Prescription-s-Interruption. of possession-Whether execution of lease and pay-
ment, of rent to a person wrongly believed to be the owner amounts to- an
interruption of possession-Necessity of intention on part of occupier

Appellant claimed title by prescription from 1920 to 1930 to land
known as "Princess Zahra's land" which in' fact belonged to the respond-
ents. The appellant thought that it belonged to Princess Zahra and took a'
lease of the land from a third 'party whom he wrongly supposed to be
Princess Zahra's agent. In fact the lease was not referring to the land
wrongly supposed to be the property' of Princess Zahra but to a different
plot of land. The appellant paid rent to the said third party for one
'year and then ceased to do so.

The Court of Appeal held that the lease in 1925 and the payment of
rent by the appellant amounted to an interruption of possession within the
meaning of sections 4 (5) and 4 (6) of the Prescription and Limitation
Ordinance 1928, and nullified the effect of prescription from 1920. In or-
der to be 'effective under the Ordinance, possession must be' possession as
owner, and the possession will be ineffective if the possessor during the pre-
scription period admits the right of any other person' to exercise rights of
ownership in the' property, whether or not such other person has or claims

• Court: Owen C.J., Halford and Gorman JJ.'

the right of ownership. . The Ordinance is in the nature of a declaration
of the existing law. Appellant's claim therefore failed.

Prescription and Limitation Ordinance 1928, ss. 3, 4 (5) and 4 (6).

Appeal

The facts are set out in the judgement of Gorman J.

May 5, 1932. Owen C.J.: In the course of the settlement of
the Hassa Estate, Berber Province, a claim was put forward by the
present applicant, that he had acquired the ownership of a plot of
land known as "Princess Zahra's 200 feddans" by reason of his peace-
able, public and uninterrupted possession thereof for a period of over
ten years. The settlement officer rejected the claim on the ground .that
during the period of his occupation the appellant had made a con-
tract of lease with, and actually paid rent for one year to one Hussein
Sabit, who purported to act as agent for the Princess Zahra, who was
then wrongly believed to be the owner of the land, The real owner
was the respondent, but the settlement officer held that the execution
of the lease and payment of rent amounted to an interruption of posses-
sion by the acknowledgment of a claim of ownership by a third
person, and that under section 4 ( 5) and ( 6) of the Prescription
and Limitation Ordinance 1928 appellant's claim was thereby de-
feated.

The actual doc~ment of lease was not produced at the trial be-
cause the appellant had mislaid it, but shortly after judgement was
delivered the document was found, and it was then disclosed, so it is .
said, that the lease did not refer to the 200 feddans supposed to be
the property of Princess Zahra at all, but to 200 feddans the property
of one Zahra Hanim Abdulla, an heiress entitled to a share in other
lands of the Hassa Estate.

An application was thereupon made for the matter to be reopened,
on . the grounds that the true nature of the lease was such that the
appellant's action in executing it did not amount to an interruption
of his possession 0:( the 200 feddans of the respondent; it was not a
lease of the land he was occupying, nor was it granted by any person
who claimed the land, or who had any right to claim it, and therefore
was not an acknowledgment of the right of a third person within
the . meaning of the section I have referred to. This application is
properly one for the settlement officer to decide, but the matter has
been referred to the Court of Appeal for hearing and determination

of a point of law, which may enable the matter to be finally disposed
of without the necessity for reopening at all, and the appellant has
agreed to this course.

The point is this: assuming that the appellant's lease was not
of the 200 feddans whose ownership he is claiming now, assuming
also _ that the person who granted him the lease did- not purport to
lease to him those 200 feddans, and did not lay claim to them, but
assuming also that, as his counsel admitted, the appellant, when he
executed that lease and paid, rent under it, believed that it was a
lease of these 200 feddans, is that sufficient to constitute an interrup-
tion of the period of possession which, under the Ordinance, entitles
him at the end of ten years to say that he has acquired full owner-
ship? If the answer to this problem is yes, then there is no need
to ask the settlement officer to reopen; if the answer is no, then the
settlement officer must reopen the case in order to determine exactly

        what the lease does mean and' how it came to be excuted.                          

