Case No.:

(AC-Revision-237)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Land settlement and registration—Rectification of register for mnzke—Prescription, whether plaint discloses cause of action for.

By a petition to District Judge, Merowe, applicants claimed a parcel of land in Sagia 65El Saggai, registered in respondent’s name. The plaint was rejected as having disclosed no cause of action, on the ground that if the claim was for Rectification of the register for mistake in the creation of the Sagia, that was defeated by lapse of time; and if the claim was based on piescription it could not be maintained since plaintiffs, as disclosed by their petition. were only in possession since 1952, and they brought the action in 1959.
The Province Judge. El Darner summarily dismissed an application against the District Judge’s order rejecting the plaint. On application for revision
Held: (i) that the District Judge was right in rejecting the plaint, in so far as it was based on mistake in the creation of the Sagia as out of time. The contention that there was fraud within the meaning of section it with regard to the creation of the Sagia was untenable. That section does not make fraud a cause of action but only treats it as an element in preventing the plaintiff from knoss ing that he had a cause of action and plaintiff in his petition admitted his knowledge of the inclusion of the parcel in dispute in the newly created Sagia.
(ii) That the District Judge was wrong in rejecting the claim by prescription on plaints. He seemed to have considered 1952 as the beginning of possession while it was clear that the allegation was that prior to that year plaintiffs were in possession for a considerable time through agents.
.

Judgment

(COURT OF APPEAL)

EL SAMMANI ABDEL GADIR. AND ANOThER V. EL SAYED AL! EL MIRGHANI

(AC-Revision-237)

Revision

Advocates: M. Zarroug………. for applicanc.

                   M. Ziada…………..for respondent

April 14. 1960. B.Awadalla J.: —This is an application against the decision of His Honour the Province Judge, El Darner, dismissing summarily an application against the decision of the learned District Judge, Merowe, rejecting a plaint by applicants concerning a parcel of land claimed by them in Sagia 65 El Saggai registered in the name of the respondent.

The facts of the claim as presented before us appear to be as follows:

Applicants, El Samn’tani Abdel Gadir and Warrag Abdel Gadir, are brothers owning together 47sahms of land in Sagia 43 El Wararig, Merowe District, which land came down to them by inheritance from their father who died in 1913. It appears that both applicants were away in the service of the Egyptian Government from about the time of the death of their father until 1952 when they came back home on retirement on pension. During all this time they invariably spent their annual leaves at their home in Merowe. During their absence, the land was managed on their behalf by agents, but they took over personal possession on retirement in I952. In their present claim they contend that unknown to them a parcel of their above-mentioned share in Sagia 43 was sliced away and added to respondent’s Sagia No. 65 El Saggai. El Sammani contends that sometime in 19.48 while on annual leave it came to his knowledge for the first time, from rumours prevalent in the locality, that part of his land was taken away and given to respondent. He accordingly consulted the register and could naturally find no ‘indication as to what exactly had happened, because, under the fractional system of registration, a change in the extent of the actual holding on the land does not necessarily entai] corresponding change in the register.

In 1958, i.e., about six years after applicants took over personal possesion, the respondent for the first time asserted a title to the land in d and, being obstructed by applicants, lodged a complaint to the B Court and El Sammani was sentenced to £S.5 fine. This findin subsequently quashed by the Main Court on appeal and the decision Main Court was confirmed by the resident magistrate. It was only this incident that the exact position of applicants in so far as thei] was concerned was brought home to them. The result was the petit the learned District Judge, Merowe, before whom applicants appear January 13, 1959. It is not clear from the petition what the exact of action is, but we agree with the learned District Judge’s conci that it might have been the rectification of Sagia 65 by deletion therefr the land in dispute on the ground of mistake or alternatively of pr tion. It is pertinent here to mention that no certificate of searc sketch map showing the ownership and extent of the land in disput ordered to be produced by the District Judge, who, without any exa tion of applicants, proceeded on a long errand to consider how Sa was created and then dismissed the petition on the ground that in so far as it is barred by lapse of time, the claim by prescription could r maintained because applicants were in possession only since 1952.

Petitioners applied to His Honour the Province Judge who affirmed decision of the District Judge.

As regards the question of “mistake” we have no doubt that the le District Judge was right in rejecting the plaint for lapse of time. The learned advocate for applicants sought to bring the case within the of section 11 by contending that the creation of Sagia 65 was a fra all the donors, but section 11 does not speak of fraud as a cause of a but only as an element in preventing the plaintiff from knowing ti had a cause of action. El Sammani admits in his petition to the Ic District Judge that he had heard of the wrongful inclusion of his his land 12 Sagia 65 as far back as 1948, and in any case we Cannot see how an rence like the creation of this Sagia could fail to be a matter of cor knowledge in the locality. The facts are that this Sagia was created 1933 by donations from the religious followers of the respondent wh assume, form a considerable majority of the holders and was ma constitute an abnormal longitudinal belt traversing the’ riverain ho from one end of the locality to the other and hence was locally kno “el Urada.” Further, the learned advocate has no answer to the qu to whom is he trying to impute the fraud on which his contention is 1 Section ii speaks of the fraud of the person claiming the benefit Ordinance and not just fraud in the air

We now come to the second part of applicants’ claim, viz., “prescrip -tion.” Applicants contend that they had never given up possession of the land claimed and that even during their absence in Egypt the land was managed on their behalf by their agents. Without any examination of petitioners as to their possession prior to 1952, the learned District Judge considered that their possession did not go beyond that year and so dismissed the claim on the ground that it disclosed no cause of action by prescription. We think that this rejection of the plaint was wrong and that if petitioners were properly examined on their petition it would have been found that they contend that their possession went back considerably longer than the prescribed period. The year 1952 in their contention simply forms a landmark, separating vicarious from personal possession. This application is therefore allowed in so far as it concerns the rejection on plaint of the claim by prescription and the court below is hereby directed to accept the petitipn on that ground with a view to a hearing. Before accepting the petition, petitioners must be called upon to produce a survey sketch of the land in dispute as well as a Certificate of Search of the Sagia in which the land claimed is now included according to the sketch.

It is further ordered that the costs of this application as well as of the application to His Honour the Province Judge (including advocates’ costs) should follow the event.

A. M. Imam J.: —I concur.