(COURT OF APPEAL) Heirs of HASSAN MOHD. AHMED FADLALLA …………. Applicants and Heirs of AHMED FADLALLA …………. Respondents (AC-REV.4-1956) Revision Principles · Prescription outside the Ordinance — possession between relatives — S. 4 (3) of the Ordinance excluded — adverse possession proved for considerably long period — grant presumed. In an action between co-heirs for rectification of the register the plaintiffs alleged (a) that the said share was sold by the defendants predecessor in title to their (plaintiff’s) predecessor and (b) on prescription based on adverse possession for 47 years. No sale was proved before the Province Judge who decided that the relationship of the parties was such that under S. 4 (3) of the Prescription & Limitation Ordinance 1928 their possession should be deemed to have been the possession of the defendants. Held: that where actual possession has been proved for a reasonable length of time the Court has to presume that possession originated in an actual grant from the original owner and S. 4 (3) of the Prescription and Limitation Ordinance does not apply.** Decree’ of Province Judge revised. Judgment The facts are fully stated in the judgment of Abu Rannat, C.J. Advocates: Ahmed Gumaa ………………for Applicants Henry Riad ……………………………..for Respondents Abu Rannat, C.J. The fact of this case are short and simple. Share No. 3 of Sagia No.14 El Figeiga comprising 10 oods arc registered in the names of the Heirs of AHMED FADLALLA by decision of the Land Settlement in 1906. (*) Court M.A. Abu Rannat, C.J. and R.C. Soni, J. (* *) Section 4 (3) When from the relationship of the parties or from other special cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the possession of that other. The Applicants are the Heirs of Mohd. Ahmed Fadlalla. The present registered owner is their grandfather. It is admitted that the Applicants have been in possession of these 10 oods since 1906. The Respondents are part of the Heirs of AHMED FAL)LALLA. ‘They are in fact the sons and daughters of ZEINAB AHMED FADLALLA ZEINAB and MOHAMED are brothers. The Applicants applied for the rectification of the register in respect of these 10 oods. They based their claim a sale by a certain ALI FADLALLA to their father MOHD. AHMED FADLALLA, and on the acquisition of a prescriptive title, through long and continuous possession. The Court found that no sale to MOHD AHMED FADLALLA was proved, and decided that from the relationship between the parties, the Applicants were in possession of these 10 oods on behalf of the other Heirs of AHMED FADLALLA (Section 34. Sub-Section 3 of the Prescription & Limitation Ordinance 1928). It is admitted that the Applicants have been in possession of these 10 oods for 47 years, before this action was brought. The possession from 1906 until 1932 was by MOHD AHMED FADLALLA. In 1932 MOHD AHMED FADLALLA died and his sons followed him in possession. This in law amounts to continuous and uninterrupted possession by successive owners. This right which is claimed on the ground of its continuous and uninterrupted exercise for a length of time need not have been exercised by the same person throughout its whole length. The learned Judge found that as a deed of sale to the Applicants or their predecessors in title was not proved the possession by the Applicants was permissible. With respect to the learned Judge, this is an erroneous view of the law. This leads us to the fiction of the lost modern grant. After actual possession of land has been shown for a reasonable length of time, the Court has to presume that an actual grant was made after the time when the possession began, but that the deed of sale has been lost. I have to refer in this respect to the Judgment of Cockburn C.J. in Bryant v. Foot [1867] 2 Q.B. pages 161 & 181. He said : Juries were first told that from user during living memory or during twenty years, they might presume a lost grant or deed, (and here the courts did act by analogy to the Limitation Act 21 James 1); next they were recommended to “make such presumption; and lastly at the final consummation of judicial legislation, it was held that a jury should be told not only that they might but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury nor anyone else had the shadow of a belief that any such instrument had ever really existed. In this case the Respondents were present all this long time in the same village where the land is situated. They failed either to retake physical possession or raise a civil suit in the Courts to claim their rights. This proves that the Respondents had knowledge of the acts by the Applicants and that they had a power to stop the acts or to sue in respect of them, and there was an abstinence on their part from the exercise of such power. These facts show that the possession by the Applicants was of right and I cannot imagine a stronger case of adverse possession than in this case. Therefore, this application must be allowed and decree setting aside the decree of the Province Judge be issued, and a declaration that the Applicants are entitled to the 10 ooJ. — I concur. (Judgment revised)