Administrati.ve law •• l'Ublio offioial •••• Registrar-Gener81 - QPiniCll, ot.:"..

   Presum~~CIl as to validity of re¥stratian made ~der hi~ ~i~~~ian.

Bstoppel - Taoit aoknowledpJent of title - Government claim to laild;..

Inequitable where Gove~8nt '8 as~ent 'to another's ole:ipi m~j.8  reasonable assurance of validitl of title.

* Court I' Cumings, J.

Land Settlement and Registration - Va1iditl ot registration -
Settlement originallY under 1899 Ordinance - Eftect at sUbstantial
satistaction ot requirements ot 1925 Ordinance - Validitl and
ertect ot directions by Registrar General.

Appellants were suocessors to one HOweires, who prior to 1907 had
bought up the shares ot the heirs ot Toct to a plot ot land in Singa
District settled in the latter's tavour in 1902 by a Land CcmnissiOll
appointed under the Title ot Lands Ordinanoe ot 1899. The decision

ot the 1902 Commission was set out an a torm similar to those later

used under the. Land Settlement Ma. Registration .Ordinanoe 1925. Although
tllere was· no-evidence.as to who was.on the land.:eir-";~t~; used trom
1907 .until Howeires^t death (about 1922), in the tater.years ot his lite
various acts by Howeires and correspondence by the Governor and the

District Commissianer showed that the Government considered him as the

owner. Similarly, the Government treated the heirs as owners. although
they did little on the land.

• . The Settlement Ottioer deoided that the land belonged to the
Government and that the heirs had only the right to oollect grazing
dues and the right to~. ~ the gl'Ol1Ilds that the Registrar General
had mad.~O direction \1ild.er s.ctian 2(3) at the Land Settlement and
Registratian Ordinanoe 1925 to adopt the 1902 registration, and that
the 1902 decision was in:8lr¥ case. invalid sinoe the C<XIIIIlission had

made no proper enqui17 into the oo~atian.

en appeal the de~ision ot the Settlement Otticer was reversed •.
and it was iieids .. (1) There was such a direction trom the Registru-

General, though this was unknown to the Settlement Oftioer.

(11) As ~or the validity ot the dire~iQD. the o0urt has power

to deoide whether it was valid as made in aocordance with the ordinance,
._d it neoess&l7 the directian mq be severed so as to be good when:                                                                                                                         .                               .

applied to. some land and bad fJS to other l_d.

(lU,. The direction was valid on its taoe even though its wording

. ;was Dot strict17 that ot the ordinanoe, sinoe its olear m88lliDg was
that .required. by the ordinanoe. The directian applied ~o the l_d in
question, sinoe the land was, in the te:nna ot .-the direction, "settled
_d registered under the provisions ot the 1899 Ordinance." The

direati~ as to this land was not bad for not having been made in
aooordance with the provisicms of seoticm 2(3) of the Land Settlement
and Registraticm. Ordinance 1925, sinoe (1) a survey had been made, and
(2) the presumption in favour of' the Registrar-General's opinion tha~
the provisions as to settlement and registraticm in the 1925 Ordinanoe
had been substantially fUlfilled was not overoane by the evidence,
whereas the oourt has already found that those provisions had in faat
been fulfilled.

(iv) Even if there had been no direction, the oourt would find
in tavour of appellants, on the basis of (1) the 19~ "registration,"
and (2) the acts of the heirs in respect to the land, which though not
establishing a prescriptive title, constituted a good defenoe, sinoe
the Government had expressly assented to their claim in so many
oocasions that its claim against them now would be inequitable.

Land Settlement and-Registration Ordinanoe 1925, s.2(3).

Title of Lands Ordinanoe 1899, s.6.

APReal.

14arcb.(:;ti·.';~~.·l~s;T SPioui:· J.":', ,.j. On June .14, 19~ a Land Commission
appointed under the Title of Lands Ordinanoe 1899 settled ~pute
about a large area of land, which included the 500 feddans of this case,
bet\.,een the heirs of Hamid Toot and Ahmed el Alawi -in favour of the                                                                                                                                       .

heirs by deolaring that the land ,.,as the property of the heirs. The
evidenoe before the Commission brought by - the heirs was. that the land

had been cultivated since 1890 by Hamid Toot and after his death by

the guardian of his h~irs (two minors), and ushur had been paid on the
orops and the name· of the. guardian was regis.tered in the merkaz books

in that conneotion. No one but Ahmed el Alawi had interrupted the'
ownership of the heirs. ~ed el Alawi claimed as an heir of the guardian.

