.: I concur.                                                                                                                                                                                               -                                      -

Application dismissed.