Principles

·  LIMITATION  OF ACTIONS Assignment  of leasehold coupled with possession — cause of action renewed by continous  peaceful possession— Prescription and Limitation Ordinance 1928, s. 9.

·  LANDLORD AND TENANT— Assignment of leasehold coupled with possession Cause of action renewed by continuous peaceful possession_Prescription  and Limitation Ordinance 1928. s.9

·  LAND LAW --- Leasehold assignment coupled with possession — Cause of action for specific performance of assignment not time-barred.

·  EQUITY — Leasehold assignment coupled with possession — Cause of action for spacific  performance of assignment not time-barred.

Specific performance of an assignment. leasehold is not time-barred, even though 10 years have elapsed since assignment, where the claimant has been in adverse possession for almost 10 years and he entered into possession in accordance with the assignment. Prescription and Limitation Ordinance 1928, s. 9. renews a right of action where the obligation is admitted, and almost 10 years of public and peaceful occupation implied such an admission.

Specific performance of an assignment. leasehold is not time-barred, even though 10 years have elapsed since assignment, where the claimant has been in adverse possession for almost 10 years and he entered into possession in accordance with the assignment. Prescription and Limitation Ordinance 1928, s. 9. renews a right of action where the obligation is admitted, and almost 10 years of public and peaceful occupation implied such an admission.

Specific performance of an assignment. leasehold is not time-barred, even though 10 years have elapsed since assignment, where the claimant has been in adverse possession for almost 10 years and he entered into possession in accordance with the assignment. Prescription and Limitation Ordinance 1928, s. 9. renews a right of action where the obligation is admitted, and almost 10 years of public and peaceful occupation implied such an admission.

Specific performance of an assignment. leasehold is not time-barred, even though 10 years have elapsed since assignment, where the claimant has been in adverse possession for almost 10 years and he entered into possession in accordance with the assignment. Prescription and Limitation Ordinance 1928, s. 9. renews a right of action where the obligation is admitted, and almost 10 years of public and peaceful occupation implied such an admission.

Judgment

Osman El Taveb, P. J., January 22, .1957 :— This is an application  for revision from the decree of the District Judge, Shendi, dated July 31 1956 in his CS-195-1955 dismissing the case of plaintiff’s applicant in  respect of an application for rectification of the register to two plots of land in Hawashas Nos. 48 and 49, Bagrousi Village of Shendi District, on the ground of specific performance of an agreement of assignment of the lease hold interest in those two plots for value and by prescription.

In the first place the learned District Judge decided that the agreement of assignment as written and dated July 15, 1944 (Exh.A) was good and valid, but that the right of action thereon has been extinguished by lapse of time. The petition in the case is dated July 27, 1954 and received in Court on November 22, 1954; prior to the first date more than 10 years had passed from the date of the agreement, from which the right of action had started to accrue.

In the second place the learned District Judge decided that plaintiffs entered into possession from 1946, and they have been there up to the date of the action. The evidence supports this decision, as P 3, 4 and 5 proved possession of plaintiffs. But as this possession was not completed 10 years prior to the institution of the suit, the learned District Judge dis missed the action on this ground as well as on the ground of the assignment.

It is obvious that had plaintiffs been suing on prescription alone, they must fail. One day less than the statutory period is enough to defeat the claim. On the other hand, had their claim been only on the agreement of assignment, it must similarly fail, because one day more than the statutory period is enough to bar the claim. But plaintiffs in this case are suing on an agreement of assignment coupled with possession. This, in my opinion, changes the position d’nd entitles a Court to give an equitable relief by way of specific performance of the agreement of assignment which is more than 10 years old.

An agreement of this kind, that of assignment of leasehold interest in land or an agreement of sale of land, when properly concluded between the parties without any defect in the title or in the consent or in the consid eration, becomes binding and the Court will not hesitate to grant specific performance thereof, even though the assignee or the purchaser had not entered into possession of the property, provided that the cause of action was not barred by lapse of time. When the assignee or .purchaser has entered into possession of the property at the time of, or shortly after the conclusion of the agreement, he puts himself in a much stronger position. He would be acting in accordance with the agreement; he has asserted his right. In this’way, I should think, he has prevented time from running against him. His cause of action for the enforcement of the agree- meat accrued from the time of the conclusion of the agreement, but it will not be extinguished if he,’ within the limitation period, took over in accordance with the agreement and exercised adverse possession, with the knowledge and cognizance of the legal owner: This may be based on the prin ciple that time generally runs in favour of the person in possession.

It may be said that there is nothing in the Prescription and Limitation Ordinance referring to an agreement of assignment or of sale of land coupled with possession, in order not to extinguish the right of action in respect of enforcement of the agreement. It is true that there is nothing expressly provided, and a rigid interpretation of the law may not allow the line of thought that I have adopted. Under Prescription and ‘Limitation Ordinance, s. 9. the right of action shall be renewed if there is an admission of the obligation, verbally or in writing, in lack of such an admission, a liberal interpretation would lead me to say that adverse possession for any time within the limited period in the presence of the other party and with their knowledge as to the nature of that possession constitutes admission that shall renew the right of action.

The agreement of assignment was concluded in 1944 between defendants’ predecessor, the registered leaseholder, and plaintiffs. This was attested to by the Omda of the area, who was authorised to give consent on behalf of the Governor. Tie assignor himself died too soon, just the next year, before the assignment could formally be registered. As the formal registration in case of heirs, who are in this case as many as 14 persons, is usually an uneasy matter, the plaintiffs asserted their right by entering into possession. The plots in dispute are high Hawasha lands that are cultivable by high floods only, and as proved, plaintiffs have been cultivating them continuously whenever they are irrigated.

In the circumstances, I find it just and equitable that in so far as the agreement of assignment was fair in itself, and that it was coupled with possession, specific performance thereof should be granted.

It is ordered that the decree of the District Judge, Shendi, dated July 31, 1956 be set aside and that decree for specific performance of agreement of assignment dated July 15, 1944 coupled with possession, be entered in favour of plaintiffs-applicant.