Case No.:

AC-REV-395-1960

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription—Possession on behalf of another—Prescription and Limitation Ordinance, s. (3)—Son cannot hold adversely land registered in mother’s name Land Law—Prescription—Adverse possession—Possession on behalf of another—Son cannot hold adversely land registered in mother’s name First

plaintiff, Khallafalla, estranged husband of defendant. Fatma, possessed lands from i 1945 to 1954 given by him as a sudag to Fatma. From 1954 to 1959 second defendant, Ahmed, and second plaintiff, Mohamed Salih, sons of Khallafalla and Fatma, cultivated the land. In r Fauna transferred the land to Ahmed. Khallafalla, brought suit claiming adverse possession on the theory that his sons were cultivating on his behalf from 1954 and that therefore he had been in adverse possession for more than 50 years. The Province Court gave judgment for plaintiff on the theory that the estrangement between Khallafalla and Fauna made it possible for Khallafalla to hold adversely to Fatma in spite of Prescription and Limitation Ordinance 1928, S. 4 (3), and that the two sons possessed and cultivated on behalf of their father, thus fill the statutory period in Prescription and Limitation Ordinance 1928. 5. 3.
Held: Prescription and Limitation Ordinance 928. s. (3), may allow an estranged husband to prescribe against his wife, but will not allow their sons to hold adversely to their motherland registered in her name.

Judgment

(COURT OF APPEAL) *

FATMA IBRAHIM AND ANOTHER v. MOHAMED SALIH KHALLAFALLA AND OTHERS

AC-REV-395-1960

Fatih Awouda, Acting P.J., PC-REV- (Ed Darner): —This is an application for revision against the decree of District Judge, Shendi, in CS- in which he ordered rectification of the register in respect of 10 uds in share No. 6, sagia No. 2, Urn Dia Island, and registration thereof in the name of respondent (plaintiff) by acquisitive prescription.

As it appears in the certificate of search, the said land came to be registered in the name of Fatma bint Ibrahim, first applicant and mother of second applicant, on March 21, 1927, by way of inheritance and agreement from a certain Au El Hag Ahmed, father of respondent and predecessor in title of the said land.

First applicant and respondent were wife and husband; second applicant is respondent’s and first applicant’s son.

On October 20, 1957, first applicant transferred the land to her son by way of gift. The relevant certificate of search bears the following note:

“The share of Fatma bint lbrahim amounting to 10 uds Tulati was transferred to her by way of’ sudag from her husband Khallafalla AU in the year 1338 Higria” [i.e, about 41 years ago].

Respondent based his claim in the subordinate court on the ground of fraud or mistake as provided in the Land Settlement and Registration Ordinance, s. 8 (a), and in the alternative ownership by acquisitive prescription.

The learned District Judge dismissed the first ground of claim at the stage of hearing without framing an issue therefore, as respondent failed to establish it.

The ground of revision as I could gather it from applicant’s petition and her statement in the suit proceedings is that plaintiff was never in possession and even if he was in possession his possession must be deemed to have been that of herself, as she was his wife (Prescription and Limitation Ordinance, s. 4). As regards the first contention, the learned District Judge has patiently heard a considerable number of witnesses for both sides and came to the conclusion that plaintiff was in possession of the land since his father’s death in 1917 and that his personal possession continued up to 1945 when he left for Khartoum and left the land to be cultivated by his two sons, namely, second applicant and his half-brother. I have carefully gone through the evidence of the witnesses. I think the decision of the District Judge was in accordance with the weight of evidence in this issue. The two sons remained in possession until his return in 1954 when he resumed his possession in person. The District Judge discussed the point whether possession of the sons should be considered as an interruption within the meaning of Prescription and Limitation Ordinance 1928, s. 4 (i), or whether it should be taken as continuation of possession for and on behalf of their father. He decided that the latter was the correct view. Interruption of possession is nullified by the fact that on the return of plaintiff in 1954 he took over possession of the land from his sons without being objected to by the contesting parties or any other person.

