Case No.:

AC-REV-212-1958

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription—Possession-Date trees—Attendance and collection of crop not posses--sion of land—Prescription and Limitation Ordinance 1928, s. 3

Plaintiff’s predecessor-in-title owned a house and planted date trees on the land to which plaintiff here claims title by prescription. The house was washed away by the t1946 flood; date trees remained, and plaintiff continued to attend to them and collect their crop.
Held (i) ownership of date trees and entry for irrigating and collecting their fruit do not constitute possession of the land under Prescription and Limitation Ordinance 1928, S. 3.
(ii) Plaintiff is entitled to the customary right to the date trees under Land Settlement and Registration Ordinance 1925, S. 27 (e).

Judgment

                                                 (COURT OF APPEAL)

MOHAMED SALIH ABDEL RAHMAN AND OTHERS v. OMER IDRIS

AND ANOTHER

                                                AC-REV-212-1958

Osman El Tayeb P.J, PC-REV-6 (Ed Darner), September 30, 1958: — This is an application for revision from decree of District Judge, Merowe, dated May it, 1958, fl respect of the second order in which it is ordered as follows: “It is further ordered that plaintiffs be given the right of entry to irrigate their date trees and take the crop.”

The case was that plaintiffs-respondent claimed prescriptive title of half a feddan in sagia No. ‘3 Abu Dum. It is revealed that their predecessor- in-title had a house on this plot and also had some date trees. The house was washed out by the 1946 flood and the occupation ceased to exist, but the date trees are still on the land. The plot was not under cultivation. So there was no other way of enjoyment besides the occupation and the attendance of the date trees and collecting their crop.

The enjoyment of the occupation ceased to exist since 1946, that is to say, it was discontinued, and it was decided before that the ownership of date trees and the entry for irrigating and collecting their fruit do not constitute adverse possession to the exclusion of the owner of the land. In Heirs of Khalafalla El Haddad and others v. Ahmed Mohamed Gubara and others, PC-REV- (Ed Darner), this same point was discussed and decided thus:

“This land is registered agricultural land and prescriptive adverse possession as to it can only be exercised by its cultivation, which is the use to which it is fit and enjoyable. The date trees, the mango tree and the wall of an old store may be on the one hand permissible and on the other not exclusive enjoyment of the land.”

The learned District Judge correctly decided this point by dismissing the claim of prescription and there is no application from it. But he made in favour of plaintiffs and respondents the above order as to their right in the date trees from which defendants and applicants are applying. This order is virtually a declaration of the ownership of the date trees by plaintiffs. It was not .a part of this claim but it is useful for the end of litigation. It was sufficiently proved that these date trees were grown by plaintiff’s predecessor-in-title, and I do find good reason by applicants in their contest of the right of plaintiffs in the date trees.

Application for revision is summarily dismissed.

M. A. Abu Rannat C.J. December 11, 1958: —This is an application by the defendants in Merowe civil suit No. 384—1957 against the decision of the Province Judge, Northern Circuit, dismissing summarily an application for revision by the same defendants against the decree of District Judge. Merowe dated May ii. 1958.

The facts are short and simple. The plaintiffs-respondent have been in occupation of houses, and owned date trees on a plot of land in Sagia No. 13, Abu Dom, colored red on a sketch submitted by plaintiffs.

The occupation and possession of the date trees are admitted by defendants. On the evidence before the District Judge, he rightly found that plaintiffs did not acquire a prescriptive title to the land, but that they are entitled to the customary right of the date trees under Land Settlement and Registration Ordinance i S. 27 (e). The Province Judge rightly confirmed the decision of the District Judge.

Applicants are making the same contention to me. Their application is hopeless and I summarily dismiss it.