Land Law-Building situated on land of another-Custo11UUY rights

Land Law-G{ft-Validity of-Whether gift between Muslims has to be effected
by means of an isha,d-Registration--Governor's consent

Land ~-Hikr custom-Rights as between owner of 'land and possessor who
had erected a building on the land

. Native Law and Custom-Hikr custom in Haifa area-s-Whether registration in
name of owner of land defeats hikr claim-Whether hikr prevails over pre-
scription rules applicable

Prescription-Local custom-Effect of custom on rules of prescription
Prescription-s-Period of-Five years period of Egyptian law-Whether longer
period required where possessor has no just title

i The hikr custom prevailing·in the HaIfa area can be interpreted as fol-
lows: Permission is granted to build on the land of another. It may'
or may not be in writing, usually not. Rent or share of the rent fur
the property mayor may not be paid to the owner of the land. In the case
of a stranger, rent is sometimes but not always paid. In the case of a
son being tenant of the land of his father, it is not the custom that the
son should pay rent. The Jjght is alienable and inheritable.

In the case of a son it is possible for the son as tenant to obtain a
title by possession provided he remains in possession for a, sufficiently long
period. It is a question for decision in each case whether it was the inten-
tion of the father to abandon possession of the land to his son. The
Egyptian law of prescription need not be applied as it is inconsistent with
the custom.

Appeal

The judgement of the High Court is preceded by that of the Dis-
trict Court. The facts are fully set out in the judgement of the HaHa

        District 1 udge.            .

September 4, 192i. 1. N. Buller, D.1.: This is an action brought
by the plaintiffs Sherif Dawood and Osman Dawood claiming that the
register of '2 plots of land and the buildings. thereon be rectified and
that the plaintiffs be shown as owners of the said plots of land and

* Court: District Court. I. N. Buller D.I., High Court: G. W. William-
son I.

buildings m the place of their late father Dawood Suliman, who at his
death on the May 1, 1920, was the registered owner of the said plots.

The plots of land are described in the register as follows:

First Plot: plot I, block 6 C, containing a store thereon.

Second Plot: plot No. 10, block I A, containing a house thereon.

I shall consider the claims with reference to these plots seperately.

As regards the first plot: The plaintiffs allege that in the beginning
of 1910 their late father gave to them jointly the first mentioned plot in
order that they should build a store on it. The plaintiffs allege that
they then themselves built a store on the said plot, and, with the excep-
tion of a period of 8 months in 1917 when the plaintiffs let the store
to a tenant named Abdel Aziz, they have themselves been.in actual
occupation of the store and have kept their goods in it ever since. They
admit that when this land was settled in 1915, their late father regis-
tered this plot in his own name, and' when he died in May 1920 his
name was still in the register as owner of this plot. The plaintiffs now
want the register rectified so as to show them as being owners of this

        plot in the place of their late father.                                  

As in the other cases in which this family is involved, namely 0s-
man's case No. 37 of 1921 and Sherif's case No. 39 of 1921, so in
this case, all the defendants, who are the remaining heirs of the late
Dawood Suliman, admit the plaintiff's claim with the exception of
defendant 9, Sakina, the minor daughter of the said Dawood Suliman
by his second wife and, also defendants 10, Zeinab, the. third wife of
the said Dawood Suliman, and defendant 11, Zeinab's minor son, who,
as in the former cases, are represented by Zeinab's father, Dawood
Hag Hussein, who vigorously opposes the claim,

. As I have shown in these former cases the plaintiffs cannot claim
now to have the alleged gift of their father registered for the principle
"delay defeats equity" stops them.

I have, therefore, as in the former cases, -to consider two questions
only, namely:

(1) Did tjle plaintiffs build this store in 1910 as alleged by
the¢

(2) Whether they built the store or not, are they entitled to the
ownership of not only the store, but of the land upon which it

                            stands by acquisitive prescription?                                               

I think both these questions are to be answerec m me attirmative.
I think the evidence that the plaintiffs have, produced is sufficient
to prove that they built the store. The~ have' produced witnesses who
were concerned in the actual building, 'who state they, were employed',
and paid by the plaintiffs. They ha~e also produced a witness who has
a shop opposite to the store, and who definitely states that. plaintiffs
built the store. On the other hand the opposingdefendants have not
produced any witness to contradict the plaintiffs', witnesses on the mat-
ter: I consequently hold that the plaintiffs did build ~_ store.

