Case No.:

AC-REV-22o-1958

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Registration—Minimum area—Land Settlement and Registration Ordinance. Is. 31 and 32—Procedure for registering area below minimum Prescription—Registration—Minimum, area—Procedure for registering area below minimum

When a successful claim by prescription is made to an area of land below the minimum prescribed pursuant to Land Settlement and Registration Ordinance 1925. S. 31 or 32 the court may declare ownership without offending against the registration laws. The Registrar-General may then either register the land especially under Land Registration (No. x) Rules 1925. S. 3 (3), or refer the matter to the Local Registrar for proceedings under Land Settlement and Registration Ordinance, s. 32 (2).

Judgment

(COURT OF APPEAL) *

OMER MOHAMED TAMEEM v. NAFISSA AHMED

ABDEL HAMID

AC-REV-22o-1958

Osman El Tayeb P.J. January 28, 1958. PC-REV-i 1- (Ed Darner): — This is an application for revision from decree of District Judge, Merowe, dated July 4, 1 in CS-i 17- declaring genuineness of a sanad executed in 1935, and making some other orders that I shall discuss later.

Plaintiff-respondent applied for rectification of the register in respect of half of the share comprising 15 sahms in both sagia No. 7 and saluka No. 1—7, El Barkal and 4 date trees in sagia No. 7, El Barkal, on the ground that they were transferred to her by defendant-applicant in 1935 by virtue of a written sanad in consideration of forfeiting her alimony and sudaq in a case that was decided in her favour against defendant by the Sharia Court, and that she has been receiving profits of the land and date trees ever since.

The learned District Judge framed issues on the consideration and the genuineness of the sanad and alternatively on the possession.

* Court: M. A. Abu Rannat C.j, and B. Awadalla J.

This is inaccurate. The case is one of prescription, the main issue should be as to possession, and if plaintiff was carefully examined before issues, it would have been revealed that defendant was the person in possession and that plaintiff was receiving from him teddan for the land and date trees claimed, and so the most appropriate issue would have been as to whether plaintiff was in receipt of profits (teddan) continuously and as of right. It may be unnecessary to frame issues as to the sanad, although it may be received in evidence and its genuineness may be proved in order to establish that plaintiff was receiving profits as of right in accordance with the agreement on the sanad.

The sanad is more than 20 years old and the court ought to have noticed from the start that the right created by it is extinguished, unless it were pleaded that that right was revived by an acknowledgment or admission in good time during the period. If such plea was made then its execution and genuineness may be put in issue, as a main issue.

However, the learned District Judge found that plaintiff had been in receipt of profits by way of teddan for the land and date trees in dispute, from defendant himself continuously and as of rights such right being based on the old agreement of transfer executed in 1935. This is good enough to establish prescriptive title, and I see no reason to disagree with him.

The decree as passed cannot be allowed to stand in the first place it declared genuineness of the sanad, this is clearly wrongs as it must declare the acquisition of prescriptive title by plaintiff as to the share of land claimed, and also the share of date trees. The date trees. I observe, were not mentioned in the decree.

In the second place, because the share that plaintiff acquired is below the registrable minimum, the learned District Judge ordered that plaintiff should apply to the Registrar to obtain his consent for registration under the Land Registration (No. i) Rule 3 (3), and further ordered that failing to obtain such a consent and failing an agreement between the parties the whole plot be sold by public auction.

In my opinion these orders are not satisfactory in general and in particular cases. The courts are, of course, open to every person to prove his right or interest in any plot of land however small it may be, land equal to the footprint of a person may be of great value to him. When such a right or interest is proved to the satisfaction of the court, it has to declare it. Then the consequential orders must be such as can reasonably be enforceable without hardship being caused to the interested persons. Directing the successful party to apply to the Registrar-general to direct registration of a sub.mifliU1Um share is unreasonable in most cases. The Land Registration (No. i) Rules 192ç, s. 3 (3) provides that for “some special reason,” the Registrar-general can make the required direction. It can easily be seen and decided that this case is an ordinary one, of the common class that frequently come before the courts. I mean it contains no “special reason.” So it should not be allowed to go to the Registrar- General. I think that in a case, other than of the class of this one, the court or the Assistant Registrar of Lands, if it or he thinks that there isspecial reason” in the sense of such strong grounds or circumstances, that the observance of the rules would cause real hardship to one of the interested persons, it or he should make the submission to the Registrar- General by itself or himself.

