Case No.:

(HC-CS-514-1957)

Court:

The High Court

Issue No.:

1960

Principles

·  Land settlement and registration-Re91ste1 land-CircUmstdht in which register will be amended-Onus of proof Civil practice and procedureMat rs not raised on pleadings cannot be taken by the court-Declaration of ownership of land as remedy Tort-Trespass-Wrongful occupation of land

 
A partition action is not the proper procedure to test the ownership of adjacent plots of registered land. In claims for the rectification of registration of land on the grounds of fraud ‘or mistake (under Land Settlement and Registration Ordinance, ss. 85, 86) the onus of proof is on the party alleging such fraud or mistake. The court will be reluctant to disturb a settlement, which has stood without apparent challenge for a period. e.g., of thirteen years. Matters not raised by the parties on the pleadings cannot be taken by the court. In the type uf case before the court a declaration of ownership and of entitlement to peaceful possession of land may be an appropria remedy, to be followed by a tort case—in trespass—and ejectment if necessary.

Judgment

HIGH COURT

ABDUL LATIF ABDUL MUTALEB AND ANOTHER

V.

ABBAS KHOGALI AND OTHERS

(HC-CS-514-1957)

Action

The facts sufficiently appear from the judgment.

Advocates: M. A. Orabi……… for plaintiffs

                   Ali Mohamed Ibrahim… for defendants

September 14, 1960. Tewulk Cotran Acting I.: —Plot 67 Block 3 El Goz, Khartoum, comprising an area of 1240 metres, is divided into two equal parts, northern and southern. The northern part is registered in the name of-the defendants in undivided shares. The southern part is registered in the name of the plaintiffs in undivided shares. The registration was made, as is clear from the Settleme records (Exh. P. 1), by a Settlement Officer on April 27, 1947.

Advocate Orabi, on behalf of the plaintiffs, who are the registered owners of the southern part, has lodged a case agairtst the defendants (the owners of the northern part) asking for partition of the said plot. I doubt very much if partition is the proper remedy in this case. I doubt if a case of legal partition arises at all. Here there is no dispute between co-owners of undivided land. The plot in question is divided and plaintiffs are the registered owners. It seems that the defendants have ousted them from possession and it therefore appears to me that this is an action in the nature of an originating summons for a declaration that plaintiffs are entitled to a peaceful possession of the land. During the hearing the case became different. The defendants then claimed that they were the owners of all the plot of land and that the registration of the southern part in the plaintiffs’ name by the Land Settlement Tribunal was mistaken or fraudu- lent. In essence Iam now deciding whether the defendants have in fact proved mistake or fraud, and whether there is any justification for altering in defendants’ favotir the Land Register and ordering the registration of the southern part of Plot Block 3 El Goz in their name, thus disturbing a settlement that had stood without apparent challenge for a period of thirteen years.

The history of the plot as appears to me from the evidence is as follows:

The plot was acquired by one Khogali Sulliman and he built a house on it. He had several children of whom Abdul Mutaleb was the eldest, according to the defendants’ statement to the judge at page 5 of the record, but who became second eldest in defendant Abbas’s statement at page 59. Khogali worked on the Sagia and his son Abdul Mutaleb helped his father in cultivation. Abdul Mutaleb married a woman called Ujba and a room in the southern part was built for Abdul Mutaleb and his wife. There was also a storeroom adjoining. It is not certain who paid for the extension- Abdul Mutaleb or the old man (Khogali his fathen. I would rather think that the money was Abdul Mutaleb’s and was the fruit of his labour in his father’s business. Ujba did not bear Abdul Mutaleb any children and he divorced her. Abdul Mutaleb then married a woman from Gereif- acertain Batoul, by whom he had two children Abdul Latif and Fatma, the present plaintiffs. Abdul Mutaleb on his second marriage lived partly in the extension built in his father’s house, but mostly with his wife’s family in Gereif. He continued however to work in the Sagia with his father, when suddenly he died, apparently of a heart attack, when at the prime of his life in the year 1930 or 1931. His two young children lived with their mother in Gereif until about the year 1944 when the old man Khogali died. His son Abbas, one of the present defendants, then brought his brother Abdul Mutaleb’s widow and the two children to the house to live. They lived in the southern part, i.e., the part occupied formerly by Abdul Mutaleb. The widow Batoul then made the store into a room, built a kitchen and made the part self-contained and lived there with her two children. In 1947 the settlement came. The Settlement Committee minuted as follows: “Plot No. 197 on the demarcation plan comprising 1119 sq. metres is partly taken by a road. Demolition is three rooms and a boundary wall for which compensation of £S.28.750m/ms is awarded. Owners are also awarded Plot No 67 in Block 3 comprising 1240 sq. metres, Khogali Sulliman (north) and Batoul hint Hussein (south) are the original owners who built old plot 197 more than twenty years ago. The heirs of Khogali Sulliman are Abbas Ali, Mohammad, Ibrahim, Hawa and Sulha awlad. Khojali Sulliman and Fatma hint Khogali Ahmad (wife). Batoul bint Hussein appeared before me this day and said that her share (south) was to be registered in the name of Abdul Latif and Fatma awlad Abdul Mutaleb Khogali as to half each in undivided shares.

Signed: S. Amin Nabir (Settlement Officer)

Signed: Izz el Din Osman Mousa.”

The defendants want the court to disturb this settlemeiit. In my opinion they cannot do so for two reasons:

First: the pleadings are so fantastically had that it will be a grave error of procedure if the court of its own motion transforms the case into an application by the defendants for rectification of the register on the ground of mistake or fraud.

Secondly: that even if the court could do the above, on the merits of the case, there is not a scintilla of evidence to support defendants’ allega tion that there was mistake, much less fraud, justifying rectification of the register.

The defendants’ evidence is that Abdul Mutaleb, Khogali’s eldest or second eldest child, died almost fourteen years before his father and that, therefore on Khogali’s death, Abdul Mutaleb’s children did not inherit.’ But this is a non sequitur, It does not follow that because Abdul Mutaleb died before his father that he does not own half the house. Abdul Mutaleb-had lived in, built, and cultivated the plot before his death, and it is quite possible that he owned part of the house—the fruit of his own labour. This is the irresistible inference that I must draw from the facts. Abbas and the other co-heirs, or some of them, must have been present at the settlement proceedings and they did not raise any objection to the registration. They kept quiet for eleven years. Notables of the hillat, who knew the lands and houses, were satisfied though they must have known that Abdul Mutaleb himself was dead for sixteen years. Batouj herself lived in that part of the house, built onto it and improved it, paid taxes and rented a suite without any objection from anyone.

In my opinion the plaintiffs are entitled to a declaration that they are the rightful owners in undivided shares of the southern part of Plot 67 Block 3 El Goz, and are entitled to a peaceful occupation thereof and that in so far as the defendants are in possession of that portion of the plot they are trespassers arid all the vigour of the law will be invoked to eject them.

                                               (Judgment for the plaintiffs)

In successions governed by Mohamedan law grandchildren have no claim to succeed if there are living children of the deceased—EDITOR

Application for revision (HC-Revision-577-1960) sub judice,