HEIRS OF ABDALLA MOHAMMED HAMADNALLA, Applicants Defendants v. HAMADNALLA ABDALLA MOHAMMED, Respondent-Plaintiff
Prescription=-Co-heirs-s-Claim by one co-heir against others
The claim of a close relative against his co-heirs that he has acquired
title to land by prescription cannot be justified merely on the grounds that
he is the only member of the family who has cultivated the land, and that
his co-heirs have not demanded a share in the cultivation or its fruits.
Acquiescence by the co-heirs does not rebut the presumption that he used
the land .with the consent and by the permission of the co-heirs.
Prescription and Limitation Ordinance 1928, s. 4 (3).
Revision
The Heirs of Abdalla Mohd Hamadnalla applied for revision of a
decree of the Northern Province Court (Harrison PJ.) dated July 17,
1935. The facts are set out in the judgement of Owen C.J.
November 3, 1936. Owen C.J.: This is one of those difficult
but frequently met with cases where a close relative claims against
his co-heirs acquisition of their land by prescription. The province
judge, with hesitation, has decided that by reason of the fact that on
the few occasions where sagia No. 49 (C) Karada was cultivated
in the last ten years the sole cultivator was the respondent, the re-
quirements of the Prescription and Limitation Ordinance have been
fulfilled. He supports his decision by reference to the fact that there
is no evidence that the appellants sought or obtained a share in the
crops.
* Court: Owen CJ.
But here we have in the respondent a man who registered this
land in his father's name during his father's lifetime. The family
lands were cultivated, in accordance with practical custom, by different
members of it. Some lands were actually registered in the names of
the various sons. But this sagia, a small one. has always remained
registered in the name of the father of the family, and tbe evidence
goes to show that, as a sagia, it was cultivated-on those few occa-
sions when it was cultivated at all-by one of his sons, the respondent. .
In these circumstances the relationship of the parties becomes alt-
. important when one of the family claims that he has prescribed against
the rest. It is not enough, in my opinion, that he is the only one that
has cultivated. It is not enough that his brothers and sisters have not
demanded a share of the cultivation or its fruits. I do not think
that acquiescence by the others of his family should enable him to-
say that from the moment he was in possessios of the land time
began to run against his CO-OViUers. The presumption is that he is
occupying and using the land with their consent and permission, and
he cannot rebut it by saying that they never tried to eject him.
So far as the judgement orders rectification or alteration of the
register, this appeal must therefore be allowed. With regard to the
order for payment of money representing the crop, the appeal fails.
This crop was sown by the respondent, and he is entitled to the full
fruits of his labour. H;! is also entitled to the crop sown by him and
growing at the preser : moment.
Application allowed in part