I am of opinion that the answer is in the affirmative. When the
appellant executed this lease and paid rent Under it, he believed that
his lease was of the 200 feddans which he now claims. This in my
opinion concludes the matter. The intention to prescribe was not
present. Possession of land whose ownership is claimed under, the
law of prescription must be possession as owner (a titre de proprietaire
is the expression used in the French Civil Code), and possession as
owner must carry with it not only the independent physical control and
power of disposal of the property, but also the intention to retain and
keep available that power and control at any time during the period'
when the possessor should think fit. The acquisition of ownership
by prescription does not take effect automatically or by operation of
law. It has to be set up, and in order to set it up successfully
both these elements=-thar' of physical control and the animus domini-
must be present. If,the appellant should prove the first, but then
admit, by the paywent, of rent or, otherwise, the right of any other
person to exeroige' rights of ownership in the property, his animus
domini is laCkin_ in~, and his possession as owner is not established. And.
it makes no d~rence whether the person, to whom or in whose favour
the admission is made, actually has the right- or even claims it, for
the plaintiff by hiS own act has divested himself of the element neces- _
sary to make his possession as owner complete. If you acknowledge
you are a usufructuary, you cannot prescribe, no niatter to whom you
make the acknowledgment. The 'appellant divested himself of this

animus domini when he executed this lease in 1925, and his claim

           must therefore fail.                                                                                      

It is agreed that the language used in the Ordinance is such
that the 'possession required need not contain this element of the
animus domini or praescribendi. There is a great deal of force in
this argument, but it must by remembered that the Ordinance is in
the nature of a declaration of an existing law, and in my opinion
it should be read in the light of that particular right of acquisitive
prescription which has always been part of that law. The Ordinance
was never intended to make such a' fundamental change in i~ quality
and incidents. The word possession must be construed in the light
of this pre-existing law, and not with reference to its meaning in English
law or with reference to those provisions of the 'Ordinance' which,
read by themselves, appear 'to narrow, down the meaning of the
word in such a way as to deprive it of one of its principal elements.

It is probably correct to! say, though we are not called upon
to decide. it, that the real owner of the land could not plead this
admission by the appellant, if the point at issue were whether or not
the owner's right of action were barred by lapse of time. But reliance
upon this point suggests some sort of interdependence between ac-
quisitive prescription of land and limitation of actions in respect of
claims to land, and there is no such interdependence. It is reasonable
and desirable, of course, that the period of prescription should be the
same as the period of limitation, but it is not necessary, and the
Prescription and Limitation Ordinance 1928 emphasizes this to the
point of absurdity, for, whilst the period in which :the Government
can prescribe is ten years, the real owner's right of action is not
barred against the Government for twenty. It is a, little difficult
to understand this provision, but it has no practical importance and no
interest except perhaps as a legislative curiosity.

But ownership is not extinguished because the owner's right 01

action ~0'i: possession is barred by lapse of time, and a claimant for

ownership of land by prescription is not absolved from the necessity
of proving his right because the owner cannot bring an action against
hifD or any body else for possession. That owner can insist upon

, ;proof of the claimant's case, in spite of the fact that his own /clahn
for possession is barred, and every relevant defence is open to him

           notwithstanding.                            
nas established his claim to full ownership, '. The right of acQuiaitioG

of ownership of land by long continued possession is one that should
be jealously watched by our courts; every claim to it should be put
to the strictest scrutiny and proof, and I do not think the accident.
of this lease having no reference to the plot in question should enable
the appellant to acquire a right which, it is reasonable to infer, was
not within his intention or contemplation up to the time when that

        lease was executed and rent paid under it.                                   .

For the reasons given, I am of opinion that the appeal should
be dismissed with costs.

