MAGBOUL ABDEL ADLE, Applicant-Plaintiff v. ZEINAB BINT MOHAMMED, Respondent-Dejendant
Civil Procedure-s-Pleadings=-Denial of registered ammari rights by owner of
land-s-Must counterclaim for rectification of register
Land Law-Ammari rights
Land Registration-Action for possession based on register-s-Denial of rights
must be raised by counterclaim for rectification of the register
Plaintiff was registered as arnrnari of a piece of land in Khartoum Prov-
ince, and brought this action to be put in possession of his rights as such.
During trial he changed his claim to one of full ownership. Respondent
contended that applicant had no rights of any kind in the land. The High
Court dismissed the suit. finding that applicant was not the full owner.
• Court: T. P. Creed. C.J.
Held: (i) The dismissal of plaintiff's claim for full ownership affirmed,
but with leave for plaintiff to amend his claim to one of possession as
ammari.
(ii ] A defence to a claim based on the register must be pleaded by
way of counterclaim for rectification of the register.
Revision
June 7, 1938 . T. P. Creed, C.J.: This case seems to me very
unfortunate, but it appears that the blame must rest on the plaintiff
who has been obstinate about the framing of his case. At first he
made a straightforward claim that he should be put in possession of
his registered rights as an ammari. Later he was ill advised enough
to claim full rights of ownership over a certain part of the land. It
appears that the defendant alleged that the plaintiff had no rights '
of any sort or kind in the land. If this is her defence she should
have raised a counterclaim for rectification of the register. Until
such a counterclaim is raised, the first issue does not arise. It is not
for the plaintiff to show that the register is right, but for the person
alleging the register is wrong to prove the fact in a counterclaim.
The result of the whole case, on which a great deal of trouble
has been spent, is that no tangible result whatever has been achieved.
I am not prepared to boggle at technicalities in such a case as this
and between such parties. _What is required, if possible, is a decision
which will settle 'the rights of the parties. It appears prima facie
that the plaintiff bas been wrongly deprived of his rights as an ammari
and that the defendant's main line of defense is that the register is
wrong. If it is wrong let her bring a counterclaim and prove it.
It seems to me that it is in the interests of everyone that the
matter be settled and there is no time like the present. I therefore
give leave for the case to be re-opened and if necessary for the decree
to be reviewed. The plaintiff is to be informed that in so far as
the district judge has decided that he is not entitled to ownership of
the land his decision is upheld by me, but that I have ordered that'
he shall be given the chance to amend his claim and apply to be put
in possession of his rights as an ammari. If the defendant alleges
that the register is wrong, she should raise a counterclaim for rectifica-
tion of the register.
Application dismissed