Prescription-Animus domini-Pre-emption petition-Abandonment oj rights al-
ready acquired

In 1906 plaintiff sold a share in a sagia at Gereif West to the first
defendants, which share was subsequently .registered to them. Plaintiff.
however, remained in undisturbed possession, cultivating the land as well
as collecting rents. In 1938 the first defendants sold the share by regis-
tered transfer to the second defendant, whereupon plaintiff presented a peti-
tion at the Land Registry seeking to pre-empt. Being informed that he had
no such right, he sued on a claim by prescription.

Held: (i) The fact that plaintiff was ignorant of the law of prescrip-
tive acquisition until shortly before action brought did not negative his in-
tention to acquire title. The formation of a clear and deliberate intention
to acquire the owner's title under the Jaw of acquisitive prescription is not
a condition precedent to the commencement of a period of prescription.
Plaintiff had sufficient animus domini to support his claim to ownership by
long possession.

(ii) By presenting his petition for pre-emption to the Land Registry
plaintiff did not abandon his rights against the defendants.

Prescription and Limitation Ordinance 1928, s. 4 (6).

Revision

Advocate: Mr. Francoudi ... for defendants.

November 15, 1939. Creed, C.l. This is an application for
revision of the decree of the judge of the High Court reversing the
decree of the district judge attached to the High Court, by which
the latter had declared that the plaintiff had acquired the ownership
of 2% habls of land in sagia 13, Gereif West, by virtue of acquisitive
prescription, and had made a consequential order for rectification of
the register.

• Court: Creed, C.l .. Evans R.G.L. and Harrison J.

The facts of the case are briefly as follows: In 1906 the plaintiff
sold 21,4 habls in sagia 13, Gereif West, to the first defendants,
Messrs. Stamatopoulos, and the sale was duly registered at the subse-
quent land settlement. The plaintiff, however, remained in possession
of the land, and his possession was undisturbed until the beginning
of the year 1939. During this period the plaintiff, in the words of
the district judge, "exercised absolute control over this land, first by
cultivating it himself and secondly by letting it to others and collecting
the rent for his own benefit. He paid the Government taxes on the
land in his own name, even when the land was let to others". In
the year 1938 Messrs. Stamatopoulos apparently suddenly awoke to
the fact that this land was still registered in their name, and on
September 14, 1938, sold the land by a registered deed of sale to
the second defendant, EJ Rayah El Saeed. On hearing of this, the
plaintiff went to the Land Registry and petitioned for pre-emption
of the' sale. He was informed that, as he had no holding in the
sagia, he had no right to pre-empt, and he therefore took no further
action on the petition for pre-emption. He was, however, determined
not to give up this land which had been in his uninterrupted pos-
session for so many years, and on December 14, 1938, he presented
a petition to the High Court claiming the land under the Prescription
and Limitation Ordinance 1928, and asked for the registration to
be altered in his favour, I The case was heard by the district judge
attached to the High Court, who gave a decree for the plaintiff. On
revision, the decision of the district judge was reversed by the judge
of the High Court on the ground that the plaintiff, by presenting a
petition to the Land Registry for pre-emption, had abandoned the
right which he had acquired by his long possession.

The plaintitI has applied to this Court for revision. Defendants
have been represented by Mr. Francoudi.

Two major points have been pressed in this court:

( 1) It is alleged by Mr. Francoudi that the plaintiff had never
at any time either acquired or been in process of acquiring any right
of ownership over this land under the Prescription and Limitation
Ordinance 1928, because he had no intention at any time to acquire
the ownership under the law of acquisitive prescription. Mr Francoudi
points out that the plaintiff himself admitted in cross-examination
that he was unaware of the existence of this law until very shortly
before he raised the present action. Mr. Francoudi is not satisfied
with alleging that, in order to acquire a title by long possession, the

possessor must during the period of prescription have animus domini,
or an intention to behave as owner; he urges that. before a period
of prescription can begin, the possessor must have formed a clear
and deliberate intention to acquire all the rights of the owner under
the law of acquisitive prescription. 1 find myself entirely unable to
accept the contention that the formation of a clear and deliberate
intention to acquire the owner's title under the law of acquisitive pre-
scription is a condition precedent to the commencement of a period
of prescription. If this submission is rejecteJ-and I have no hesita-
tion in rejecting it-and if the proposition is accepted that mere pos-
session without animus domini, or the manifestation of an intention
to behave as owner, is not enough to support a claim to ownership
by long possession, then I agree with the district judge and the judge
of the High Court in asking what more dominium could any owner
have exercised, or have intended to exercise, over his land than the
present plaintiff over these 2~ habls during the period of' thirty odd
years after 1906. A nimus domini is to be inferred from the exercise
of the rights of ownership and behaviour as owner. The possession
of the plaintiff was adverse to the registered owner's title, and it
appears to me incontroversible that at the moment of presenting his
petition to the Land Registry for pre-emption in 1938 the plaintiff
had an irresistible claim to ownership on the grounds of long possession.
It is submitted that the act of the plaintiff in presenting this petition
proves that at no time between 1906 and 1938 had the plaintiff the
requisite animus domini, as at the first sign of trouble he offered to
purchase the property. I do not agree. The act, in my view, has
the appearance of a sudden and ill-considered act of an ignorant man
who, finding himself faced with an attempt by a purchaser from the
registered owner to obtain possession, was determined to retain pos-
session of the land at all costs, and was ignorant, as many persons
are ignorant, of the rights of a person who has acquired a right by
long possession vis-a-vis a bona fide purchaser for value from a
registered proprietor.

(2) The second point of importance is this. It is alleged, and
has been held by the learned judge of the High Court, that by pre-
senting his petition of pre-emption the plaintiff abandoned whatever
rights he had acquired against the registered proprietor. This point.
although raised before the district judge, was not satisfactorily dealt
with by him in his judgement. It is true, as is urged, that the legal
estate can only be vested in a possessor. who - has acquired rights
under section 3 of the Prescription and Limitation Ordinance. by his