DAF ALLA IBRAHIM EL SAEED AND OTHERS, A pplicants-Plairuiffs v. MOHAMMED BELLA OMBABI AND THE MEDAt~ElN WAKF, Respondents-Defendants
Prescription-Storage of grain all land-Use of land for single purpose to which
land is suited-Full ownership possible
Prior to the land settlement applicants and their forebears had been
using a parcel of land in the Medanein Wake area of Wad Medani as a
1< Court: Creed, C.J. and Flaxman J.
site for grain storage, a use for which the land was particularly well suited.
TIle settlement officer demarcated the plot, but failed to register it to any-
one. Applicants continued to lise the land for storage for another 19 years,
until the first respondent applied to the Wakf for a lease of the plot. The
registrar then registered the land to the Wakf, deciding that the absence of
registration had been due to clerical error. Applicants brought this action
for rectification of the register on grounds of prescription. The district
judge held that they had acquired ownership and ordered rectification ac-
cordingly. On revision to the High Court, the decision was reversed and
the court held that a mere right of user had been acquired for the purpose
of storing grain. Applicants then applied for revision to the Court of Ap peal.
Held: Use of land solely for a purpose to which it was peculiarly
suited would Dot of itself preclude the prescriptive acquisition of rights of
full ownership, as opposed to a mere right of user.
Revision
June 25, 1939. Creed, C.J.: The main facts of this case appear
to be as follows: There is a certain parcel of land in Wad Medani
Town which is now numbered as plot 66, block 13, Medanein Quarter,
and which has for several decades been used by the present applicants
or their forebears as a site for storing grain in pits. The learned judge
of the High Court states: "It is only necessary to visit the plot in order
to see that the site is an ideal spot for use for the burial and storage of
grain. Its main feature is that it is on a slope so that rain rapidly
falls away and does not lie and sink into the ground." In 1919 the
Medanein Quarter of Wad Medani was settled and registered, but this
particular plot, although demarcated, was not allotted a number and
was not registered in any particular owner's name. There appears, as
the learned judge states, to be little doubt that the applicants or their
predecessors raised the question of these matmouras to the settlement
officer at the time of the settlement and that they were informed that
the matter would be dealt with after the residential plots had been com-
pletely settled. The applicants were undisturbed in their possession
and the matter appears to have been dropped and never raised again
until .1938. In November 1938 the first respondent applied (0 the
Medanein Wakf for a lease of the plot, which adjoins his property.
After the usual formalities and allotment of a number of lease of the
plot was registered in his favour, the registrar considering the plot to
be property of the Wakf. The site lies within the boundaries of the
Medanein Wakf area of Wad Medani and the absence of registration
seemed to him to be merely a clerical omission on the part of the
settlement officer. The present applicants considered their rights had
been infringed and instituted an action claiming ownership of the plot
on the ground of long possession.
The district judge held that the applicants had acquired owner-
ship and ordered that the registration should be rectified accordingly.
The learned judge of the High Court on revision held that the appli-
cants had acquired not full ownership, but a right of user for the pur-
pose of matmouras, and altered the decree of the district judge by sub-
stituting a declaration that "the said plot is subject to a right of user
by certain persons for the purpose of matmouras for the storage of
grain." He also ordered the expunging of the lease to the first re- .
spondent from the register.
It appears to this court that the applicants are entitled to the
registration of this plot in their names. Owing to an oversight the
question of its ownership was never decided at the settlement. The
applicants or their predecessors in title have been in effective occupa-
tion of this land for many decades and have put the land to a purpose
for which it is by natural features peculiarly suited. Their occupation
has been peaceable, public and uninterrupted, and there appears to
this court to be no valid reason for holding that they have a mere
right of usufruct over land, the ownership being vested in the Medanein
Wakf.
There will be a decree setting aside the decree of the learned
judge of the High Court and there will be substituted a decree ordering
the registration of the ownership of the plot in the names of the ap-
plicants and the expunging of the lease of the first respondent from
the register.
Flaxman, J.: I concur.
Application allowed