Halford J.: I concur

Gorman J.: The appellant from about 1920 was in occupation
as lessee of a portion of the Hassa Estate amounting to some 1300
feddans. He also occupied from 1920, but without any title thereto,
a further portion of the estate consisting 0\ 200 feddans, which be-
longed to the late Mohamed Orfi Pasha, but which at. an earlier
date had belonged to the Princess Zahra, and which in these pro-
ceedings has been called "the Princess Zahra's land" for purpose of
identification. By 1925 the original lease he had had run out, and
as he was anxious to perfect his title to the lands he occupied, he took
inter alia a lease from one Hussein Sabit. What was in the appellant's
mind at, the date he took this lease we cannot know, but for the
purposes of this appeal, it must be assumed, in view of what happened
in the court below, that he thought that Hussein' was representing
himself to be the agent of. the Princess Zahra, and 'was purporting
to lease the 200 feddans referred to above. In fact (1) Princess
Zahra had in 1925 no estate in the 200 feddans; (2) Hussein, as now
appears from the actual, lease, was not purporting to. act o? her behalf
or to lease these particular 200 feddans, but was purporting to act on
behalf of one Sitt Zahra and to lease another parcel of 200 feddans,

, part of the 1300 feddans aforementioned; (3) Hussein had no power
to lease these 200 feddans, though whether because be was not author-
ized by Sitt Zahra herself, or because Sitt Zahra herself had no' estate

        1herein is not clear.                                                                   .

For a year after the execution of this lease _ ~e appellant paid
to Hussein the rent reserved thereunder. It -, seems incredible that
the appellant should not have read his lease-to ascertain in res-pect
of what land he was paying rent; but in th)' .eve9ts that have happened,
we must again assume against him that in paying the rent he thought
he was paying in respect of the Princess Zahra's land.' After a
year he discover.ed that Hussein had no power to make the lease,

and ceased to pay the rent. He has paid no rent under the lease

granted by Hussein since then.

When the Hassa Estate came before the settlement officer, Berber
Province in March 1926 the appellant claimed a prescriptive title
to the Princess Zahra's land, as having been in his peaceable, 'public
and uninterrupted possession since June 1920. 111. March, 1930 he
had, of course, not completed the prescriptive period of 10 years, but
no claim was put forward by the respondents till September, 1930,
by which date the ten years had expired. In the' course of the hearing
before the settlement officer, the appellant referred to the lease he
had taken from Hussein, but he was unable to produce, it to the '
settlement officer, who, in these circumstances, took the appellant's'
version of it, and his version was that it was a, lease of the "Princess
Zahra's land," granted by, Hus~ein as agent tor the Princess, and
that he stopped' paying rent when he discovered that "Hussein was
not the representative of an owner." On this evidence the settlement
officer held that the appellant had not had uninterrupted .possession
of the land for 10 years, the possession having been interrupted within '
the meaning of the Prescription Ordinance by his acknowledgment of
the title in one ~laiming to be the owner.

Since that decision the appellant has found the lease and ascer-
tained that there was in 1925 no claim by Hussein of any ownership
for his principal in the Princess Zahra's land, and he now applies to
this court for the Settlement to be reopened, to enable him to give
the true facts in evidence. The court is agreed that, if the new evidence
could have the effect of altering the judgement of the settlement officer,
the appellant should have his opportunity, but otherwise not. The
question .therefore is, whether, assuming that when he took the lease
in 1925 the appellant thought it referred to the Princess Zahra's 200
feddans and that Hussein was purporting to claim ownership over it on,
~biili of his principal, do the facts that he so thought and that be
piid rent under the lease for one year still under that impression,

"and that Hussein, rightfully or wrongfully, was purporting to act on
behalf of the owner of that other land, and was making no claim to
the Princess Zahra's, operate to interrupt the period of prescription;
which in respect of these 200 feddans had commenced to run in the

       appellant's favour in 1920.                                              '      ,

The answer to this question depends on the meanings we attach
to the words "possession" and "uninterrupted" appearing in' section

3 of the Prescription and Limitation Ordinance 192~, which provides
that ownership of land may be acquired by peaceable, public and
uninterrupted possession by a person not being a usufructuary for
a . period of 10 years.

What is the scope of the term "possession" in English Law?

