(COURT OF APPEAL)

ABDEL RAHIM ELIAS & OTHERS v. HEIRS OF MUSA KARRAR & OTHERS

AC-REV-153-1967

Principles

  Prescription—Settlement decision no bar to civil suit based on prescription once registration becomes final—Period of prescriptive possession, not interrupted by registration or re-regestraion by setlement—Land Se & Registration Ordinance, ss. ig, 18, 40, 85

         A settlement decision is not a bar to a civil suit based on prescriptive title over the settled land. Any person may institute a suit for rectification of the register for any of the reasons mentioned in the Land Settlement and Registration Ordinance, s. 85, provided that the register has become final under section 18 of the said Ordinance.
       The period of prescriptive possession can continue against successive owners and proprietors whether those proprietors are registered for the first time by the settlement or re-registered on subsequent dealings.

Judgment

     Advocate: Ahmed M. Fadl ……………………………………………………. For applicants

            Osman El Tayeb I. Nosember 13, 1967: —In this case, in order to put the matter in controversy clear before our eyes, I prefer to quote hereunder the full text of the judgrsent of the learned Province Judge, Northern Province in which he affireed a similar judgement written by the learned District Judge Berber: —

      “This suit was allowed on June 26, 1965, to prove the prescriptive right of plaintiffs in Sagias Nos: 50, 51, 52 Abu Groon, registered in the name of defendarts vide the decision of the Settlement Officer made on May 19, I964 on reliance of the principle derived from the judgment in Heirs of El Naya Abdalici v. Abdalla Abdalla Adris (1960) S.L.J.R. 58, in which, it was decided that the settlement decision is not a bar to a civil suit based on prescription. But this principle is not good law now because of the decision of the Court of Appeal in Owners of Sagia 78 Artoli v. Owner of Sagia 54 El Goal, AC-REV-63-1965, and Owners of Sogia 80 Artoli v. Owners of Sagia 54 Artoli, AC-REV- 586-1965, where the Chief Justice decided that the only remedy open for a person objecting to a settlement decision is an appeal to the approprn authority within the period prescribed by law.

        This decision has not dealt with the position of suits already allowed on the basis of Heirs of El Nayal’s case, and whether parties to those suits are entitled to pursue their claims by revisions, the time allowed for which has elapsed, which made most of the courts dismiss those suits on the basis of the later decision of Owners of Sagia 78 Artoli v. Owners of Sagia 54 El Goal.

     I think that any case, which has been instituted within six months from the date of the settlement decision, the period fixed by law for appealing against the same, can be considered as an appeal against such order, but cases instituted after that should be dismissed.

    Therefore, I decide to dismiss this application as no appeal against the settlement decision was made, and as this suit was not instituted within six months from the settlement decision so that I may consider it an appeal to that deci

It appears from this judgment that the question of importance and significance is whether the jsdgment in the case of Owners of Sagia No. 78 Artoli, AC-REV-6 repealed that in the case of Heirs of El Nayal, NPC REV-111-59 (1960) S.L.J.R. 58. In my opinion it does not. The main point of distinction between the two cases is that that of Owners of Sagia No. 78 Artoli was instituted in the District Court before the settlement register had become final under Lani Settlement and Registration Ordinance, s. 18, and the other was instituted after it had become final. The judgment in the former does not show the relevant dates; but the reference to the

record of the revision clearly showed that the case was instituted before the expiration of six months from the date of the settlement and was still working in the area. The record reveals another important fact, which will be considered later, that the parties in the case were the same parties in the contest before the settlement and the cause of action was also the same.

      The ratio of the judgment in this case and all that it did is to pronounce the rule that no civil suit has to be allowed in a matter subject to settlement proceedings, unless and until all the remedies under these proceedings have been exhausted up to the stage of revisions to the Province Judge and the Court of Appeal, and the register compiled by the settlement has become final according to the provisions of the Land Settlement and Registration Ordinance.

    It must be emphasised that the rule in Heirs of El Nayal still holds good and represents the present state of the law to the effect that any person may institute a suit for rectification of the register for any of the reasons mentioned in Land Settlement and Registration Ordinance, s. 85, provided that the register has become final under section 18 of the Ordinance. The fact that the settlement which has made that register was of recent occurrence does not matter. It seems to me that the right to institute a suit in respect of land recently settled is not barred by the mere occurrence of the settlement proceedings, but it is subject to the operation of Civil Justice Ordinance, s. 40. Where the cause of action and the parties to the suit are substantially the same the settlement proceedings would form previous adjudications as regards the suit.

     According to the judgment above-quoted it appears that the settlement proceedings would bar any subsequent proceedings before any court, between any parties or in respect of any cause of action whether it was relied on in the settlement proceedings, or between the same or different parties, or whether it occured before the settlement or arose out of it. This opinion is definitely wrong. When the register of a settlement. whether that made by the Settlement Officer or any alteration or amendment made to it by the Settlement Officer, has become final after the expiration of the period of six months therefrom the Settlement Officer has accomplished his job and he has no power in law to tamper with or hear any subsequent dispute about it. The remedy of an aggrieved person from the final decision of a settlement rests with the Civil Courts to which he can apply for rectification. A person who was a party in the settlement proceedings has, of course, a remedy by way of revision to the Province Court with respect to the cause of action or points of defence or any other point considered and determined in the settlement; but where a litigant was not a party to the settlement proceedings, or he has no right of applying

for revision, or where his right is not barred by previous adjudication then he is entitled to resort to the Civil Courts to have his claim heard and determined.

    It is worthwhile mentioning that under Land Settlement and Registration Ordinance, s. 15 (2) the Settlement Officer may, even before the finality of the register, refer a petitioner to the District Court to have his case therein heard and determined. It may be inadvisable for the Settlement Officer to do so; and he should not exercise his power of reference except very sparingly and in difficult cases that may cause considerable delay to the close of the settlement. It is true that this case of reference of the petitioner by the Settlement Officer is different in the eye of the law from the case of the litigant who proceeds directly to the Civil Court. He has no such right of being heard in the Civil Court before the finality of the register.

    In the present case applicants instituted their suit about one year from the date of the decision of the settlement, i.e. about six months after the finality of the register. They are entitled therefore, to have their case heard and determined according to its merits. It is a case of prescription in which it is alleged that the prescriptive possession has started some time before the settlement, but as the settlement proceedings are not available to us, we do not know whether this was the same cause of action in the contest before the Settlement Officer. It is a matter for the court of first instance to decide on this fact and as to whether the cause of action in this case is barred by previous adjudication in the settlement proceedings.

    Ihave no doubt in my mind that afgter the rigister have become final it becomes subject to rectification under any of the reasons mentioned in the land settlment and registered ordinance, s.85 The firest rigistration or re-rigistiration

By the settlment ........