Prescription-Innocent purchaser=Claim maturing prior to sale by registered
owner to innocent third party

Some years prior to 1918, 1., predecessor of plaintiffs, went into pos-
session of a one-half share in one-eighth of a plot near Katifia Village, Blue
Nile Province, registered to his father, A. 1:5 possession was based on an
alleged gift from F., a wife of A. who had acquired this share upon A.'s
death during the Mahdiya. The occupation by 1. was disputed by some of
F.'s heirs (the defendants in this action), but the gift was recognized by
them in an agreement with L in 1918 by which the heirs received a portion
of the land in settlement of their claim. This portion was registered to the
heirs after the issue of an ilarn obtained upon their petition to the Shari a
Court in 1925.

'An application for revision by plaintiffs was allowed in part on a matter
which entitled them to an additional credit against defendants. AC-REV -56-
1934.

In 1930 F.'s share in the estate of A. was ascertained by the registrar
of lands and registered in the names of defendants. Defendants, with the.
exception of one, (whose share was transferred to plaintitts) 501d ali the
land in 1931. In the same year plaintiffs successfully challenged the valid-
ity of the ilarn, and in a civi.l suit got judgement by consent for the amount
realized by defendants' sale of the portio n covered by the ilam.

In this action plaintiffs seck recovery of the entire amount realized
by defendants in the. sale, less the amount recovered in the earlier suit and
the value of the one unsold share. Plaintiffs claimed the full amount re-
cited in the deed, admittedly in excess of the actual sale price, which de-
fendants misrepresented in the deed in order to obtain tilt: Governor's ap-
proval. Plaintiffs claimed on alternative grounds uf the gift to their prede-
cessor, J" and prescription arising from more than len years public, peaceful
and uninterrupted possession. Defendants relied on the register,

Held: (i ) Plaintiffs' claim based on the gift would not succeed be-
cause of staleness, but they established their right by virtue of long pos-
session and therefore would be entitled to the value of all the land sold,
less the amount recovered in the earlier action and the share of the one de-
fendant not joining in the sale.

(ii) Since land purchased by an innocent third party in good faith
cannot be recovered, plaintiffs would be entitled only to the value of the
land. The value, however, would not be that recited in the deed where that
was admittedly a fictitious price stated only to obtain the Governor's con-
sent to the sale, but would be the actual price paid or, if that could not
be accurately determined, the fair market value at the time of sale.

(iii) Although plaintiffs could not claim on the gift, the. court found
that defendants had in effect recognized it in respect to the portion re-
ceived in settlement, and this would be considered as a factor against de-
fendants in allocating costs of the action.

Action

May 24, 1934. Flaxman, P.J.: This dispute relates to the owner-
ship of lands in the Halawcin area, now included in the Gezira scheme.

During the Mabdiya Fatma Bint Ahmed Magboul (also known
as Fatrna Bint EI Basha), the wife of Ahmed Alirn, became entitled
on his death to a half share in one-eighth of his extensive lands situ-
ated near Katfia Village and known as Umm Gareis lands. It is not
disputed that her share in these lands was of an area of 40 to 4S
gadaas, and that its exact area was subsequently found by survey
to be 224.930 Icddans.

Ibrahim Ahmed AJim, whose heirs are the plaintiffs, was the
son of another wife of Ahmed Alim, but it is alleged that Fatma Bint
El Basha was sufficiently fond of him to gi .c him her share in her
husband's estate.

There is DO record of any formal deed of gift. Fatma Bint El
Basha died in 1325 Hejira. The gift is said to have been made at
the time of the death of her husband, several years before that date.
After her heath the occupation of her land by Ibrahim Alim appears
to have been disputed by some of her heirs. It is alleged, and it
seems reasonably certain, that a Mejlis took place in Omdurman in
1918 to deal with the matter. The decisions reached were recorded
(vide Exhibit "A" 145/1931), and were to the effect that the gift
was recognised by the heirs of Fatma and that Ibrahim Ahmed Alim,
in settlement of the whole matter, agreed to give the heirs ten 'gadaas
out of the land which had been the subject of the gift. As far ~s this
agreement is concerned the remarks of Cutter J. should be noted:

"The document is one which I should DOt care to admit without the
strictest proof and investigation." . The defendants appearing in the
course of the suit deny all knowledge of it.