Maitland said that the common law has no theory of possession.
By this he did not mean that it has no clear notion of what is meant
by possession, but that its theory is a simple one and that the artificial
extension of such a term as possession, which is inevitable in all
developed systems of law, was never in English Law made the
excuse for elaborate distinctions and for the creation or recognition
of several specific types of possession; and this refusal is the more
striking when we consider that there was to hand the whole theory of
the civil law ready-made, had such a theory been desired. The
distinction between "Detentio Possessio ad interdictum" and "Possesiso
ad usucapiorim" has no place in the common law, and still less has the
distinction drawn by the modern civilians between the corpus of posses-
sion and the animus, and between the various types of animus, ani-
mus domini and animus praescribendi, of which the classical texts
know nothing.

To the common law possession is a fact; it denotes the state
of having actual physical control, and to anyone in this situation
it extends the' remedies it gives against the disturber of the existing
state of affairs, save with this exception that in "the possessory action
title 'can always be pleaded, and if proved 'will be a defence. In
this attitude towards possession the common law is poles apart from
the civil law conception. Holmes in his great work on the common
law has made this point very clear. The civil law recognised as a
possessor only owners or those on the way to becoming owners and
consequently they denied it and its remedies to the bailee, and con-
trariwise the possessor was protected in his possession even against the
true owner who was relegated to his proprietory action. In England the
thief has a possession which will be protected against all except
the true owner. Notional extensions have been, of course, inevitable;
a master has possession of goods in his house, even though he is
absent, or the goods lost, and if he loses' or abandon goods, they
remain in his possession till some one gets physical control of them,
so that there can be theft by finding if the goods are lost merely
and not abandoned. These necessary extensions apart, English Law
is characterised by the direct way in which' it deals With possession,

giving the term of art practically the same extension as the word
would have in c,ommon parlance,

Now it seems to me that in the English meaning of the term
the plaintiff has been in possession of these 200 feddans continuously
since 1920, and his possession has been public and peaceable, and
his possession was not in fact (whatever he may have thought) that
of - a usufructuary, even assuming that "usufructuary" here includes
a lessee; therefore I should have thought that clearly he had satisfied
the conditions laid down by the Ordinance. But it is said that this
is not so for two reasons- ( 1) Possession here, it is said, has not
the simple meaning that in my view it has in English Law and
ought to have here, and (2) his possession has been interrupted,
and therefore one of the conditions of the Ordinance has not been
satisfied. These two reasons are in truth but two ways of expressing
the same objection but it will be convenient to deal with each of them.

It is said that "possession" here means possession a titre de
proprietaire, or possessio animo praescribendi, because in the codes,
on which this Ordinance appears to have been to some extent modelled,
some such phrase is to be found. It is said that the appellant had
not this animus on taking the lease from Hussein, or during the
year in which he paid rent to Hussein in the belief that the lease
referred to the Princess Zahra's land, and that therefore the appeal
should be dismissed. I can see four objections to this argument, and
in my view they dispose of it.

( 1) In the Prescription and Limitation Ordinance such a phrase
as "a titre de proprietaire," or any equivalent of it, is conspicuous by
its absence, and the more deliberate the omission, and the clearer
the departure by the draftsman from the legislation selected by him
as a model, the clearer to my mind is the indication that it was not
intended to adopt the model in this regard, or to apply any such
unusual and, restricted meaning to what is perhaps the commonest
term of art in the whole vocabulary of the common law.

(2) If the qualifying words "a titre de proprietaire" are used
in the codes based on the civil law, we must assume that they were
inserted because they were necessary, and that the word "possession"
alone would, even in those systems, have a wider significance than
"possession a titre de proprietaire." In these circumstances, is it
legitimate to suppose that the English lawyer who drafted this Ordi-
nance means by "possession" not possession as understood in the

common law, but as a civilian might understand it;, if it were' qualified
by the apt words?

(3) It is dear from the preamble to the Prescription and Limita-
tion Ordinance--"an ordinance to define the law of prescription, etc"
that it was intended to be a complete code on the subject. There is
a long section (section 4), following immediately on the section we
are considering, entitled "Principles of possession"; herein surely one
would expect to find a reference to the special and restricted use made
of the word possession, if any such were intended. There is no such
reference.

