Case No.:

PC-REV-48-1957 (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

· Prescription—Period—Nor interrupted by resettlement and re-registration

Obiter dicta: The period of adverse possession of land short of the statutory period is not interrupted by resettlement and re-registration of the land. , After expiration of the six-month period for appeal from the decision of the Settlement Officer in charge of resettlement (Land Settlement and Registration Ordinance 1925. S. 19 (i)], a civil action for prescriptive title still lies.

Judgment

(PROVINCE COURT)

HEIRS OF EL HAG DAFAA EL SID v. HEIRS OF MOHAMED AHMED ALl

PC-REV-48-1957 (Ed Darner)

Osman El Tayeb P.1. September 7, 1957: —Plaintiffs’ predecessor in title was the registered owner of 7 5/3 uds in share No. 1 in saluka No.5 El Shungia Island of Shendi District and defendants were the registered owners of 2 1/2 uds in share No. 2 of the same saluka, by decision of, the Saluka Settlement of 5925. In the recent Settlement of 1951 the same owners have been re-registered as they were. Below this saluka No. g there appeared a new saluka land, that as no dispute arose from any one of the registered owners of saluka No. , it was registered to them according to their registered shares. This is the very common practice of settlements when dealing with new river-bed land. Thus defendants came to be the owners of 2 1/2 uds in the new saluka known to be No. 20.

Plaintiffs claimed the 2 1/2 uds of defendants in both salukas No. g and No. 20 by prescription and applied for rectification of the register. There is an interesting and an important point in connection with prescription claims over lands recently resettled and re-registered or settled and registered within a period less than the prescriptive period.

The learned District Judge said in his judgment: “Accordingly plain tiffs’ cause of action cannot be based on prescription, as the re-settlement affected this registration in 1951. His cause of action, if any, can only be rectification of the register on grounds of mistake or fraud under the Land. Settlement and Registration Ordinance, s. 8g.” It seems that he means to say that there will be no claim based on prescription unless it is stated that the period of prescription has started to run any time after the resettlement and re-registration or the settlement and registration of the land. That the prescriptive period starts to run only after first settlement or resettlement. This may also mean that possession for any length of time before first settlement or resettlement does not account in establishing a prescriptive title. I do not agree to these propositions.

In the first place Land Settlement and Registration Ordinance, s. 85, provides for rectification of the register on the ground of prescription

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as well as on the ground of mistake or fraud. This means that after any land has been settled and’ registered it can be acquired by prescription. The land is said to have been settled and registered when the register becomes final under Land Settlement and Registration Ordinance. s. 18. It becomes final after a p of six months from the date of signature of the settlement register by the Registration Officer or by the Settlement Officer if he made any order in regard to the registration. The course to be taken by any claimant even if his claim is based on prescription is to apply for an appeal under Land Settlement and Registration Ordinance. S. 19. if his claim is made during the six months. But after the six months that is after the register has become final, the course to be taken is that of an ordinary civil suit.

In the second place land, on being registered. whether on first registration or on registration is deemed to be subject to any rights as may be for the time being subsisting or capable of taking place, and those rights include rights in the course of being acquired by prescription. This is laid down in Land Settlement and Registration Ordinance, s27. It is dear the liabilities, rights or interests such as those stated in this section even if these were not brought to the notice of the Settlement Commission

•are not extinguished by the registration of Land ‘in the name of the legal proprietor. Accordingly. a subsequent claim to establish any of those rights is not barred. For example. an easement that was acquired or in the course of being acquired whether it was acquired by grant or in the course of being acquired by prescription, can be established afterwards ordinary case. ‘In the same way a prescriptive title that was in the course of being acquired. and that any time afterwards it was acquired. can feasibly be established by an action. A person was in adverse possession of a piece of land for. say, seven years. A Settlement Commission registered the same plot in the name of that who appeared as proprietor. That person, who remained in possession during and after the settlement up to the end of the prescriptive period, three years after the settlement, can establish his right by an ordinary civil suit.

In conclusion where a prescriptive title has been acquired or is in the course of being acquired the right thereof is not barred nor extinguished by the settlement’s decision. But there is an argument that the effect of a settlement’s decision is to prevent time from running in favour of the possessor it may be said to amount to an interruption of possession. When the registered owner takes legal proceedings he stops time running against him. No doubt the settlement proceedings are legal proceedings within the meaning of Prescription and Limitation Ordinance, S. 4 (6). In the case where a person who has been in possession for 10 years prior to the settlement and has failed to appear before the Settlement Commission to establish his right, it seems (1 am not sure) that he cannot succeed in his claim after the settlement register has become final. He cannot say he had no notice of the settlement’s decision, because the settlement is made in pursuance of statutory notices under Land Settlement and Registration Ordinance 1925. SS. 4 and 6. If this is so, the situation of the person whose right was in the course of being acquired at the time of the settlement, would be obscure. Before the Settlement Commission he cannot establish a prescriptive title, because he has been in possession for a period less than that required by law. He did not appear before the Settlement Commission and it made a decision as to the registration; nevertheless he continued in possession until the expiration of ‘the whole period. There are two points of view: the first one is that the settlement proceedings being legal proceedings have the effect of interrupting his possession, and he cannot succeed, and the second one is that the settlement proceedings being not taken in his presence shall have no effect on his right, that his possession was not interrupted and that he is entitled to succeed. I hold the latter view. For the person who has contested his case before the Settle ment Commission the course open to him is that of an appeal, but he has no right to bring a fresh case on the same cause of action. His right is barred under Civil Justice Ordinance, s. 40.

Now, although the learned District Judge did not frame an issue of prescription, I find that he wisely heard evidence on the question of possession and cultivation of the plots in dispute. That evidence on both sides as the District Judge found, and I agree with him, proved no possession at alt or no possession for the prescriptive period by plaintiffs.

I should therefore not interfere with the decree of the court below and order dismissal of his revision with costs.