Ckl this evidence the Commission dec1ded that the land was. the property

of ~he heirs of Toot and after referring to the Kadi for shares set

them out. The decision was on a form not very unlike the s.ettlemen'l;.
form now used under the Land Settlement and Registration Ordinance 1925.

en that evidenoe it seems that the Commission was right in its
decision, under the rules of adjudication set out in section 6 of the

ordinanoe, as there 'was evidence, not disputed, of oontinuous possession
by claimants since 1890; 1 t is worth remark that this evidenoe is just
the sort of evidenoe by whioh numbers of persons have been registered

as owners of land in Settlements under the Land Settlement and Regist-
ration Ordinance 1925.

The same Commission had a month before this in the same w~ and
on a similar form had adjudged to be the property of the Government
the then forest of t-lad e1 Gaxooli whioh adjoined the land declared to
be that of Hamid Toot.

After the decision of the Commission for several years Mohammed

Ali e1 Howeires bought up the shares of the heirs of Toot - in all

oases .. by deeds executed before the Kad1 approved by the Governor and
p~ing fees. of 5 per 'oent to the .. Government as sales of ownership of
land. In 1907 another . Land Commission, this time withcut statutory
authority, reviewed the deoision of.the 19~ Commission and on resurvey
found that the heirs of Toot had nct been given all the land they should
have had under the earlier. decision and so this Commission gave them,

to make it up, 339 feddl'.ns of adjoining gt'vernmomt land, and at the

same time decided that the present owner was Howeires. Eaoh deoision
was signed b.y the Governor as appro~g.

From 1907 to somewhere towards the end of the life of Howeires
(died about 1922) there is no evidence as to what happened on the land
and how it Jias. used or not used. The heirs of Howeires were Y0lmg
then and do not know. But towards the end of Howeires' lite there is
the following evidence of user or olaimer: 1) Evidenoe that he
procured a map of the land to be made by a government surveyor on

which it 1s marked as property of Howeires and adjoining land is marked
property of the Government. The map 1s here. 2) Evidenoe that Howeires
got the Governor to order some persons settled on the land to get off

it because their cattle were dOing damage to the land, on his p~g

them oompensatioa. for their cattle pOlmds and houses. 3) Evidenoe

that Howeires objected when the Dam .Comp~ proposed to cut wood from

the land, but eventually agreed with the District Commissioner that

the wood might be out. When after his death the heirs objected to
outting they were met by the argument from the Legal Secretary, "Your
father agreed we migh:~ do so," and the evidence is that he agreed beoause
the land was thereb.y oleared for cultivation free.

Since the de.ath .ot Boweires the business has been m,an~ by

Cbda Ahmed el Howeire~ wllo:w~ guardian ot the"mb!,~ heirs.

The aets relied on by the h~irs sinoe the death ot Howe ires are' I .

l) The charging dues on nomads who grazed animals on the land (lUlUl
1932).

2). '!'he oaltintiem ot 12 teddans between 1924 and 1927.

3) In 1926 Ahmed applied tor permission to irrigate the land and

oalthate &8 land,at heirs; This was approved by all except the IrrigaUem

Deparialct ,- no one .ugge.ted~the--land.-was not that. :ot the heirs.and -

IrMgatiem em~ retused bf)cause they' wanted to see how--the-dam v •• going
to at.teot;.the lud. In 1932 the CDda renewed the ItopplioatiCll, and em

it the-Distriot COlllllllssioner-Wrot~ to the Governor, "It .1s the Qnda'.
1dea to allot the ground. which is his OND to the people." The Governozo
approved, but nothing was done tor lack ot capital.

4) (be heir, Babikr, was given leave ~ irrigate an area ot 30' teddaDs
ot the . land (bid not inoluded in the part taken on thi_!! se~tlemElllt) &8 .
hi. propm7.·

5) For a number ot 7ears halt ot the-.ro;yalt7 was-giVElll OIl wo'*'- out CD
the land (illegaly) to Ahmed~. This vas-done in other places to O11hers
ot 1_ .• not to Qndas &8 such.

'1'0 Jq mind there can be .ae q1lestiClt. whatever that trom 19(2 lUlUl

verr reoentl¥ the Distriot CCllllllis.iemers and, GovernOH were quite sure

that the-land did belong.in tull ownership .to the heirs. And the heirs:
have alv8t)'8 80 maintained. Bu.t they' have done little on the land -

DO doubt partly because the7 thought that with all this reoognitiem.

by the Government they need not do anything to preserve their title.

