(PROVINCE COURT)

HEIRS OF ABDEL GABBAR MOHAMED EL AMIN  v.

FATMA MOHAMED EL AMIN

PC-REV.40-1958 Ed Damer

Principles

·  Prescription—Specific area of land claimed by prescription has to be proved Custom—” Idafa a —Custom in Gezira area

The proof for prescription is very strict. The person claiming by prescription must prove the specific area of which he is actually in possession.

Judgment

Osman El Tayeb P.J September 25, 958 :—This is an application for revision from decree of District Judge. Merowe, dated March 16, 1958, in his declaring prescriptive title in respect of three kirats eight sahams in sagia No. 23 El Affad to plaintiff and respondent out of the thirteen kerats registered in the name of defendants and applicants.

There is some evidence to show that respondent has been in possession of some land in the sagia mentioned, and there is evidence to show that the plot registered in names of applicants was originally the property of a common ancestor. Applicants’ predecessor in title was the full brother of respondent. At the time of the settlement in 1905 as their common father was dead, the thirteen kirats that was declared to be the property of the common father was registered in the name applicants’ father.’ The latter was the only male member of the family, that consisted of himself and his sister respondent and their mother.

It is common place knowledge that this practice of registering, the family land in the name of the male member was prevalent in the locality. It is known in the Gezira area as” Idafa.”

The case of this type is a case of prescription; continuous possession as of right based on the acknowledgment of the right of inheritance. The Court of Appeal in Hassan Fadi El Mula v. Zeinab Fadi El Mula, AC-REV- 146-1956 (an identical case from Merowe) stated this note thus:

In such cases the courts of the Sudan have been following the rules for prescription. Those parties who claim that they were entitled to a share in land which did not appear on the register were bound to prove that they were in possession by right of such custom.”

The Court of Appeal further adds:

The proof for prescription is very strict and it was not sufficient to show that the claimant was in possession of a share without having the number of feddans or kirats he was actually in possession..

in my opinion the present case does not satisfy the last preceding quotation  The evidence adduced by her is not generally satisfactory in proving her possession, and again it does not strictly support her in claiming three kerats eight sahams. It appears that respondent has only chosen to claim one-third of land, on the ground that her legally inheritable share would have been one-third of the property vis-à-vis her brother who would have been entitled to the other two-thirds. However she has to prove the specific area which she is actually possessing, whether it is three kirats eight sahams or less. The local system of Mudairia does not present ascertainment of the share that each one of the co-owners occupy, but it helps to show the area possessed or occupied by each one of the interested persons in relation to their rights.

The case has, therefore, been sent back for hearing of more evidence in order to ascertain the area to which respondent is entitled by prescription. I may add that it would be useful to adopt the common practice of asking respondent to produce a survey sketch of the area claimed by her. This would make her case more clear if she has been continually cultivating one and the same place. But if the Mudairia is shifting her from place to place every year and the other she is to prove that, and to prove the area of the plot she is cultivating.