Case No.:

PC-REV-48 & 49-1957 Ed Damer

Court:

Province Court

Issue No.:

1964

Principles

·  Prescription—Period not interrupted by intervening resettlement—Period commences on entry of claimant Land Settlement and Registration—Prescription—Settlement in progress during prescription period—Prescriptive claim may be raised once register becomes final

Where land, in respect of which a claim to have acquired a prescriptive title is made, was subject to a settlement or resettlement during the period in which prescription was running, the settlement or resettlement does not operate as an interruption of the prescription, and is not necessarily a bar to a prescriptive claim being raised at the end of the prescription period, if the settlement or resettlement has been made final on the register.

Judgment

(PROVINCE COURT(

AWAD EL KARIM EL SHAFIE v. MOHAMED AHMED TALHA

AND OTHERS

PC-REV-48 & 49-1957 )Ed Damer

Osman El Tayeb P.1. September 25, 1957 :—Plaintiffs and respondents are the registered owners of 616/24 uds known as part of share No. 1 in Sagia No. 10 Keli. They applied in the court below for an order of ejectment of defendant on the ground that he entered into possession of the said plot as trespasser. Defendant counterclaimed for a declaration that he has acquired a prescriptive title and prayed for an order of rectification of the register. The said plot was reregistered by the Settlement and Re-Settlement of 1951.

The learned District Judge from the start had his mind fixed on the Settlement of 1951, and said that no prescriptive title can be acquired for a period before the time of the Re-Settlement. He means to say that in order to prove prescription the prescriptive period must be counted after the Re-Settlement. This wrong conception of law leads him to disregard the main ground on which counterclaimant is relying. that of prescription, arid framed one issue that was not pleaded by the claimant and on which he never relied. This issue was rectification of the register on the ground of mistake or fraud.

For prescription time starts to run from the date of accrual of a right of action. The accrual of the right of action for the plaintiff to eject defendant starts from the time when defendant enters into adverse possession. It seems that an intervening resettlement has no effect on continuation of the possession of the claimant. In the second place the Land Settlement and Registration Ordinance 1925, S. 85 is not confined to rectification of the register on the ground of mistake and fraud only, the ground of prescription is specifically mentioned in paragraph (c). This means that at any time when the register becomes final within the meaning of section 18 of the Ordinance, a claim based on prescription can be raised. In the third place, in the case of Mohamed Ali Shar Albil v. Mohy El Din DafalIa, PC-REV-80 (Ed Damer), I considered a similar application to be one for leave to appeal from the decision of the Settlement of 1951, and I recommended that the application be dismissed summarily. The Honourable Mr. Justice Nur did not agree and stated: “I do not think, and the Honourable Chief Justice agrees with me, that the decision of the Settlement Officer of 1951 is a bar to applicants’ claim by prescription.” The main issue in this case should be one of prescription.

On these grounds I set aside the decree of District Judge, Shendi, dated March 24, 1957, and sent back the case for retrial as indicated.