- Bow on this . Settlement they' are told by the Settlement otticer,
"!lot only is this land net yours --it is the land ot the Government,-
tht verr ltouthoriV t1;lat tor so long did not dispute and in terms agreed
that the)-, the heirs, ONDed the -land. The Settlellient otticer decided
that t.he land was the propert7 of the Government but that the heirs

did own certain rights thereon, which were a right to oolleot gruin"
dues and a right .to khums. In connection with this decisiem &8 to
klwID8 I mq. remark that .the on4' evidence bet ore me shows that the.
khums was granted not to the heirs but to the c.da. - What i. certain·
about the lchUIDS is that there was a great deal ot contusion in evelT-
OIle'. minds about it, including those ot the Governors, witness the
various province orders.

The grounds tor this deoision of the Settlement Offioer were first,
that he found that no direation purporting to adopt this 19~ "Registrati<Xl~

UDder the 1925 Land Settlement and Registration Ordinanoe had. been made

by the Registrar-General lJllder seotion 2 of the later ordinalioe, and
seoond, that he therefore "ventured to oomment" on the 19~ deoisian
and found it bad on the ground that the Commission had. "made no proper
eJiquir.r into the oooupation;" adding that "the case appears to .be· a

typioal one of the oonfusing the enjoYment of what have 'been oalled

sovereign rights with the enjoyment of the rights of full ownerships."

Thus he awarded to the heirs. on1,y the grazing and khums rights" ;in'-:_ .-:

particular nat admitting that ,they had. a:ey riglit- to oultiVate the land
or· to take. the .wood on it. :'Against that deoision the heirs,- have now
appealed, olaiming that they own the land, and should have beeJi so re-
gistered, and tp.erefore expropriated on that basis. -by being_ paid the
value of the land, not just -of the grazing and khums right a.

Th6 first thin, to remark on that deoision is that. the Registrar-
General of land has in faat made a direati<Xl, .. 'whioh appears at first
sight to apply to this land and adopt" the "registration" ot the . Commission
a~ a.register of title Under the.l925 Ordinanoe. This direation was
unlalown to the Settlement otf(c;"er.

I p~ooeed--to consider the argument addressed to.me by- the learned
Attorney General that (a) this 'direation is bad altogether, and, if nat .                                                                                                               .                          .

that, (b) it does not oover this land, and if. it does it is bad •. In

both oases "bad" beoause it !ioes not oomply 'i'lith the stat'utor;y requirements
und.1r which.it was made, that is with the Land Settlement and Registration
Ordinanoe 1925, s.2(3).

I agree that it i8 the power and the duty of the oourt to. pronounce
on the validity of suoh a direatic:n made by the Registrar General, and
to sa;y that is invalid if not made':in aoooManoe with the provisions.

of the ordinance. As oo~s. in l!hgland deal with 8ubordinate legislati<Xl                                                                                                                                .

(Craies on.Statute law 259 (3l'd :&1 •• .).I"hold too, following the 1!hglish

authorities (id~ at 216) that I have 'p,",er to sever and: should do so it

~ find the direati<Xl good: ~. -to some Iland. and bad as to ather land.                                              

. en. the evidence before me, whi'oh is of. the vagueness' ot sQqle ot                                        

the deoisi<Xls of the S~ Prprinoe Commissioner under the 1899 :Ordinanoe,

as shown by- the reoorda oopied in the black books, I lUll quite ~ab1e to .

.hold that tlui dire'oUan was not quite a good one as to ~ ot tlM laDda
.to which i~. purports to refer, which were dealt with b1' other COIIIIIisaiCIUI
and under other ordinan.oea. There III8iY haft' been other :tands as to which
th. proviaiClla of Registraticm Qrdinanoe 1925 were aotual~ carried out.

jnd I do not think that the fact that in the direotion the Reginrar-

General uSas: the"words "shall be deemed to haft been aettled and registered
in acoordanoe with the 1925 OrdiJianoe," instead ot the striotq oorreot
"t~ Reginer alreaq made shall be the Regishr of title thereof," maleea

. the dil'eotiCll a nullit1'. I therefore hold that t~e d1reot'iCll is not
.. altogether a null1t7.