There remains to consider whether by the relationship of the parties (husband and wife) possession of the husband should be deemed to be that of his wife, the registered owner within Prescription and Limitation Ordinance, s. 4 (3):

“The presumption of holding on behalf of another owing to the relationship, allowed by Prescription and Limitation Ordinance, s. 4 (i). is not conclusive, the court is not bound to accept that presumption by relationship alone; the surrounding circumstances of the possession must be looked into in order to decide for or against the presumption.” The above statement is the ratio decided in Heirs of Safia Ahmed and

others v. Heirs of Mohamed 1 Omer, PC-REV- (Ed Darner), decided by Osman El Tayeb J.

In the case before hand, the land in dispute originally belonged to respondent. It was registered in the name of first applicant in the settlement of 1926 in the absence of respondent.

Applicant did not bother himself about the registration and continued to possess the land. Respondent and applicant, though husband and wife, never lived together in the matrimonial home for a very long time. In these circumstances it can never be presumed that this possession was on behalf of his wife.

I affirm the decree of the District Judge. I order that application for revision be summarily dismissed.

B. Awadalla J. March 5, AC-REV- is an application against the summary dismissal by His Honour the Province Judge, Northern Province, of an application to him against the judgment and decree of District Judge. Shendi, in CS-I24

The facts of the case are as follows:

Respondents are some of the heirs of a certain Khallafalla Ali who was married to first applicant Fatma bint Ibrahim long before 1927. The bride price or sudag consisted of the lands in disputes, which were registered in the name of Fatma by the settlement of 1927.

The land consists of to uds in each of sagia 2 and seluka 5, Urn Dia Island (Bawalid), Shendi District. After 1927 Khallafalla Ali continued to cultivate the land either alone or with his two sons, Ahmed (second applicant) and Mohamed Salih (one of respondents). It appears that for a considerably long time the marriage was not a happy one, and the parties were living in separation though there was no divorce.

It was proved that in i94 Khallafalla Au gave up cultivation and left Shendi altogether. The land continued to be looked after by his two sons and Mohamed Salih until 1954 when Khallafalla Ali returned and resumed possession. In 1957 there was disagreement between Fatma and Mohamed Salih consequent on which Fatma transferred the land to Ahmed by way ‘)f gift. Khallafalla Ali, no doubt instigated by the disappointed son, Mohamed Salih, instituted these proceedings against both Fatma and her donee. He tried to contend that the original registration in Fatma’s name in 1927 was procured by fraud, but he could not substantiate his allegation and the court had to decide his claim on prescription.

The court addressed to itself the question whether Prescription and Limitation Ordinance, s. 4 (3), prevented prescription in this case, i.e., whether the possession of Khallafalla Au was possession on behalf of Fatma, but it answered the question in the negative because of the disruption in the marriage.

The court then proceeded to consider whether the loss by Khallafalla Au of possession between 1945 and 1954 was fatal to his claim and it again answered the question in the negative because, in its opinion, the possession of the two sons was exercised on behalf of their father. It accordingly gave judgment in favour of Khallafalla Au and ordered con sequential rectification of the register.

Fatma and Ahmed Khallafalla applied to His Honour the Province Judge but their application was summarily dismissed by His Honour the Province Judge, who upheld the opinion of the learned District Judge regarding his interpretation of the Prescription and Limitation Ordinance, s. 4 (s). Hence came this application.

Before the application was dealt with by this court, Khalfafalla Ali died and proceedings were continued against his heirs.

In my view this application should be allowed. It is quite obvious that a claim on prescription cannot succeed in this case unless the possession of the two sons can be ascribed to their father. Both the learned District Judge and His Honour the Province Judge say it can. This means that for no reason the parental relation of the father was preferred to that of the mother, despite the fact that the mother was admittedly the registered owner of the land. I think this is quite unreasonable. I do not think that the provisions of the Prescription and Limitation Ordinance, s. 4 (s), can be interpreted so as to permit a son to acquire, in an adverse manner, the possession of land registered in the name of a parent, For this reason the decision of His Honour the Province Judge confirming that of the learned District Judge is hereby reversed.

* Court: M. A. Hassib J. B. Awadalla J.