( 4) It is important to observe. such words as do as appear in
section 3 to restrict its scope. These words are "not being an usu-
fructuary." Now usufructuary is a term with an exact meaning in the
civil law, but it is' not a term of current use in the common law: the
draftsman has therefore been to the trouble of defining it. The defini- .
tion is to my mind somewhat vague, and it may be that the expression
is intended to cover not only the true usufructuary in the classical sense,
but also anyone holding a derivative title, such as, a lessee. However
that may be, this much is clear, that the draftsman thought it necessary
to except, the usufructuary from the operation of the section. Now a
usufructuary in the strict sense and a lessee both have "possession,"
as that term is understoodIn English Law, but no usufructuary and·
no lessee can, in the eyes ofthe law during the continuation of the usu-
fruct, have possession "a titre de proprietaire;" The inclusion of this
exception therefore is to my mind a strong indication that "possession"
was intended to cover such possession as a usufructuary or a lessee
has. For these reasons I decline to interpret "possession" as meaning
"possession a titre de proprietaire;" or as having any other meaning
than is normally ascribed to it by Engtlsh Law.

Next, it is said, his posession was interrupted. That of course, .
as I have already' said, is but another aspect of the first objection;
if the necessary ~le. ents of possession were not retained. throughout the
period, then of ' se it was interrupted. The animus of the. appel-:
lant, we must . assume, was different in the three period's before
1925, in 1925/1926 and after 1926, but as in my view animusss:
immaterialzand as he had throughout continuous possession, I naturally
take th,~yVtew that it was uninterrupted. But in fact the term inter-
ruPtiO~' s explained in section 4 (5) and (6) and, having regard
to the fact that the Ordinance is of the nature of a code, we ought to
assum that the indications of whitt, amounts to interruption. will

clearly indicate the limits, at least, of what is intended to be covered.
The reference in the sub-sections to interruption by actual loss of physi-
cal possession, and to institution of proceedings by the owner may be
disregarded as of no application here; what is of importance is the
case of interruption by acknowledgment of title by the person in
possession. Here is a case in which the actual physical status quo
is unaltered, but the legal position is altered, and therefore it is here,
if anywhere, that, if loss of the .animus praescribendi were fatal, we
should expect to find some indication of the fact, and we should expect
the sections to be so couched as to cover the present case. It is
not covered-the case which is envisaged by the section, and which
in my view we ought to take as the extreme example of interruption,
is that of a person in possession who puts himself in fact into the
position of a usufructuary, by acknowledging the title to the land
of which he is possessed to be in one who is claiming against him
and claiming to be entitled, the acknowledgment being made by the
possessor to the claimant. If no claim to ownership is made, ac-
knowledgment of a lesser interest does not, apparently, interrupt pre-
scription, still less, as I read it, is prescription interrupted if no claim
over the land 'whatsoever is put forward. Interruption is a physical
act or a notional equivalent thereto, and requires that there be an
interruptor. No one ever interrupted this appellant at all.· He may
have thought he had been interrupted, ~s he might have dreamt he
had been interrupted; in fact no interruption took place.

For these reasons I am unable to agree with the conclusions of
the other members of the court, and I think the appeal should be
allowed.

There is only one other matter to which L would "refer. Prescrip-
tion of Title and Limitation of Actions . are two distinct institutions,
but.they are closely related, and the two may come into play in the
salD.e case. I think it is desirable that, so far as possible,· the terms

, of the two should coincide." In England there is limitation of action
in respect of claims to lands, but no prescription of 'title" thereto. So
long as the old system of private conveyancing held, no .great harm
was done, but with the advent of registration, difficulties arose and
one may suspect that it was knowledge of those difficulties that led
the Sudan to adopt both limitation and prescription of land. But if
this is so, the aim will be stultified, in so far as the. period of limitation
and of prescription are not coterminous. In the present case it is pos-
sible that no action of ejectment can be brought against this appellant