Land Settlement and Registration - Prescription - Purchase of land by
Government subject to rights acquired by prescriptive claimant -

. \fuether claimant must have brought action to cha.'1ge reli:\~~
o,mership after 10 years but before 20 years if title is to prevail
against the Government.

Prescription - Possession - Act of dominion - How area of actual
·possession is determined - Effect of cultivation of the area.

Prescription - Bona fide purchaser -.Government as purcilaser of land
from private owner prescribed against for more than 10 years but
less than 20 years - Whether claimant's prescriptive claim defeated
by such sale to Government.

The plaintiffs had b~en in adverse possession of certain lands
for more than 10 years but less than 20 years when the rogistered
owner sold the disputed land to th,e Government. The plaintit'fs
argued they had acquired a prescriptive title befcre the Govern~ent
bought the land so that the sale was void or, if not, the sale was
subject to the Land Settlement and Registration Ordinance 1925,

e , 27(f).

In the District Court, it was~: The prescriptive claim, being
for less than .20 years, failed. The claim had been brought against
the Governmept as the registered owner, and the express words of

the Prescription and Limitation Ordinance 1928, s.3 proviso required

a possession of 20 years against the Government.

* Court : ~1. A. Abu Rannat f D.J.
** Court: Maclagan, J.

Action.

On application for revision to the high oourt, the application was
summarily dismissed.

Land Settlement and Regi;tration ordinanoe 1925, s. 21(f).
Presoription and Limitation Ordinanoe 1928, s.3 •

The judgment of the district oourt is follo ed by that of the high
oourt on revision.

M~A~. tlbu' &dna!,., D .• J~.I The plaintiffs are seek~g a '

deolaration that they are entitled to be shown on the land register as
owners of the lands olaimed by them. At the time the actions were

allowed in respect of these olaims, the Government was and is st ill the
registered owners. The Government purchased these lands from the Anglo-
Sudanese Syndioate on ~ 11, 1938. Plaintiffs' olaim is based on

pres oript ion. They assert that they have been in possession of these

lands as of right for a period which is suffioient to give them a pre-
soriptive title, but as some of these olaimants had only been in possession
for 10 years when the Government purchased the land from the Syndicate,

it has beoome neoessary to decide whether the plaintiffs must show 20
years possession or only 10 years.

Nearly all the plaintiffs had been in possession of the whole or
only a portion of these lands when the Government purchased it from the
Syndicate, but as some of these plaintiffs were under a registered life
interest and they surrendered such rights in 1928, the question of the

period has become very material to them.

It is oontended 'on behalf of the plaintiffs that they had already
acquired a pre~criptive title before the Government bought the land,
and that the sale by the Syndicate to the Government was void beoause
the Syndicate had lost its title to the land. It is also oontended on
behalf of the plaintiffs that when the Government bought the land, it

bought it subject to rights in the oourse of being acquired by prescription .
Land Settlement and Registration Ordinanoe 1925 s.21(f). The argument
against the above oontentions, is that the plaintiffs are olaiming
o'll."nership against the Government who are the owners of the land at the

time these claims were brought to the court, and the neoessary period

should be 20 years and not 10. in accordance with the proviso to section
. 3· of the Prescription and Limitation Ordinance 1928. It is also argued

that the plaintiff's ought to have applied for the rectifioation of the

register when they had acquired a presoriptive title and should not sit
by and wait for the court to help them. They did not see that their

right to the land was secure. It ~ be contended that had these plaintiffs
consulted an advocate in 1938 a month before the Government purchased the
land, he might have properly advised them not to apply for the rectification
of the register, because the longer they st~ed on the land, the stronger
their claim would have been. Although Hise as such an advice might have
been, the plaintiffs must realize that <m m-mer is free to alienate his
property and that the possessor at ays on the land subject to the risk

that an owner who feels that his title was precarious is entitled to
transfer it to a person with a better chance for security of the title.

The following example will show that the extended period given to
the Government by the statute does not ahl~s work as a hardship against
private persons. Suppose the Government was owner of Blackacre and that

X has been in possession of Blackaore for 10 years, and then the Government
sold Blackacre to Y. X claims it by right of prescription •. The claim is
of course against Y. Can Y say to X, No:;' You have not acquired a title
against the Government arid therefore you ha~e no right to the land.

In my opinion the period in the present cases should be 20 years

as the Prescription and Limitation Ordinance 1928 does not say we must
enquire as to how Y became the o"l-mer. The ordinance merely says "Provided
that if ownership be claimed against the Government the period shall be
twenty rears instead of ten." The claim is against the Government and

not against the Syndicate and I cannot depart from the express wording

of the Ordinance.

In reference to Ahmed Ali El Hag,the plaintiff in this particular
action alleges he has been in possession of 32.316 feddans in Plot 94",

map 17 Um Senta for 30 years. It is a fact that he was under a registered
life interest which he surrendered on July~l1, 1928. This means that he
has been in adverse possession for a period of 10 years only, and as it
has been decided that the period required should be 20 and not 10 years,
the plaintiff must fail in this claim.

I have to decide the area which has been in actual possession of
the plaintiff during these 10 years, in case nzy- decision as to the
required period is reversed. Plaintiffs actual cultivation in October
1941 covered 11 feddans only. When I saw the land in the kharif of

1941 I found traces of old cultivation extending to an area whioh was
about two thirds of the area terassed. I believe his actual cultivation
extended to 20 feddans only. This plaintiff has two·other terasses
which he has been cultivating, ·but they were no: inoluded in this

claim and they will have to be decided in the future •

Revision.

M.l\:Y. \3~ .1944, W.O.B. Lindsp, B'9. I For t.he. JUf}.ie of ~ ••. ~ llig~.Court..

His honour J1.!dge r:iaclagan has summarily dismissed the plaint iff's
application for revision.

Application summarily dismissed.