In any event, in 1922 (the year of Ibrahim Alim's death) it is
clear from the records of the Mohammedan court of Hasa-Heissa that
certain of the heirs of Fatma Bint El Basha petitioned and asked
that court to give effect to the award of ten gadaas made by the
Omdurman agreement (a copy of which was produced). The court
gave effect to the terms of the Sulh to the extent of the issue of an
ilam in 1925 awarding ten gadaas to the heirs. Here again the heirs
deny all knowledge of the matter.

By virtue of the above ilam an area of 52.480 fcddans cut of
the lands of Ibrahim Ahmed Alim was registered in the names of
the heirs; and in 1930 the share of Fatma Bin! E1 Basha in the estate
of Ahmed Alim was ascertained by the registrar of lands and registra-
tion in their names carried out. Their shares totalled 224.930 Ieddans.
In February 1931 they (with one exception) sold all this land, and
the transactions were duly registered. Meanwhile the validity of the
iJam of 1925 had been queried, and in August 1931 it was cancelled
by a decision of the Grand Kadi, The heirs of Ibrahim Alim then
sued the heirs of Fatrna to obtain the sum realised by the sale of
the 52.480 feddans and obtained judgement in their favour by consent.

In the present action the heirs of Ibrahim Ahmed Alim, by EI
Bashir Ibrahim Ahmed, one of their number nne! also an Omda of
the Halawein, claim the value of the 224.930 fcddans (less 52.480
f'eddans or ten gadaas) sold by the defendant heirs on the grounds
that the land was their property by virtue of the gifl as confirmed by
the subsequent agreement and/or by virtue of long possession. Issue

have been framed to cover both these causes of action, but at the
hearing the plaintiffs have, wisely in my opinion, elected to proceed
on the grounds of long possession only.

I have to consider: Had the plaintiffs acquired a right of owner-
ship of any of the land sold by defendants by virtue of long possession?

A number of witnesses have been produced by plaintiffs as to
this point. Several of them are persons whose evidence should carry
weight; in particular Abdalla EI Fiki Abdul Hassan, a highly respected
notable, who is a magistrate and a member of a native court. If the
evidence is to be accepted it proves beyond reasonable doubt that
Ibrahim Ahmed Alim and his heirs had undisputed and peaceable
possession of the land they claim for a period sufficient to have enabled
them to acquire ownership.

The defence is a negative one. No witnesses are called, and
those defendants who might be in a position to make statements
throwing more light on this matter have not troubled to attend in
person, although the claim is by no means a small one. They rely
on the registration, in spite of the fact that there has been ample time
for plaintiffs to acquire the rights they claim since its date (1910).

In my opinion the plaintiffs have succeeded in establishing a
right to the land by virtue of long possession and I find in their favour
on this issue.

The area to which they have established a claim is the 45 gada as
less the ten gadaas surrendered to the heirs of Fatma and the 19.916
feddans, the share of Fatma EI Soghaira, which was not sold by her
and which has since been transferred to the plaintiffs. (That is,
224.930 feddans less 52.480 feddans and 19.916 feddans or a total
of 152.534 feddans.)

This land has been sold by the defendants and purchased in good
faith and the plaintiffs cannot now conveniently recover it. They
claim and in my opinion are entitled to its value. It is said by the
defendants to have been sold for £E.2.500 m/rns per gadaa, al-
though doubtless in order to obtain the Governor's consent to the
transaction, they stated the sale price to have been double that sum.

The plaintiffs calim at the rate of £E.5 a gadaa: they also
state that a reasonable value for this land at the time of the sale
was at a low figure because the transaction was carried through
hastily-before the plaintiffs could establish their rights. This is not
borne out by the evidence. This evidence satisfies me that the price