Likewise with the matter of prescription, the ,pI8intiffs have pro-
duced a considerable amount of evidence that the plaintiffs have been
occupying this plot for the last 8 or 9 years ostensibly under a just title,
of a gift from their father, and this evidence is not contradicted by'

any evidence produced by the opposing defendants.                  

I hold, therefore, that the plaintiffs are entitled to the ownership of
both this plot, namely plot I, Block 6 C, and the, store thereon by: ac-
quisitive prescription, as they have been in possession of' the same '
either themselves or through' a tenant for more than 5 years Under, a
just title. The register therefore must be rectified accordingly,

I come now to the consideration of the claim as to-the second plot,
and the house thereon. The plaintiffs allege that when, their mother
died in 1906 their father gave to them the house in-question and the ,
land upon which it stands. At that time this plot of land had not been '
brought on to' the building-land register. and it formed part of ,sagia
No. 37 of which the plaintiffs' father was a co-owner, his undivided-

share being' 1,4.                                         

The plaintiffs' father, however, appears to have gone on living in
the house and admittedly continued to do so untilhe married his third
wife Zeinab in 1915, for although after his second marriage, which took
place shortly after his first wife's death, the plaintiffs' 'fa~er, Used pe-
riodically to visit Omdurman where his second wife lived; he never used,
to be absent from Halfa for more than about 3, months, ,However, the
plain' allege that when their father married his third-wife in 1915 be "
ce ed to live in the house in dispute, but went: and 'lived in his third-:'

    e's house.

In 1910 the plaintiffs allege that they pulled' down. the southein
portion of the house which before that was uninhabitable and rebuilt-
it. After they had completed the rebuilding they allege that at various

periods they let the said southern portion to tenants. The plaintiffs al-
lege they themselves lived in the northern portion continuously until
today, and have occupied the whole house both northern and southern
portions as owners, either themselves, or through tenants from the date
of the alleged gift in 1908 until today. They admit, however, that
when this land was settled in, 1918 their late father-registered this plot
of land in his own name. They now claim that the register be rectified

. and that they be shown in the register as owners in the place of their
late father.

As in the case of the first plot, and as in the other cases I have al-
luded to, all the remaining defendants with the exception of defendants
9, 10 and 11 admit the plaintiffs' claim, and defendants 10 and 11
through their agent defendant 10 Zeinab's father; Dawood Hag Hus-
sein, vigorously oppose the claim. He denies that the plaintiffs' father
gave them this piece of land, and he denies that they rebuilt the south-
ern portion of the house, but alleges that the plaintiffs' father rebuilt

          this southern portion.                                        

As I have already shown, itis no-use the plaintiffs trying to prove
a gift from their father. It seems to me, therefore, that I have the fol-
lowing questions to decide:

(1) Have the plaintiffs been in possession of both the northern
and southern portions of this house for 5 years under a
'just title, and, therefore, are they entitled to the ownership of
the house and its land by acquisitive prescription?

(2) If they have not been thus in possession of both portions of

,the house, have they at least, either themselves, or through
tenants, been in possession of the southern portion of the
house for 5 years under a just title and, therefore, are they
entitled to the ownership of the said southern portion and of
the land upon which it stands?

(3) Did the plaintiffs rebuild the said southern portion, and if so,
in the event of their not being entitled to the ownership of the
said southern portion by acquisitive prescription, what rights
if any, have they with reference to the said southern portion?

As regards (1), I cannot hold that the plaintiffs have been in
legal possession of both portions of the house for the last 5 years. It
appears to me from the evidence produced by both sides that the plain-
tiffs' father, after his marriage to his third wife in 1915, was constantly
in occupation of the northern portion of the house duringthe day time,

and he also sometimes slept there, although it is quite clear that he

        . generally slept in the house of his third' wife.             

Moreover, he admittedly spent the festival days in the house in
dispute. L cannot, therefore, come to the conclusion from these facts
that the plaintiffs' father gave up possession of the house.

Moreover, it seems to me that both the plaintiffs since both of
them were married-and they were each of them married more than 5
years ago-did very much the same as what their father did, that is,
they were constantly in the house during the day time and generally
spent the night in the houses of their respective wives. The persons
who did really stay all the time in the house are the sisters of the plain-
tiffs; and as there is no evidence that those sisters were claiming owner-
ship of the house, it seems to me, even if I held that the plaintiffs'
father had ceased to be actually in possession of the house--which I
do not hold-the plaintiffs' father was in possession through his daugh-
ters. I consequently hold that the plaintiffs cannot claim ownership of
both portions of the house by" acquisitive prescription.

