(COURT OF APPAEL)

HASSAN HUSSEIN EL FAKI v. ABDALLA HAMID

AC-REV-371-1967

Principles

  Prescription—Adverse possession—Knowledge of owner of land—Not an essential prerequisite of prescription

   
It is not an essential pre-requisite to the adverse possession of prescription to prove knowledge of the owner of the land.

Judgment

Advocate: Ahmed Suleiman for applicant

       Osman El Tayeb 1. November 26, 1967: —This is an application for revision against the order of the Province Judge, Khartoum, dated January 16, 1967, dismissing a similar application to him from the decree and judgment of the learned District Judge, Khartoum, dated May 18, 19 whereby he dismissed the claim of the defendant and applicants for prescriptive title in respect of 173 sq.m. Forming part of plot No. 46, Block No3. El Gouz, Khartoum Town, registered in the name of plaintiffs and respondents.

     Defendant is the registered owner of Plot No. 47, Block No. 3, El Gouz, Khartoum Town; and in addition to the said plot he has been in possession of the 173 sq.m. forming part of the plaintiff’s house.

     In July 1963, plaintiff instituted his suit applying for an order of ejectment of the defendant from the said 173 sq.m. Defendant counterclaimed for title to the said part by prescription. It has been proved

and admitted that defendant has been in continuous peaceable, public and uninterrupted possession of the said piece of land for the last 17 years prior to the institution of the suit. He erected certain buildings on it and occupied it as part of his house. It appears that the defendant’s possession started by mistake; both plaintiff and defendant were under the mistaken belief that the piece of land in dispute was forming part of the defendant’s house. The mistake was only discovered recently when the plaintiff sought the help of the register and the surveyor.

       On these facts the learned District Judge decided that such possession could not be adverse and as of right; he thought that in order to maintain prescriptive possession, the possessor must have known about the owner of the land.

      The learned Province Judge thought that in this case the defendant has not been holding under a claim or colour of title by the mere fact that he was ignorant of the owner, and not asserting his right as a person possessing adversely to the owner. This opinion, with respect, is wrong. The Prescription and Limitation Ordinance, s. 3 reads: “Ownership of land may be acquired by peaceable, public and uninterrupted possession by a person not being a usufructuary for a period of io years.” The criterion is that there should he actual possession, public, peaceable and uninterrupted. There is nothing in this section, nor in any other part of the Ordinance, which makes knowledge by the claimant, that he is possessing land of another person, a condition precedent to acquiring a prescriptive title.

    To prove that knowledge of the true owner is an essential pre-requisite of prescription, the learned Province Judge gave two reasons: — The first is that “prescription does not run against a party who unable to act.” This is a known rule of prescription, but it seems that the learned Province Judge was mistaken in ascertaining the type of inability or incapacity meant by the rule. The incapacity referred to means personal incapacity to sue like that of an infant or a lunatic or a person from whom the facts have been concealed by fraud. This is not the case here. The registered owner is not under any personal incapacity to sue for the ejectment of the defendant, and it is not alleged that the facts were concealed from him by fraud. Lack of knowledge that the piece of land in question is registered in his name was due to his own failure to find out the true facts from the register, or from the copy of his deed of registration.

      The second reason mentioned by the learned Province Judge is that there should be an intention to possess adversely. I think this was fulfilled by applicants who have built on the land in dispute and continued to occupy it for 17 years without being in any doubt that the land was not

theirs. The criterion here is whether the claimant is possessing the land as his to the exclusion of all others; if so this is adverse possession. The applicants and defendant’s possession was not passive, and the fact that such possession does not help acquiring a prescriptive title, because it lacks the intention to claim adversely, is now denied. See Rustomji, Limitation (6th ed. 1958) p. 438.

Rustomji, Limitation (6th ed. 1958) pp. 834/35 wrote:

ِِِِِِِِ       “ ِِِِAs  regards the question whether a party can set up an adverse possession where lands have been occupied by him by mistake, the rule is that where a person takes possession of land, and through inadvertence or ignorance as to the true line takes and holds possession of land not covered by his deed with no intention of claiming or occupying beyond his actual boundaries, such possession will not support a plea of the statute against the real owner because in such a case the possession lacks an essential requisite, viz, an intention to claim adversely which is an indispensable ingredient to Constitute a dissejsjn. This doctrine, however, has been denied and the true rule appears to be that in all cases if a person under a mistake as to the boundaries enters and occupies land not embraced in his title, claiming it as his own, for the requisite statutory period, he thereby becomes invested with the title thereto by possession, although his entry and possession may have been founded upon a mistake. As to whether a party can set up an adverse possession to lands occupied by him under a mistake supposing the same to belong to him when in point of fact they are outside of his real claim, the doctrine evidently is that where a grantee in taking possession under his deed goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves land, not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse, and if continued for the requisite length of time will bar the right of the true owner. The fact that the party has been in possession under an honest mistake and without any desire of depriving another of property to which the latter is lawfully entitled does not prevent time from running. So it would seem that the plaintiff did not know that the land trespassed upon by the defendant was his (plaintiff’s), will not prevent adverse possession running in favour of the defendant. A mistaken belief by the plaintiff that the property encroached upon by the defendant was not his (plaintiff’s) will not affect the running of the period of limitation, unless, of course, the knowledge of the fact was kept back from him by the fraudulent conduct of the defendant. The criterion of adverse possession is, whether a person possesses land, claiming it as his own, if he does, he must be held to he in adverse possession. He may be

                                                 mistaken in his right or he may be conscious that he is a usurper, but his possession is for himself and against all others. Defendant occupied lands not embraced in his deed under the mistaken idea that they were included in his deed. There was no evidence that he intended to occupy adversely, except such as might be afforded by the fact that he occupied and used them as his own;

Held: he thereby ecquired a title to the lands by possession. The intention of the possessor to claim adversely is no doubt an essential ingredient. But the person who enters on land believing and claiming it to be his own does thus enter and possess. The very nature of the fact is an assertion of his own title and the denial of the title of all others. It matters not that the possessor was mistaken, and had he been better informed, would not have entered on the land.”

      It is clear that applicant, who entered into possession of the piece of land in question under the honest belief that it formed part of his house, and erected buildings on it, is possessing adversely and exclusively; which possession amounts to a denial to the title of the true owner.

    The question of knowledge of the owner, or whether the land entered into belongs to another, should not arise or have any effect in such a case. Since the possession started by mistake it would be illogical to say that there was a mistake of fact and then there should be knowledge of that same fact. In so far as continuous and adverse possession has been established there is nothing to prevent applicant from acquiring title by prescription.

    For these reasons, the application is allowed and the decree of the learned Province Judge is to be set aside, and decree to be passed in favour of applicants.

      El Rayah El Amin C. 1. November 261967: —I entirely concur. The comprehensive judgment of my learned colleague Osman J. clarified the interesting point on this on the law of prescription raised in this application.

Hassan Abdel Rahim J. November 26, 1967: —I agree.