Prescription-Possession-Cultivation of marginal land-Sufficient occupation-
"Squatter"

Where the claimant to prescriptive title shows that, whether he culti-
vated the land every year or not, he has exercised all those acts of owner-
ship of which the nature of the land permits, possession is sufficiently estab-
lished for the purposes of section 3 of the Prescription and Limitation Or-
dinance 1928. What amounts to a sufficient occupation must depend upon
the nature of the soil and the uses to which it is to be applied.

* Court: Creed C.J., Bennett A.G. and Flaxman J.

Lord Advocate v. Young (1887) 12 App.Cas. 544 quoted. Cook v. Rider
(Mass.) 16 Pick. 186 (U.S.A.) quoted.

Revision

July 15, 1937. Creed C.J.: On January 13, 1914, plot 191, map
22, El Karateeb Registration Section, Sennar District, was registered
by order of the settlement officer as follows:

El Bagir Hassan Suliman

Rabha Bint Mohammed Abu Gossa

117,422 Feddans.
16,774 Feddans.

134,196 Feddans.

The two registered owners are heirs of the deceased, Hassan Suliman
Ahmed, and the registration appears to be in undivided shares. Ten
feddans of this plot are the subject of the present litigation.

The plaintiff alleged in the province court that these ten feddans
had been in his possession for more than thirty years, that an agree-
ment was made at the time of settlement that this land should be
included in the area registered in the name of the defendants, in order
to save trouble and expense, that from the time of the settlement the
registered owners have never questioned his rights of ownership until
recently, when he at once instituted the present action for rectification
of the register.

The defendants relied on the registration, denied that there had
been any agreement at the time of settlement, and denied that the
plaintiff had been in possession of the land for the period alleged by
him. The question of the alleged agreement at the time of settlement
was not pressed at the trial, and the learned province judge framed
the following issue: Has the plaintiff been in uninterrupted and un-
disputed possession of the land claimed for a sufficient period to have
enabled him to acquire a title by prescription?

It is abundantly clear, not only from the evidence before the
Province Court, but also from the admissions of the defendants in the
Court of Appeal, that, in so far as the land has been cultivated during
a period far longer than the statutory ten years, it has been cultivated
by the plaintiff exclusively, and that the plaintiff made no acknowledg-
ment of the defendants' ownership.

The first part of the judgement of the learned province judge reads
as follows:

"The plaintiff claims a declaration that he is entitled to an
area of 10 feddans in plot 191, Karateeb Registration Section,
on ground of long and undisputed possession. He also alleges
an agreement made at settlement to include the land in that of
the registered owner, El Gabir Hassan. On the latter point there
is no evidence, but in support of the former a number of witnesses,
mostly persons similarly placed in relation to the registered own-
ers as the plaintiff, have been called. I have viewed the land
in dispute, which at first sight appears to be uncultivated and
covered with grass and scrub. But a closer inspection reveals a
few scattered patches of clean land, one of which is the 10 feddans
the ownership of which is now claimed by the plaintiff. I have
come to the conclusion that the plaintiff is merely a squatter . He
may be a squatter of long standing, but no length of mere squatting
possession can I think prevail against the title of the registered
owners. It is not possible now to reopen the question of how that
title was obtained, but in the absence of proof that the plaintiff
has been in possession of the land in the exercise of an openly
avowed claim of right in which the defendants have acquiesced,
when they had the right to sue, the registered title must prevail."

In the view of this court, the learned judge has misdirected him-

self as to the law. The law is plain, and is set out in sections 3 and

, 4 of the Prescription and Limitation Ordinance 1928. Section 3 reads
as follows: "Ownership of land may be acquired by the peaceable
public and uninterrupted possession thereof by a person not being a
usufructuary for a period of ten years," subject to a certain provision
which has no relevance to the present case. Section 4 sets out the

_'. principle of possession. Subsections (3), (7) and (8) of section 4
, have no relevance to the present case.

It is clear that having regard to .the system of land tenure in the
Blue Nile Province, the plaintiff is not a usufructuary. It is equally
clear that during the statutory period his possession has been peace-
able. His possession could not well have been more public than it
was. There has been no interruption of the plaintiff's possession during
the statutory period within the meaning of the word interruption as
defined in section 4 of the Ordinance.

The last part of the judgement of the learned province judge calls
for special comment. It reads as follows:

"I distinguish this case from the usual prescription case