As regards (2), namely the question of plaintiffs' alleged posses-
sion of the southern portion, here, if the plaintiffs had produced clear
evidence that for the last 5 years tenants of this southern portion had
-paid rent to the plaintiffs, I think that they would have considerable
ground for contending that they had acquired the ownership of at least
this southern portion by acquisitive prescription. They have, however,
only produced one tenant, namely Ismail Eff. Kamel, who says he was
tenant of this portion of the house for 15 months from July 1919 to
October 1920, and that he paid the rent to the plaintiff Sherif. There
is no evidence of any other tenant or tenants who 'Can say they were
the plaintiffs' tenants.

I consider, therefore, that in view of the fact that this southern
portion was joined to the northern portion, and the fact that the plain-
tiffs' father, as I have held, continued in possession of the northern por-
tion, the plaintiffs would have to bring very much more cogent evidence
than this that they have been in possession of the southern portion
either themselves or through a tenant throughout 5 years. The plain-
tiffs therefore also fail in their claim to the ownership of this southern
portion by acquisitive prescription.

As regards (3), namely the question whether the plaintiffs rebuilt
this portion of the house, I consider the weight of the evidence is that
the plaintiffs rebuilt this portion of the house. They bring four wit-

nesses who actually had something to do with the building work, and
all these witnesses state they were employed by and paid b_y one or
other of the plaintiffs. The plaintiffs have also produced another wit-
ness, namely Halfawi Salim, who is a co-owner in the sagia and gives
very material evidence that he saw the plaintiffs building the southern
portion, and as co-owner of the sagia he objected and went and com-
plained to plaintiffs' father who was samad of the sam whereupon
the plaintiffs' father would arrange for the witness to have a building
site on another part of the sagia. It appears each co-owner has a right
to build on the sagia, and the samad thereof arranges for the allotment
of the various sites to the co-owners. The witness adds that after that
he noticed the plaintiffs superintending the building of this southern
portion.

The plaintiffs have also produced two witnesses who both give evi-
dence that they heard plaintiffs'· father say that the southern portion
belonged to the plaintiffs.

The opposing defendants, on the other hand, have only produced .
one witness who gives evidence about the southern portion, namely
Mohammed Abdu, who says he built half a metre in height of the walls
of the southern portion, and it was plaintiffs' father who employed him
and paid him. This was a very small portion of the building work; irl
fact the witness admits the walls had been nearly completed before he
began his part of the work.

After carefully considering all the evidence I am of opinion that
the preponderance of weight is on the side of the plaintiffs, and is suf-
ficient to prove that the plaintiffs built this southern portion.

The question now remains as to what rights, if any, the plaintiffs
have over this sou them portion of the house treated as a separate
entity from the rest of the house, and also from the land upon which it
stands.

I went very fully into a similar question in Osman's case (plaintiff
No.2 in this case) case No. 37 of 1921, and I came to the conclusion
that l1y local native custom the ownership of a building can be treated
as a separate right to the ownership of the land upon which it stands,
and I also showed that by a general principle of law common both to
the English and Roman systems a man who constructs a building bona
fide on another man's iand is generally at least entitled to compensation

        for ~at building,

Likewise in 'this case, as the venue is the same as in the other case,
1 hold that by local native custom the plaintiffs are entitled to the own-
ership of this southern portion of the said house apart from the rest of

        . the house, and apart from the land.                                     .

I think this southern portion should be treated quite separately to
the northern portion, for it is really another house and has always
been used as such since it was built. However, as in Osman's case, I
am of opinion that the opposing defendants may claim their proper
proportion of a reasonable rent for the use of fhe land' upon which th~
said southern portion stands.

The result of my findings therefore Is:

(1) The plaintiffs' claim to the ownership of the first mentioned
plot, namely plot (1), block 6 C, and the store thereon, succeeds,
, 'and the register is to be altered accordingly.

(2) The plaintiffs' claim to the ownership of the second plot of
land, namely plot 10, block lA, and to the whole 'Of the house thereon;
fails, and must be dismissed, but as defendants 1,2, 3, 4, 5, 6, 7 and 8
admit the claim, the register should be rectified so as to show that the
plaintiffs are owners not only of their own share in this property by in-
heritance, but also of the shares of the said defendants.

