AHMED EL BESHIR AHMED RAHMATALLA, Applicant-Plaintiff v. HEIRS OF ALI MOHAMMED RAHMAT ALLA, Respondents
Land Registration-Failure to register purchase or acquisition by prescription
within a reasonable time
Prescription-Registration of the title acquired-Application to court for rectifi-
cation must be made within a reasonable time
Applicant purchased two plots of registered land in 1904 and 1914 re-
spectively and registered neither transaction. He went into possession of
each upon purchase, and retained possession until 1929. In this action he
applied for rectification of the register by right of prescription.
Held: The power to rectify the register given to the court by section
85 of the Land Settlement and Registration Ordinance 1925 is permissive,
and ought not to be exercised in favour of a squatter who does not apply
for rectification within a reasonable time after acquiring a prescriptive right
to the land. Applicant ought to have applied for rectification in 1914 and
1924. His application was too late and must be rejected.
Land Settlement and Registration Ordinance 1925, ss. 28 and 85.
Revision
June 23, 1935. Gorman, Acting c.J.: In the case of the first
purchase the applicant ought to have notified the settlement officer of
his ownership, and in the two subsequent purchases the applicant
ought to have notified the land registry within two months. In neither
case did he do so. The Government land registry has been created
• Court: Gorman, Acting C.l.
so that the ownership of land may be certain, and it is of the first
importance that transactions be registered as required by section 28
of the Land Settlement and Registration Ordinance, so that the register
may be kept up to date, and I think the time has come to impress
upon purchasers of land that, if they fail to register, they run a grave
risk of losing their purchase, for the register will not, after the final
date for registration, be rectified save for good reasons, such as are
set out in section 85 of the Ordinance.
In the present case, however, it is stated that the purchaser went
into occupation and retained possession in the case of the first parcel
from 1904 until 1929, and in the case of the second and third parcels
from 1914 until 1929, and that therefore he comes within section 85
(c) of the Ordinance, and the court ought to rectify the register in his
favour.
I do not agree with this contention. Acquisition of title by pre-
scription is not a transaction which under section 28 can be registered
by the registrar. But if such acquisition takes place, it is manifest that
the power must be given to someone to effect registration. The
power is by section 85 given to the court by way of rectification.
But it is to be noted, (1) that the power is permissive only ("the
court may"), and (2) the person claiming to have prescribed must
make an application to this effect. I will not discuss here whether
it was even intended that a person who came into possession under a
purchase which he failed to register might have the register rectified
under this section; and whether the section did not envisage merely
the case of a person not otherwise entitled acquiring a title by prescrip-
tion, since this case alone necessitates the provisions of the section to
enable the applicant to get on the register. For it seems to me that a
person who acquires a title by prescription ought to be in no better
position than a person who acquires by purchase, and has at least
the same obligation to register that which he acquired, so that the
register be kept up to date, and therefore, if such registration is not
effected by him within a reasonable time, he, like the purchaser who
fails to register his purchase within a reasonable time as required by
section 28; runs the risk of losing the benefit of his prescriptive title
by the court refusing to rectify in his favour. In the present case
any prescriptive title which might have been acquired was acquired in
1914 and 1924 respectively. No steps were taken and the court should
refuse now to rectify.
Revision dismissed