Land Law-Bona fide purchaser-Protection against a claim to title by prescription
Land Law=Usufructory=Definition

Land Registration-Prescriptive claim-Time within which claim for rectifica-
tion of the register must be made

Prescription-Animus domini=Commencement of prescriptive period
Prescription-Period of prescription-Time when period begins to run-Whether
claim may be barred by lapse of time

In 1913, plaintiff sold a hosh in Omdurman to defendant's predecessor
in title, but remained in possession under an agreement to pay rent. Plain-
tiff asserted that in 1921 he formed an intention to acquire title again.
Defendant contended that plaintiff held the land as a usufructory, and
also that plaintiff first acquired the right to assert prescriptive title in 1923
and that the claim in 1937 was barred by the passage of time ..

Held: (i) Usufruct is a real right to the use and enjoyment of prop-
erty with the bare ownership belonging to another. Such a relationship
cannot exist between landlord and tenant.

(ii) The period during which a prescriptive claim is established does
not necessarily begin with the commencement of possession, but begins
when the possessor has formed the necessary animus domini with respect to
title. In this case it began in 1921 and became a matured right 10 years
later in 1931. Ten years had not yet passed since 1931, and the action was
not barred by the provisions of the Prescription and Limitation Ordinance
1928, s. 7.

(iii) Although the defendant was a purchaser in good faith of the
hosh for valuable consideration, he is not protected by the proviso to sec-
tion 85 of the Land Settlement and Registration Ordinance 1925 from a
prescriptive claim such as that held by plaintiff.

Ahmed EI Beshir Ahmed Rahmatalla v. Heirs 0/ Ali Mohammed Rahma-
lalla AC-APP-28-1935, 2 S.L.R. -; distinguished.

Land Settlement and Registration Ordinance 1925, ss. 27, 85.
Prescription and Limitation Ordinance 1928, ss. 3, 4, 7.

Action

Advocates: T. Francondi . . . for plaintiff; Y. Nigm . . . for
defendant.

January 5, 1938. Flaxman J.:' This is a claim to the acquisi-

* Court: Flaxman J.

tion of ownership of a property known as hosh 3/4/648, Omdurman
Town, by virtue of a peaceable, public and uninterrupted possession
within the meaning of sections 3 and 4, Prescription and Limitation
Ordinance 1928 (1) for a period of at least fifteen years.

The defendant does not deny that the plaintiff has been in occu-
pation, but claims that he cannot acquire ownership under the pro-
visions of the above Ordinance because, (a) he is a usufructory, and
(b) because the action was not brought within the period of limitation
specified in the Ordinance.

The defendant was registered as the proprietor of the property
on October 2, 1937, on transfer for valuable consideration by Musa
Aslanian, who purchased the property from plaintiff in 1913. He claims
that in the circumstances of this case he is protected by the proviso
to section 85 of the Land Settlement and Registration Ordinance 1925
(2), and that the court has no power to order rectification of the
register in favour of plaintiff.

The first issue is "Was plaintiff a usufructory?" It seems that in
1913 the plaintiff, who was then the owner of the property in question,
entered into an agreement under which he sold the property to de-
fendant's predecessor in title, subject to a conditional right to repur-
chase. Under terms of the agreement he remained in occupation,
undertaking to pay a monthly rental to the purchaser. It is admitted
that he wholly failed to pay rental as agreed. It is now argued for
the defendant that the plaintiff, as a tenant, is in a usufructory posi-
tion. I do not think the question admits of serious argument. Of
course he was not. Usufruct is a real right to use and enjoy property
of which the bare ownership belongs to another. There is a restriction
of the rights of ownership. No such relationship occurs between a land-
lord and tenant, and I have no hesitation. in finding that the plaintiff
had no usufructory rights in this instance. Usufruct is a real right
which the plaintiff did not possess.

Issue 2 is "Is the plaintiff's claim barred by lapse of time?" The
defendant's submission is that plaintiff, having been in possession since
1913, might have asserted a right, to ownership by prescription in
1923, A right of action accrued to l;im in that year which he failed to
enforce by action within the period of 10 years specified in the Pre-
scription and Limitation Ordinance. He submits that under section 7
of that Ordinance no action now lies to enforce that right. The

decision of the Chief Justice in AC-APP-28-1935¹ is cited as one
which the court is bound to follow.