The plaintiffs, however, are entitled to the ownership of the south-
ern portion of the house on this plot, being liable, however, to pay to
the opposing defendants their proper proportions of a reasonable rent
for the use of the land on which the said southern portion stands, and
this decision concerning the said southern portion is to be entered on
the charge part of the register.

As regards costs: The opposing defendants must pay % or the
costs and the plaintiffs ~, for that is about the proportion in which they
have failed with reference to the property in this case.

January 19, 1922. G. W. Williamson,-1.: . The main question to
be decided in these appeals is the question of local custom as to the
rights arising, when a son has erected buildings on. the land of his fao:
ther with his permission, (1) in the land (2) in the building erected on
the land.

I agree with the district judge that there is nothing to show that the
. father made a formal gift of the land to his son in his lifetime. If he
had done so, the gift should have been legalised in the ~ohammedan
Court by an ishad and should have complied with the ~bammedaD

law as to gifts: it .should also have been registered, under the Deeds
Registration Ordinances! and it required the approval of the Governor.

The district judge has held that a' title by prescription has been
obtained by possession for five years as a just title under a deed of gift.
But he has previously held that there was no deed of gift and therefore,
as a question of prescription under Egyptian law as applied in the Su-
dan, fifteen years possession would be required."

The real requirement in these cases appears to me to be a decision
on the local custom of the tenure which is generally referred to as
"hikr."

I interpret the local custom as follows: Permission is granted to
build. on the land of another. It mayor may not be in writing, usually
not. Rent or a share of the rent for the property mayor may not be
paid to the owner of the land. In the case of a stranger rent is some-
times but not always paid. In the case of a son being tenant of the
land of his father, I hold that it is not the custom that the son should
pay rent. The right is a1ienabl~ and inheritable. The land may revert

. to the owner on failure to pay rent or in the event of the buildings
being abandoned or becoming ruinous,

In the case of a son I consider that it is possible for the son as
tenant to obtain a tide by possession to the land provided he remains
in possession for a sufficiently long period. It is a question, for decision
in each case whether it was the intention of the father to abandon .pos-
session of the land to his son. I do not consider that the Egyptian law
of prescription need be applied as it is inconsistent with the custom.

The principle must be applied in each case and if the court is satis-
fied that the son erected the buildings with the consent of the father
and has been in possession for such a period that it may be reasonably
presumed that the father consented to his son permanently occupying
the land in conjunction with the buildings, I think the son establishes his
claim to the land and is entitled to rectification of the register.

It is true that the father registered everything in his own name,
but I consider that his reason for this was that, being head of the family,

1 There were Deeds Registration Ordinances of '1907, 1908 and 1920. All
were repealed in 1925.

• Editor's note: Reference is to section 76 of the Egypfian Native Civil
Code.

he wished to keep control over the property and did not wish to make
any formal division. His action was in accordance with local custom.

I consider that my interpretation of the custom produces a satis-
factory result by reason of the fact that it finally disposes of a right in\
land which is of no practical valueto the owner, being a bare reversion'
to -Iand subject to no rent.

As the question may arise whether the approval of the Governor I
isrequired to the transfer into the name of the successful parties, ~
being a disposition within the meaning of the proclaniations relafulg
to the disposal of native land, I propose to refer the matter to the Gov-
ernor and he has expressed his consent to granting the necessary
approval.

As to costs, Dawood Hag Hussein says that he appealed\in respect
of the order as to costs. I can find no such appeal and he did not r~ ,
the question at the hearing. As to costs of the appeal, the appellants
will be entitled to costs in the cases in which they have succeeded in
their appeals.

Applying the principles of my judgement on the general question
of custom in this case, I consider that the judgement of the district
judge should be confirmed. I accept his finding that the store was built
by the sons, Sherif and Osman Dawood, and consider that the period of
occupation by them is sufficient to give them a title. to the land.

As to plot No. 10, block 1 A, Dabarcssa village, the result of ap-
peal is as follows:

Subject to the question as to the meaning of the division of the
property into the southern part and northern part, this is referred to

        the district judge to decide.                                 .

As to the southern portion, I consider that the decision of the dis-
trict judge that the plaintiffs built this portion should be confirmed.

With regard to the claim to the land upon which the buildings are
erected, I consider that on the evidence regarding the date at which the
buildings were erected the period of occupation is sufficient to give
them a title to the land. The decree of the district judge will be al-
tered so that the claim to the ownership of the land upon which the
buildings are erected succeeds" and the register will be altered
accordingly.