.. That .being so does it ~eter .to this ,land,? 1& this . land ";sltUeci

and .registered Under the provisions Of. the .1899 Ordinanoe" withiJa the
rAeaning of those' words as used. in the direotion? I think so. 1 think

it W8.a "registered"unde1'" the 19(2 Ordinanoe b1' the completion of the

torm before. reterred to (just -as so muoh land is, I think, registered
under the 1925 Ordinanoe although the deoisiClls as to it are still
inacribed in the settlement tOl'lDB, no books having 1'et been mad ). 1
tlWlk that it .was "settled" in that, though that word had net 1'et come -
into~the laws b)" 19(2, 1'et the Commission was one for the "settlement

ot disputes as to lands" and it did so settle this one. Furthermore.
there mUst have been as much publ1cit7 about its ooming and .lttings

as nowadqa attends those .of the Settlement Offioer under. the 1925

. Ordinanoe, so that all who .disputed had a ohanoe to do so. What was
done was the then equivalent of Settlement under the 1925 Ordinanoe,                                                                                                                                                                                                                                                                                                                    

~o that all who disputed bad a ohance to do so"

 

the Registr8l'-General in making this direat.icm did not' mean to exolude

as "unsettled" . land properq and on proper surve1' and with such publioit1'
adjudicated upon b1' .a CommissiOn under the 1899 Ordinanoe.

F1nalq, is such a 41r,otion as to this land bad as not bavinS' been .
made in aooordanQe with the provisions ot the: enablinS' ordinanoe, the
Land Settlemc1; .. and RegistratiCll Ordinance 1925,. 8.2(3)1. First, •.
SvV4t1' of this 1ud, within ,the me8Zl.ing of the WON "s~ in the.
subseetian had been made when the 1925 Ordinanoe came· into efteot. The
next questicm is whether in the opinion ot the Regi.tl'azo-Oeneral tlM
provi8ions as to Settlement aDd registration of tlM 1925 Ord1uJloe had.
been aotualq 01' substantial~ carried out in respeot ot the ·land.

Note that it is the opinion of the Registrar General and not the opinicm
of this oourt. And the oourt must not be astute to find such direoticms
wrong; they must be presumed right until shown to be wrong. In ~
opinicm it bas not been shown to me that the Registrar - General was

wrong in making suoh a direotion as to this land for it seems to me

that there was material on whioh he might form the opinion that the
provisions of the 1925 Ordinanoe had been substantially oarried out in
this case. I have before held that in my opinicm this land was "pur-
ported to be registered under the 1899 Ordinanoe." It. follows that.

I am· unable to . hold that the direotion of the Registrar - General was
bad in adopting this registration under the 1925 Ordinanoe. I

That being so there is an end of this oese , as it is not argued
that. the Settlement Offioer would then have been able to alter this
decision; and there must be a declaration that the heirs- oW'..1 the
land in question. But so much argument \~as addressed to me an the
other question that, although it does not really now arise, I will
state as shortly as I can my oonolUsions on it.

In my opinion the Land Settlement and.Registration Ordina::.oe 1925
does not restrict the Settlement Offioer to acoepting noth~g shori

of a good presoriptive title to ownership of land for registrat~on.

If this were the intention of the ordinanoe, I would expect it to be
80 laid· down expZ!essly, as it was in the 1899 Ordinance. Any number
of settlements have. oerta.inly been made and not on this interpreta~'ion
of the ordinanoe; indeed, I cannot find any inciicaticu that'1 ar~
Settlement Offioer has ever so read the ordinanoe as restricting him

in this manner •. I do not understand the argument by oomparing SettlemtvJlts
with civil suits, for in the latter it is by no means obligator,y to
establish ownership by a prescriptive title only.

Then, assuming.for the moment no direction, I thir.k that the
Settlement Offioer should have registered the heirs as owners of the

land on the "registration" of 1902 coupked with the evidenoe that tb
heirs had ever since maintained their claim to the land, though by'

aots insuffioient alone to establish a good prescriptive title to
ownership, suoh olaim having been expressly assented to ey the Government

,several times, in such a w~ that.the heirs could reasonably consider
tbli.t they were safe from claims against them to the land b"3' the.
a~ent a.n,d all otMr persons. If this latter does not work in law '

an estoppel against the Govemment it oertainly makes it inequita~le

for the Government now to claim against the heirs.

So even if the direction were bad I should still find in favour

of the heirs that they ,,,ere 9wners of the land. On that and on the
evidenoe before the oourt I think that as a consequential result the
~Ums rights go to the Qnda: in person. There will be such a deolaratiOn.

Failing agreement the ('w.aership. of the 500 feddans will now have
to be valued "and the }leirs paid the differences between that Stml and
what they have a.lready had. The evidenoe here is that the whole area
of which this 500 feddans is only a small part was bought by their
father "for a song", and that in the years since next to nothing has
been spe.'"1t on it and only a tiny irregular income obtained from it.
Clearly the hdrs will find it hard to prove that this land had a
SUbstantial value in the undeveloped state. in '''hioh it was acquired by
the Government. The previous board found that the khums. rights were
of. only nominal value.