Landlord and Tenant-Termination of tenancy-s-Rents not paid-Ownership
rights exercised by renant=-Commencement of prescriptive period

Prescription-Purchaser of registered title-Takes title subject to existing pre-
scriptive claims

Prescription-Time within which claim for rectification of tire register must be
made-Whether subject 10 10 year period of limitation

1. Where a tenant does not pay rents, and exercises other incidents of
ownership, there comes a time when the relationship of landlord and tenant
is terminated and prescription begins to run against the landlord.

2. A claim for rectification of the register under section 85 of the Land
Settlement and Registration Ordinance 1925 which has matured after 10
years of possession, is not a claim in respect of land which must be
brought within 10 years from the maturing of the claim. The register may
be rectified at any time. The longer the possession the better the title.

3. The proviso to section 85 of the Land Settlement and Registration
Ordinance 1925. protecting purchasers for value not a party to a fraud or
mistake regarding the register, has no application to subsection (c) pro-
viding for rectification of the register in favor of persons who have acquired
title by prescription.

Land Settlement and Registration Ordinance 1925, s. 85.

Prescription and Limitation Ordinance 1928, 55. 3, 4 (4), Schedule III.

Appeal

July 11, 1938, Creed C.J.: The facts of this case are briefly
these. Jovan Solakian, the respondent, was the registered owner of
plot 648 in Omdurman. On December 8, 191~, a petition was pre-
sented to the Land Registry for the registration of a sale of this plot
by the respondent to Musa Aslanian, and on the same day a document
was made between these two parties in the following terms:

"1 the undersigned under my signature Musa Aslanian, mer-
chant of Khartoum, have conducted the "purcbase of the two houses
belonging to Mr. Jovan Cholakian No. 648 and No. 484 situated
in Ruba three, Hara four Omdurman . . . the area of each of
them being 280 metres and 150 metres as shown on the maps,
for the sum of £E.220-two hundred and twenty pounds Egyp-

• Court: Creed, C.J., San des 1. and Evans. R.G.L.

tian, and they have been registered in my name in the Office of
the Legna as per sale documents under my signature. Mr. Jovan
Cholakian has the right to dwell in the two mentioned houses by
way of rent and pay for each month PT.220--two hundred and
twenty piastres to us; and whenever he wants to pay the sum of
the two hundred and twenty pounds Egyptian to us, price of the
said two houses, we shall have no right to refuse to receive the
amount from him and deliver to him his said houses. This has
been written to be admitted and to act according to it when neces-
ary."

The sale was registered by the Land Registry on December 9,
1913. The respondent remained in possession of the property in ac-
cordance with the written agreement of December 8, 1913, but at no
time has he paid any rent whatsoever either to Musa or to any other
person. No clear reason has been proved for Musa's failure to collect
rent, though it was suggested by the appellant at the trial that the
reason was generosity, owing to the fact that for some time the re-
spondent's aged parents were living in the house. In 1921 it appears
that the respondent went to live at Geili and let the property to tenants,
who paid him rent. Still no rent whatever was paid by the respondent
to Musa. In Mayor June 1937 Musa enquired at the Land Registry
if the property was still registered in his name, and on finding that it
was so registered, arranged to sell it by registered deed to his brother,
Yacoub Aslanian, the present appellant. Yacoub on becoming
registered as proprietor, gave clear indications that he intended to
attempt to exercise the rights of ownership. The respondent then in-
stituted a suit claiming a declaration that, under section 3 of the Pre-
scription and Limitation Ordinance, he had acquired the ownership
of the property by peaceable public and uninterrupted possession for
a period exceeding the statutory ten years, and a consequential order
for rectification of the register.

Several points of interest and importance have been taken before
this court by the advocate for the appellant. He states that the re-
spondent is not a usufructuary, but alleges that having been a tenant
the respondent cannot in the circumstances of this case at any time
even begin to acquire ownership. Secondly, he states that the period
must begin from 1913, that the period of ten years was completed in
1923 and that the respondent cannot after a lapse of a further fourteen
years claim rectification of the register, as his right of action was barred
in 1923 under Schedule III of the Prescription and Limitation Ordi-

nance. Thirdly, the advocate for the appellant alleges that the appel-
lant is a bona fide purchaser for value, and that under the proviso to
section 85 of the Land Settlement and Registration Ordinance the regis-
ter cannot be rectified against him.

It will be convenient to deal with these three points one by one.
1. It appears to me that a good deal might be said for the view
that the true relationship of the respondent and Musa in 1913 was
that of mortgagor and mortgagee, whatever the actual form of the
transaction might have been, but neither party wishes to take tbe point
and both parties here and below have taken it for granted that the
transaction of 1913 was a sale, and that the respondent remained in
possession as tenant of Musa Aslanian. Section 4(4) is not altogether
happily drafted, but it seems to me ridiculous to hold that the relation-
ship of landlord and tenant has never lapsed between Musa Aslanian,
and subsequently the present registered proprietor, on the one hand,
and the respondent on the other hand, although no rent has been
paid since 1913. A timemust come when that relationship lapses and
a termination of the tenancy is presumed. How is it possible to say,
for example, that the respondent was still the tenant of Musa in the
year 1924, having regard to the fact that Musa had received no rent
for more than ten years, and especially to the fact that the respondent
had openly let the property to others and received the rent? Is it
reasonable to say that the respondent's possession was then merely that
of a tenant or of a licensee? To me such a proposition appears farcical.
The respondent was openly exercising full rights of ownership and his
possession was adverse to Musa's title.

2. I am unable to accept the suggestion that a claim for a declara-
tion of ownership under section 3 of the Prescription and Limitation
Ordinance and a consequential order for rectification of the register
cannot be brought when more than twenty years have elapsed since
the entry into possession, or more than ten years since the completion
of the statutory ten years of possession. Two absurdities arise if this
view is accepted. First, whereas a possessor can obtain rectification of
the register between ten and twenty years [rom his first occupation, he
cannot obtain rectification of the register after fifty years of occupation.
It must surely be accepted as an elementary principle of law and com-
mon sense that the longer the possession, the better the title. To hold
the view put forward by the advocate for the appellant is to give rise
to the ridiculous position, illustrated in this case, in which the respondent
bases his claim on possession from 1921 and the appellant, in order