HEIRS OF ABDEL GADER KHEIT Plaint iffs v. HEIRS OJ!' DAKHEIT HAlIID Defendants
Prescription - F1lli1ily relationship- Pr-esunpt i.on o.r;ninst ndverse posseosioll
Rebutted by claimants' use or \'Iall to 'separate area occupied by them
and claimants not being co-heirs of registered owners.
Plaintiffs, heirs of A., were in possession from 1914 up to the time
of this suit of part of a plot located in Hassa Heissa District. A.
had been in"possession of this part for over 10 years until his
death in 1914. Unkno'l-m to plaintiffs, the entire plot VIas registered
in 1923 to B., father of A. and of defendants.
* Court: !.I. I. E1 lJur, D.J.
In this suit for :rectification of the Register, plaintiffs
. claimed title by prescription to the area occupied by them. At the
trial it vIas proved that plaintiffs (and their predecessor, A.) had
maintained peaceful, pqblic and uninterrupted poss~ssion for over
10 years, that plaintiffs in 1918 had built a wall (still standing)
around the disp'lt ed area, and that plaint iffs were· not co-he irs with
defendants, A. having predeceased defendant's predecessor, B •.
Defendants contended that plaintiffs' possession was in defendants'
behalf and with their consent.
~: The presumption that plaintiffs held by relationship was
rebutted by the facts that, (1) plaintiffs had bu i Ltr- a. wall separating
the area occupied by them, and continued in exclusive occupation of
the disputed area, and (2) plaintiffs were not co-heirs ~lith defendants.
Action.
comprLs i.ng 309 3.f.I., forming part of Plot 4 Block 49 Rufaa Town, now
registered in the name of Bakheit Hamid, father of defendants was occupied
by their late father, Abdel-Gader Bakheit Hamid, since the very early
days of this Government, and that their (plaintiffs') father remained in
occupation of the said area until he died in 1914, t'lhen they resumed
possession uh I ch they maintained till this day. Unknown to plaintiffs,
this area was registered by Bakheit Hamed (plaintiffs' grandfather and
father of defendants) in his own name in 1923.
Plaintiffs now claim that apart from original title they had acquired
title to the area in question by solve of peaceable, public and uninterrupted
posses~ion thereof for over 10 years. Defendants deny plaintiffs' claim
on both grounds of original and presumption titles, and contend that
pll1intiffs Here in occupation on behalf of defendants and \dth their consent •
I! .. 7;:' "'pinion plaintiffs have established on sufficient evidence
that ~he area in dispute was occupied by ·~heir father Abdel Gader Bakheit
since the early days of this Government, when anybody could settle in the
vacant and be selected \~ithout permission from someone else. Abdel Gader
Bakheit maintained that occupation ,mtil he died in 1914, when plaintiff
succeeded him in possession, which they maintained till this day. The
faot that Abdel Gadel' selected for his residence on ownerless area adjacent
to that of his father does not in any 'tlay ,suggest he was holding that
area on behalf of his father. It is clear therefore that plaintiffs'
father occupied this area in his own right until he died in 1914, and
that since that date plaintiffs have remained in possession "lith that
intention. The evidence adduced by both plaintiffs and defendants goes
to prove the above.
Defendants could not seriously deny, after taking the oath, that
plaintiffs had been in peaceable, public and uninterrupted possession
of :the area at least since 1918 Hhen plaintiffs built the present existing
wall round the said area. I say defendants fail to establish their
unf'ounded allegatioh that plaintiffs vlere holding this area on their
behalf, particularl~ when we notice that plaintiffs 2re not co-heirs
vlith defendants, as their father Abdel Gader predeceased his father Bakheit
Hamid" in whose name the who l.e plot l'las registered in 1923.
There is nothing to suggest the coincidence of plaintiffs e.t the
registration by Bakhe Lt Hamid of this area in his name upon Set i;ler,lent
in 1923 or that they admitted his title to it. Even so, the possession
of pMaintiffs since 1923, pr at least for the last 10 years, gives them
a prescriptive right to it.
I therefore give judgment in favour of plaintiffs end hereby issue
the enclosed decree.
;,pplioatiol1 for revisiol1 uas sumr.larily d.ismisoed by the Chief
Justioe in HC-ilEV-15-1945.
Decree a~corJi"ilx.