Land Law-Buildings situated on land of another-Registration-Customary
rights

Land Registration-Building situated on land of another

Where persons have constructed and occupied buildings on the land of
another with his consen', and have thereby acquired customary rights in the
land, neither the proprietor nor his successor in title may evict such pc -ons
without notice and compensation, if even that is available to the propr . [
under the circumstar .:es, and the failure to register the right of occup., .. )
does not affect its vaudity,

Land Settlement r r.d Registration Ordinance 1925, s. 27 (h).

Revision

January 6. 1 'i 36. Owen CiL: This is an appeal from the deci-
sion of the High Court reversing a judgement of the district judge, Omd-
urman. The fact; are short and not in dispute: Ahmed Bedri, the
plaintiff in the District Court and the appellant in the Court of Appeal,
is the registered owner of hosh No. 4/1/655 Omdurman Town. He
purchased it from its original owners, the heirs of one Mohammed
Eisa, by a series of transactions dating from 1932. In that year he
bought the partitioned shares of three of the heirs, and also portions of
the undivided shares in the remainder of the property from the two co-
owners. On March 1, 1933, by a further transaction, he obtained
another addition to his purchase, as a result of which there was left of
the original area only 276 square metres, of which Abbas Mohammed

• Court: Owen C.J. and Gorman J.

Eisa held 122 square metres, and Ahmed Mohammed Eisa 154 square
metres in undivided shares. The remainder was partitioned and be--
longed to Ahmed Bedri. In July of 1935 he purchased the undi-
vided share of Ahmed Mohammed Eisa.

On that part of the plot now owned in undivided shares by Ahmed
Bedri and Abbas Mohammed Eisa there existed two rooms and a kit-
chen. These premises were occupied by two women, Fatoma and El
Taya Banat Mohammed Eisa, old family retainers of the original
owner, who had permitted them to build these hoUSes on his property
for their own use and occupation. In fact, in 1921 they had ob-
tained from the district judge, Omdurman a declaration respecting
these buildings to the effect that they had "the right in the premises
exclusive of any right to the land in which these premises are stand-
ing." These women had been and were at all material times in ex-
clusive occupation of these rooms or buildings.

On August 19, 1935, Ahmed Bedri and his co-owner, Abbas
Mohammed Eisa, brought an action in the District Court, claiming
possession of these buildings, and asking for an order for eviction of
the women. The action was defended by them on the ground that the
buildings were theirs and that they were entitled to occupy them by
virtue of their arrangement with the original owner Mohammed Eisa
and the judgement of 1921. During the progress of the case Ahmed
Bedri purchased the share of his co-plaintiff Abbas and thus became,
for the first time, sale owner of the property.

The district judge decided that the plaintiff was entitled to suc-
ceed on the ground that the occupants of the buildings (the defend-
ants) had no right in the land and that any improvement in the land
brought about by the buildings they had put up was a matter for a
claim against vendors. This decision was reversed by the judge of
the High Court. The claim for possession was dismissed, but the case
was referred back to the district judge for rehearing on the issue as to
what sum the defendants were entitled in redemption of their interests-
in the buildings. The plaintiff bas appealed asking this court to re-
store the judgement of the district judge. He argues that the rights of
the respondents are rights against the heirs of Mohammed Eisa only,
that the arrangement between them and Mohammed Eisa was a per-
sonal one and did not affect the land on which the buildings stood,
and alternatively, if the land was affected, the right given them was a
registrable right and the failure to register deprives them of any claim
against a bona fide purchaser for value.

The judge of the High Court decided that the right given to the
respondents was a right affecting the land, but was within the provi-
sions of section 27 (h) of the Land Settlement and Registration Ordi-
nance 1925, which provides that all registered land shall be deemed to
be subject (inter alia) to "the customary right of occupation of houses
built in the Jand with the consent of the proprietor of his predecessor in
title," without notification of the existence of such right in the register.
But even if this right was not as found by the judge of the High Court,
and was in fact the mere right to be compensated when the will of the
proprietor was determined by notice to quit, in my view, the position
of the appellant can be no better than that of the heirs of the original
proprietor, viz., the vendors. He has identified himself with them.
This action for ejectment was not launched by him as sole owner of the
property. He sued, together with his co-owner (an heir of the original
proprietor), for ejectment claiming that the respondents were occupy-
ing the premises under no agreement whatsoever, and that their occu-
pation could be determined at the will of the proprietor. Shortly after
the case began he purchased the rights of his co-plaintiff. Thus, it
seems to me, he stands in the shoes of the vendors, and the rigbts (if
any) of the respondents against the vendors are rights against him, for
he has had notice of them, and this is true whether those rights are
registrable or not.

The rights of respondents are dependent upon an agreement, and
the next point to be decided is exactly what those rights were. It has
not been decided conclusively whether or not those rights were the cus-
tomary ones referred in section 27 (h) of the Ordinance, or whether
they were the rights suggested by the appellant in argument, namely,
that the use and occupation of the buildings was terminable by notice
at any time on payment of compensation by the proprietor. For the
purposes of the action for ejectment, it was unnecessary to do more
than reject it, but the judge of the High Court chose to refer the case
back to the district judge for assessment of the sum payable to the re-
spondents for the redemption of their interests. This order was made
as a convenient and expedient method of settling once and for an the
dispute between the parties, and, for my part, I think that an order of
the kind was a proper one. But the order must be more explicit. Be-
fore assessment can be made the exact nature of the right or agreement
must be ascertained. If it is the customary right which the judge of the
High Court thought it was then the nature and incidents of the custom
must be defined: What length of occupation does the custom pre-