The plaintiff submits that he is entitled to claim that possession
runs from a date to suit himself and that he is not bound to claim
possession from the beginning of his occupation. He states that in
this instance a right of action accrues from 1921, the time when he
first formed an intention of acquiring the ownership of the property.

I will first consider the point raised as to AC-APP-28-1935. I
do not find the decision applicable to this case. It is a decision on an
application for revision in a suit in which the circumstances were dif-
ferent from those now before the court. The claim was for. specific
performance of sale agreements of land, and the remarks in the judge-
ment upon which defendant now relied were dicta which did not form
the grounds for the determination of the application. And, it may be
.added, the learned Chief Justice did not go further in his reference
to an acquisition of title to land by prescription than to state that there

was a risk of losing the benefit of a prescriptive title in case of neglect
of an obligation to register by reason of a permissive power in the
court. The decision does not enable me to determine the question
now before the court. What I have to determine is whether the effect
of section 7 of the Prescription and Limitation Ordinance is to bar the
enforcement of this claim. Time runs from the accrual of a right of .
action and if, in the case of a claim to the acquisition of a title to
land no action is instituted to enforce the right within a period of ten
years from the date upon which the right of action accrued it may be
that the action is limited by the Ordinance.

But it does not follow that because the plaintiff took possession
of the defendant's land in 1913 that it is from that· date that the period
for the acquisition of title will run. In this case the plaintiff entered
upon the land as a tenant and the plaintiff himself would find it diffi-
cult to assert that it was from that time that he formed an intention
to acquire its ownership. Tme will only commence to run from the
time when he formed an intention to acquire the land as his property.
The land was delivered to him to be used in a certain limited way
(as a lessee) and at first there may have been no intention other
than to use it in that way. It requires a proprietory possession to
enable the acquisitive effect of prescription to operate and only from

). Ahmed El Beshir Ahmed Rahmatalla v. Heirs of Ali Mohammed Rah-
rnatalla, reported in this volume.

the time the lessee intends to establish himself as an owner does time
commence to run. So long as the plaintiff intended to remain in pos-
session as a tenant, recognising the rights of defendant as the owner
of the land he did not possess the animus domini sufficient for the
purposes of prescription.

In this case the plaintiff has sworn that he formed an intention
to acquire only in 1921 and his statement goes unrebutted. I con-
sider that he is entitled to make his claim on grounds of a possession
capable of being turned into ownership by acquisitive prescription
from that date.

The wording of section 3 upon which the plaintiff bases his claim
is, I think, incomplete, and in interpreting it I consider that a court
must take it as intended that the possession referred to means a pro-
prietory possession and not a precarious one. In this case there
was such a continued failure to pay rental that the owner should
in the course of time have been put upon his guard as to the possibility
that an intention had been formed in the mind of his tenant to acquire
ownership in course of time.

In view of the above I find on this issue that the claim is not
barred by lapse of time,

The next issue is "Does the proviso of section 85, Land Settlement
and Registration Ordinance 1925 apply to this claim?" It is only
necessary to read the proviso to see that· it can only refer to (a) and
(b) of the section, which are not applicable here. If further con-
firmation is necessary it can' be obtained by a reference to the Sudan
Government Gazette in which the Ordinance was published (No. 466
of 1925) where the spacing of the section makes the intention more
apparent.

Reference may also be made to section 27 of the same Ordinance
which provides in subsection (f) that rights in the course of being ac-
quired by prescription are a liability to which land may be subject
without notification in the register. The proviso of section 85 does
not apply to this claim, and the defendant, although a purchaser in
good faith for valuable consideration, is not protected by it.

Finally, the issue "Has the plaintiff acquired a right of ownership
of hosh 3/4/648, Omdurman, by sufficient peaceable, public and un-
interrupted possession?" requires determination. The defendant has
called evidence which was apparently intended to establish the fact