Dama~es-Prescriptjon-Damaees as an alternative remedy to possession-
Method of assessment-Relevant date of valuation

Land Law-Forfeiture-Whether anI{ person other than the Government may
int;n⁷-e the aid of a [orieiture clause which forms part of the original terms
of allotment by the government to original tenant

Prescription-Period of-Five years rule required by Egyptian law applied-
Whether possessor can prescribe against minors

1. Only the Government or someone claiming through the Govern-
ment may claim the benefit of a clause in the original allotment of land
providing for forfeiture if the land is not built upon within a designated
period.

2. A person wishing to invoke the five years prescription period must
have a peaceable, public and continuous possession by an unambiguous
and just title of ownership for five years. Unambiguous title means that
he must have been in possession as an owner and not in his capacity as a
mortgagee or lessee. Just title means that there was no want of bona fides
on his part.

3. The claims for possession of land by certain minor co-heirs suc-
ceeded against a defence of prescription while the claims of their adult

·Court: Wasey Sterry, Acting

co-heJrs failed. In this case the court awarded damages in lieu of
possessien with respect to the fractional shares lo which the children were
entitled.

IJppeal

Advocate: Mr. Drower .. -, for respondents.

February ,10, 1908. Wasey Sterry, Acting J.e.: The facts,,m this
case are practically undisputed. On March 1.8, 1901, the Khartoum Land
Commission admitted the right of the heirs of Mahgub Abdel Latif El
Nadaf, viz., Mohammed, his son, Ahmed, son of .his son Hussein, Fatma
and Batul, children: of his son Hussein, his daughters, Zeinab and Nefisa
and Khadiga, and Om EI Hussein and his wife Khadiga to an allotment
of 1~,OOO square feet in Khartoum. Before any actual land was 1Il-
lotted to them, Mohammed Mahgub Abdel Latif and Khadiga Bint
Gami, the wife of the deceased, who together were only entitled to 11/32
of the property, agreed to sell the whole of the heirs' right to Yuzbashi
Abdel Galil Eff, Ismat, the predecessor in the title of the respondent
Abdel Halim Mobi El Din. It is' said that as a matter of fact what
happened was this: Abdel Gelil Eff. Ismat had then bought or con-
tracted to buy a plot of land in the 3rd class of 7542 square feet
the situation of which he' did not like and he asked the Mudir to

,change it. The Mudir replied that he' could not do so, but that if
Abdel Gelil Etl. wanted another situation he had better arrange to
buy from some 0I\e who had not yet had his allotment fixed and that
the Mudir would 'then allot his as an officer a piece in as good a
situation as possible. Therefore the agreement with these two heirs
was made and the transaction was carried through on the Register
as an allotment to heirs of Mahgub Abdel Latif and a conveyance on
sale by the heirs to Abdel Galil Eff. Ismat.

The purchase price was nominally' one millieme a square foot,
but I am satisfied by Samaha Eft's evidence and the admission of
Mohammed Mahgub Abdel Latif that as a matter of fact the pur-
chase price was partly satisfied with a transfer to Mohammed Mahgub
and his mother of the 7542 square feet which Abdel Gelil had
bought or contracted to buy elsewhere. On October 9, 1902, Abdel

_ Gelil Eft. Ismat sold the property to respondent Abdel Halim Mohi
EI Din.

The facts about the special allotment and part payment in land
were not brought out by the respondent in the court below

. CJDly brought out in this court by special lcav" • both sid~ bad

        beenheard.                                                                          

The 'argumaat for the respondent has, therefo , taken '~er

        a different tum. Mr. Drower founds the following              ent on then..

        "At least, •• he says, ''my client has ,got 11/32 or              50 square feet

        out of the whole, he has handed over to the he'               542 square feet

more in exchange, the utmost they can be entitl Ito is the difference '

        between these amounts and 14,400 which is            8 square feet. For

this I admit he must pay' damages."

, So far as the 4950 square feet tl)6re is no question, but' as
regards the 7542 square feet I do not"fumt the respondent can get
.-id of his liability b)r this process of accounting. So far as appears
from the Register, and I do not think I can go behind it, the 14,400
feet were in fact alloted to the heirs of Mahgub Abdel Latif and to
. deal effectually with it the transfer must have been effected by an
the heirs or someone duly authorized to act on their behalf. The
fact that the purchase money was partly paid in land does not seem
to me really to affect the question, certainly not if it was not paid
to the right persons and as. a matter of fact there is no evidence at
all on the Register to show that ,any transaction of the kind at all'

, took place for Abdel Gelil Eff was never registered as owner of the
7542 square feet.

Mr. Drower's argument, however, does not stop there, he argues
With considerable force that the claimants are not entitled to recover
by reason of the forfeiture clauses attaching to all allotments of land
in Khartoum if not built upon.' The way he puts it is this: "if on
the 31st of December, 1902, 'the building conditions as to this plot
of land were unfulfilled, the land would have been forfeited to the
Government; if' it had then been sold, it would have fetched ,5
nlmiemes a square foot; the plaintiffs have never done anything to
the land nor cared anything about it till now and it would, if the
purchaser had not intervened and saved it by building on it, have
long been forfeited and sold, and the claimants are therefore only

. entitled to their share of what the price would have been if sold
about January 1903." The argument is ingenious and has convinced
4te Civil judge, but I do not think it ought to prevail.

1 Though the court does not cite it, the source for the forfeiture rule Is
presUmably The Khartoum, Berber and Dongola Town Lands Ordinance 1899.
aec:tioDS 10 and 15, and prodamatiODS made under it.

The answer to this argument is in my opinion that actually

'. there has been no forfeiture and further if there had been it does
not ,as a matter of fact follow that sale would have followed im-
mediately; it might have been postponed to a time when the price
of land had risen to a very high figure. This did happen in many
other Cases. In effect Mr. Drower is claiming for his clients the
benefit of a forfeiture in equity; I do not think there can be such a
thing, and if there could, I do not think anyone but the Govern-
ment or someone claiming through the Government could claim the

. benefit of it.

There remains the question of prescription. So far as regards
those of. the claimants who were minors, I do not think prescription
can, run at all. As regards those of them who were of age; is the
respondent entitled to· invoke five years prescription or' must' he show
fifteen years?

Now according to the Egyptian law, which we follow, the.
respondent, if he wishes to invoke five years prescription, must have
a peaceable, public and continuous possession by an unambiguous
title of ownership for five years provided that the possessor has a
just title. " There is no doubt that the possession here has been
peaceable, public and continuous.

Has the possession been by an unambiguous title of ownership?

In my opinion it has, for I understand that phrase to mean that the
person in possession has been in possession as owner and not for
instance as mortgagee or lessee. Had he then had a just title? In
my opinion he may also be said to have that. He has been for five
years (counting the possession of his predecessor) in possession as
registered owner so that so far as relates to technical forms he had
complied with all legal necessities. There was, as a matter of fact,
nothing on. the register book of plots which showed a flaw in the
title. This, however, would not avail him if there was any want of
bona fides on his part. I am satisfied there was no such want on the
part of Abdel Gelil Eff. Ismat. I have no doubt that as a matter
of fact the .respondent Mohammed Mahgub in his evidence gave
substantially the correct picture of the state of mind of everyone
concerned in the transaction when he' said that according to Sudan
custom the eldest male of the family was considered to be entitled
to deal with the shares of the' women and minors. And I consider
further that Abdel Gelil Eff. Ismat may (n6t unreasonably even if