An order based on agreement of both parties is reasonable, but an order that in the absence of agreement the whole plot be sold by public auction is unreasonable, for two reasons:

(a) There would be hardship to both parties in that both of them would suffer the loss of the plot in dispute; the hardship may be lessened by one of them having the plot.

(b) It causes injustice in the majority of cases, when the share declared to plaintiff comprises a very small part as compared with the rest of the plot, and vice versa. For example, the share declared to plaintiff is 5 sahms from an area of 2 kirats owned by defendant. Sale by public auction would fall on the whole 2 kirats; it would cause clear injustice to defendant.

I suggest the following procedure to be followed:

(1) In a case of prescription, where the share claimed is below the registrable minimum, similar to a claim based on specific performance of an agreement of sale of land the court must, from the start of the case bear it in mind, and inform plaintiff clearly that his remedy is likely to be in damages. This gives a chance for the quantum of the damages to be put in the issues.

(2) The decree starts with a declaration of the right acquired by plaintiff.

(3) In lieu of an order for rectification of the register an order of damages be passed.

(4) In case that the quantum of damages was not decided by the evidence, the court shall direct the parties to agree as to• it. and pass an order on the agreement.

(5) If no agreement is reached, the court shall stop at the declaration as to the right and direct that the compensation should be fixed by the Assistant Registrar of Lands under the Land Settlement and Registration Ordinance, s. 32 (3).

(6) The Assistant Registrar of Lands shall fix the compensation with the assistance of a commission.

In the circumstances I dismiss summarily the application for revision but grant leave to the District Judge to review his decree, with the view to follow the above procedure and to include the date trees.

Babiker Awodalla 1. January 20, i case was adjourned to the Court of Appeal for the simple reason that there appears t have been some confusion in the mind of the court of first instance as to what form a decree should assume in a successful claim l prescription to land the area of which is below the minimum prescribed under the Land Settlement arid Registration Ordinance. This confusion was not set right by the Province Judge against whose decision this application was made.

There is no doubt whatsoever about the facts and the claimant’s title; but the District Judge, after declaring the right of claimant to the land, ordered that the consent of the Registrar-General be obtained within three months from the date of the decree. Failing that and in the absence of agreement between the parties, he ordered that the whole land should be sold and the proceeds divided equally between the parties. In other words, he treated the case as importing compulsory partition in its trail. This is no doubt illogical, More illogical still would be to suggest, as the Province Court did, that in such a case the judge should warn the claimant from the start that he might, instead of getting the land, get something else by way of damages. We fail to see on what ground an owner of land in such cases can be called upon to pay damages to a successful claimant. In the words of Greene M.R. in Hall Brothers Steamship Co., Ltd. V. Young [ i K.B. 748, 756, “the sums payable by way of damages are sums which fall to be paid by reason of some breach of duty or obligation, whether that duty or obligation is imposed by contract, by the general law, or legislation.”

We quite realize the difficulty confronting the courts in cases of this kind where naturally they do not like to pass an order of registration which would be contrary to the clear wording of Land Settlement and Registration Ordinance 1925, s. 31 or 32, but the courts can always give effect to a declaration of ownership without in any way offending against the registration laws. Land Registration (No. 1) Rules 1925, S. 3 (3) gives the Registrar-General power to sanction registration i such cases if in his opinion non-registration would result in hardship; so all that a court has to do in such cases would be to declare the prescriptive title and then order reference of the matter to the Registrar-General under Land Registration (No. 1) Rules 1925, 5. 3 (3). The Registrar-General would then order registration if he considers it is a case for exercising l powers under the rule referred to, otherwise he would refer the matter to the local registrar to exercise his powers under Land Settlement and Registration Ordinance 1925, S. 31 or 32, as the case may be. We notice that the District Judge nearly hit the point, but he was still wrong, for on the one hand he left it to the decree-holder to obtain the Registrar-General’s consent and on the other he assumed a power of ordering sale of the land in order to eliminate the sub-minimum shares, a thing which only the registrar is empowered to do.

This application is therefore dismissed on the merits but the form of the decree shall he altered on the lines indicated above.

M. A. Abu Rannat C.J. January 20, 1959: —] concur.