Principles

·  PRESCRIPTION — Permissive possession — Family relationship — Prescription and Limitation Ordinance 1928, s. 4(3) — Presumption rebutted where heirs of registered owner live In close proximity and do not dispute possession.

· PRESCRIPTION — Continuous possession — Succession to possession by heirs of original occupant.

For 24 years plaintiffs were in possession of land registered to their grandfather. having succeeded their father, who was in possession for 26 years. Plaintiffs brought this action for rectification of the register on grounds of prescription. Defendants. the remaining heirs of the registered owner, alleged that the occupation was permissive under Prescription and Limatation Ordinance 1928, s. 4 (3) by reason of family relationship. Defendant had been living in the same village throughout the period of possession and had never disputed plaintiffs’ right.
Held: (i) Defendants’ failure to exercise their power to terminate plaintiffs’ occupation or to sue in respect of it, where they had full knowledge of the exclusive possession. negatives the presumption of permissive possession.
(ii) Plaintiffs’ succession of their father was a continuation of his possession under the same claim of right.

For 24 years plaintiffs were in possession of land registered to their grandfather. having succeeded their father, who was in possession for 26 years. Plaintiffs brought this action for rectification of the register on grounds of prescription. Defendants. the remaining heirs of the registered owner, alleged that the occupation was permissive under Prescription and Limatation Ordinance 1928, s. 4 (3) by reason of family relationship. Defendant had been living in the same village throughout the period of possession and had never disputed plaintiffs’ right.
Held: (i) Defendants’ failure to exercise their power to terminate plaintiffs’ occupation or to sue in respect of it, where they had full knowledge of the exclusive possession. negatives the presumption of permissive possession.
(ii) Plaintiffs’ succession of their father was a continuation of his possession under the same claim of right.

Judgment

Advocates: Ahmed Guma’a ……………………..for applicants

Henry Riad…………………………………….. for respondents

M.A. Abu Rannat, C.J. March 19, 1956:— The facts of this case are short and simple.

• Court: M. A. Abu Rannat, C.J. and R.C. Soni, J.

Share No. 3 of Sagia No. 14, El Figeiga, comprising 10 uds, is registered in the, names of the Heirs Ahmed Fadlalla by decision of the Land Settlement in 1906.

The applicants are the Heirs of Mohamed Ahmed Fadlalla. The present registered owner is their grandfather. It is admitted that the applicants have been in possession of these 10 uds since 1906. The respondents are part of the Heirs of Ahmed Fadlalla. They are in fact the sons and daughter of Zeinab Ahmed Fadlalla. Zeinab and Mohamed are brothers.

The applicants applied for rectification of the register in respect of these 10 uds. They based their claim on a sale by a certain Ali Fadlalla to their father Mohamed Ahmed Fadlalla, and on the acquisition of a pre scriptive title, through long and continuous possession.

The Court found that no sale to Mohamed Ahmed Fadlalla was proved, and decided that from the relationship between the parties, the applicants were in possession of these 10 uds on behalf of the other heirs of Ahmed Fad lalla, under Prescription and Limitation Ordinance 1928, s. 4(3).

It is admitted that the applicants have been in possession of these 10 uds for 47 years, before this action was brought. The possession from 1906 until 1932 was by Mohamed Ahmed Fadlalla. In 1932 Mohamed Ahmed Fadlalla died and his sons followed him in possession. This in law amounts to continuous and uninterrupted possession by successive owners. This right, which is claimed on the ground of its continuous and uninterrupted exercise for a length of time, need not have been exer cised by the same person throughout its whole length; it is sufficient that it has been exercised by the successive persons who are claiming the posses sion as of right.

The learned Judge found that as a deed of sale to the applicants or their predecessors in title was not proved, the possession by the applicants vas permissive.

With respect to the learned Judge, this is an erroneous view of the law. This leads us to the fiction of the lost modern grant. After actual posses sion of land has been shown for a reasonable length of time, the Court has tç presume that an actual grant was made after the time when the pos session began, but that the deed of sale has been lost. I have to refer in this respect to the judgment of Cockburn, C.J., in Bryant v. Foot (1867) 2 Q.B. 161, 181. He said:

“Juries were first told that from user, during living memory, or even during twenty years, thèy might persume a lost grant or deed, (and here the courts did act by an to the Limitation Act, 21 James  1 next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor any one else, had the shadow of a belief that any such instrument had ever really existed.”

In this case the respondent were present all this long time in the same village where the land is situated they failed either to retake physical possession or raise a civil suit in the courts to claim their rights this proves that the  respondents hav e knowledge of the acts by the applicants and that they have a power to stop the acts or to sue in respect of them, and that  there was an abstinence on their part from the exercise of such power

These facts show that the possession by the applicants was of right and I cannot imagine a stronger case of adverse possession than in this case.

Therefore this application must be allowed and a decree setting aside the decree of the Province Judge be issued, and a declaration that the applicants are entitled to the 10 uds should b made.

R. C Soni, J., March 19, 1956:— 1 concur