(COURT OF APPEAL)*

Heirs of MOHAMMED KHEIR BEIRAM ….Applicants

and

Heirs of MAHMOUD MOHD. EL NAGAR & Other…... Respondents

(AC-REV 185-1956)

Revision

Principles

·  Prescription meaning of interruption of possession-nothing is to be deemed interruption unless submitted to or acquiesced in by claimant-payment of rent by owner evidence of adverse possession

In an action by plaintiffs for rectification of the register of 4 keirats in sagia 28 Kabatout, based on prescription it was admitted that the defendants (the registered owners) cultivated the land for some months during the statutory period but paid rent thereof to plaintiffs the District Judge found for defendants on grounds of interruption of possession and judgment affirmed by the Province Judge.
Held: that nothing is to be deemed a statutory interruption unless it has been submitted to or acquiesced in by the plaintiffs.
The Decree of the ‘Province Judge revised.
 

Judgment

The facts of the case arc fully set out in the judgment of M.A. Abu Rannat C.J.

(*) Court : M.A. Abu Rannat, C.J. and RC. Soni, 3,

Advocate Fawzi el Tom            …………………for Applicant

One of Respond Heirs in Person

M.A. Abu Rannat, C.J.: This is an application for revision against the decision of the Province judge, Northern Province dated 10.12.1956, affirming the decree of the District, Judge, Dongola dated 8.7.1956, by which he dismissed the claim of Plaintiffs for a declaration that they are the owners of 4 kerats in Sagia No. 28 Kabtout Village by long possession.

The facts are these : -

4 kerats, being part of Sagia No. 28 Kabatout, were registered in the name of Sakina Mohd. Abdel Fattah. On the death ofSakina the land was inherited by her husband Mahmoud Mohd. El Nagar and her son Mohd. Mahmoud Mohd. Nagar.

Both these men died and the 4 kerats were inherited by the present Defendants. Since the departure of Sakina to Egypt in 1915, neither she nor her husband returned to the Sudan. Her son was born in Egypt and he never saw the Sudan.

The Plaintifis claim that they have been in- continuous possession of these 4 kerats for a period of 30 years. They state thatSakina left the Sudan for Egypt in 1915, and that since her departure to Egypt the Plaintiffs’ predecessor-in-title has been cultivating the 4 kerats an watering them by a Sagia wheel until his death in 1951, and after his death his son Hussein continued to cultivate until the winter of 1954.

The Defendants admit possession during this long period, but they contend that during this long period, rent (ardia) was being paid by the Plaintiff’s predecessor-in-title to the mother of the present Defendants, Amna Ibrahim Abdel Fattah. They also claim that they cultivated for 5 months,. beginning in October 1954 and ending in the beginning of April 1955, and that their entrance constituted in within the Prescription & Limitation Ordinance.

As to payment of rent by the Plaintiffs to the Defendants the record did not show conclusively that such a payment was made. The learned District Judge referred in his judgment to the evidence of PW. 2 Sheikh Abdel Rahim Mohd. Ahmed. I have carefully read the evidence of this witness. Although this witness s said at p. 14 of the record that he knows that all co-owners, including Defendants, used to pay to Plaintiffs’ predecessor-in-title water rates he stated on p.15 that he did not know whether Defendants used to receive ardia from Plaintiffs or their father.

This is an important piece of evidence in PW.2’s evidence. Ardia is rent, but the water rate is not.

The District Judge also referred to the evidence of PW.5 on p. 19. This witness stated that he heard from Plaintiff after their father’s death that they were paying ardia to Defendants; but when he was cross-examined by one of the Defendants, Hussein Mohd. Kheir, he stated that Hussein did not tell him that he was paying ardia to Defendants.

It is important to note that Hussein was the only Plaintiff who was cultivating the land after his father’s death. At the same time this witness did not mention the name of any other Plaintiff who said that he was paying ardia. This is most unreliable, piece of evidence on which no court of law will place confidence.

As ‘regards entrance by Defendants and their cultivation in the ‘Shitwi’, this is admitted by Plaintiffs, but they allege that they received rent from Defendants in respect of that cultivation. However, such entry by the Defendants does not constitute interruption within S.4 (6) of the Prescription & Limitation Ordinance. Nothing  is to be deemed a statutory interruption unless it has been submitted to or acquiesced in by the Plaintiffs. There is no evidence before us to show that there was submission or acquiescence. In England the interruption must be at least for one year. In the Sudan we have not got such an express provision in. the statute. The fact that the Plaintiffs instituted legal proceedings in October 1955 i.e. immediately after the vacation was over shows that there was no submission to or acquiescence in on their part. As to institution of the suit it follows that the. Plaintiff were entitled to claim that they have been in possession for 30 years before the action was brought by them..

In my view the Plaintiffs proved a prescriptive title in respect of the 4 kerats.

This Court, therefore, declares that they are entitled to these kerats and the land register should be rectified accordingly.

No order is made as to costs.

R.C. Soni, J. — I concur

                                                             (Revision allowed)