Case No.:

PC-.REV.143, 1959 (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription- Adverse possession—possible by vendor against vendee Land Law_Prescription_Adverse possession—possible by vendor against vendee

When a vendor of land remains in possession after the sale, and that possession is proved to be peaceable, public, uninterrupted and adverse to the right of the purchaser for the whole prescriptive period, the vendor is entitled to acquire title by prescription.

Judgment

(PROVINCE COURT)

ABU ZEID ABU BAKR v. HEIRS OF SHAREEF ABDEL SALAM

PC-.REV.143, 1959 (Ed Darner)

Osman LI Tayeb P.1. November 54, 1959: —This is a settlement appeal referred to this court by the Hon. Chief Justice under Land Settlement and Registration Ordinance, s. 19 (3), for determination.

The case is in respect of one kirat in sagia No. 76, Toshi Village, Dongola District. This plot was obtained by sale from respondents’ predecessor in title, and was registered in name of applicant in 1941 or 5944. Before the Registration Officer, respondents applied for re-registration of the one kirat in their names on the ground that they had been in continuous possession of the share before and after its registration in the name of applicant, and that they had acquired prescriptive title to it. After hearing their evidence the Registration Officer re-registered that share in the name of respondents.

Applicant applied to the Settlement Officer against the decision of the Registration Officer. The Settlement Officer decided the case on the issue:

“Whether applicant has been in peaceable public and uninterrupted continuous possession from the date of sale in 1944 up to now.”

The Settlement Officer heard the evidence adduced and decided that applicant has not been in possession. but that respondents were the persons in possession; and so he dismissed the case of applicant and affirmed the decision of the Registration Officer. Though the evidence was not carefully recorded, it ultimately shows that respondents have been in possession of the plot after it was registered in the name of applicant. The important question that has to be answered for the disposal of the case is whether the vendor or his successors being in possession can acquire prescriptive title in respect of the land sold against the vendee. it seems that the answer is found in the application of the general rules of the law of prescription, that there is no general exception, in case of vendor and purchaser. When the vendor remains in possession after the sale, and that possession is proved to be peaceable, public, uninterrupted, continuous and adverse to the right of the purchaser for the whole prescriptive period, the vendor is entitled to succeed in acquiring title. The law is stated by Rustomji Law of Limitation and Adverse Possession 745 (6th ed. 1958) as follows:

. and time hereunder would run forthwith from date of sale, as the vendor’s possession after the sale is prima fade adverse to the vendee (i.e., if the vendor remains in possession after a conveyance by time his possession is presumed to be adverse to that of the vendee where it is inconsistent with the terms of the conveyance, and by remaining in possession for the full statutory period adversely to the vendee, he (the vendor) becomes reinvested with the title), and the mere fact that the sale deed was registered subsequently to its execution will not prevent limitation running forthwith.”

in this case the predecessor of respondents was the vendor, he sold one kirat to applicant and the sale was registered in x The vendor remained in possession and after his death he was succeeded by respondents in possession up to the institution of these proceedings. The successive possession continued for more than so years; it was prima facie adverse to the title of applicant. The latter could not prove interruption or permission,

In the circumstances applicant cannot succeed in his claim.

The application is summarily dismissed.