Case No.:

HC-REV.3o1-1959

Court:

The High Court

Issue No.:

1961

Principles

·  Land Law—Prescription—Rights being acquired by adverse possession run with the land

Obiter dictum: The change of the registered proprietors during the period of the continuity of adverse possession by the claimant does not affect claimant’s rights, since rights in the course of being acquired by prescription run with the land pursuant to Land Settlement and Registration Ordinance, s. 27 (1)

Judgment

(HIGH COURT)

EL TAYEB ABDALLA ADAM v. EL NAIEM IBRAI-HM AND ANOTHER

HC-REV.3o1-1959

.

Advocates: Ahmed Gumaa …….. for the defendont-applicant

                      Fawzi El Tom Mansour …….. for the plaintiff-respondent

O. El Tayeb, Province Judge, Khartoum Circuit. August 20. 1960 — This  is the third revision in this case. I shall not refer to the previous two. Because   there  is nothing useful to be taken from them, The case is about a plot . town  land in Omdurman; I shall start by looking into its history.

It was a plot known as Hosh No. 4-2-936 comprising 181 square metres or thereabouts. It was leasehold, leased by the Government to a certain Mirsal Mohamed Zein for a term of 20 years from March I, 1917. Mirsal died, his heirs were ascertained by 11am No. 137-192 I of Omdurman Sharia Court, and the leasehold plot was registered in 1930 Ifl the names of the heirs as follows:

1. Tamzeino B. Abbakar                                      as to 1/24th share

2 . Kaltom B. Adam                                                    "  1/24th      "

. 3Mahdia B. El Ashghar                                           "  1/24th      "

. 4Fatma B. Mursal Abu Kamis                                "  1/24th   shares

As the 20 years’ lease expired by 1937 the Government, the landlord. granted the said person an annual tenancy or yearly lease, determinable by three months’ notice in writing by either party.

It appears that by 1953 or 1954 the first three above leaseholders (Tamzeino. Kaltom and Mahdia) had died, and the fourth leaseholder (Fatma) stirred the question of this plot.

It can be seen that Fatma was the registered leaseholder as to 7/8th  of the whole interest in the plot. It transpired that the Government deter mined the tenancy. that was effected by a deed of surrender of the lease. executed by the leaseholders, Fatma for herself and the Kadi Omdurrnan for others. So by deed No. 578—55 the lease was struck off the register. The plot was left in the name of the Government as owner to dispose of it in the way it thought fit.

The plot is subminimum, and so the disposal of it has to be to one of the adjoining owners. Plaintiffs are the owners of Plot No. 4-2-777. The Government sold the plot to them and it was added to their plot as freehold, and the number of that plot was deleted from, the register. The said sale to plaintiffs was registered on March 24, 1956.

Defendant is a person who has been in occupation of the plot in dispute since 1942, and he is still in occupation.

By this case plaintiffs sought to recover from defendant arrears of rent and possession. Defendant resisted the claim and counterclaimed for a declaration of prescriptive title to that plot.

The learned District Judge dismissed the counterclaim and ordered payment of arrears of rent and recovery of possession. Hence came this revision, which is mainly on the question of prescription, that I shall deal with.

The law applicable is clear. A purchaser or transferee of land holds it subject to any liabilities, rights or interest that may be for the time being subsisting or capable of taking effect in reference thereto without notification in register. and these include the right in the course of being acquired by prescription. Land Settlement and Registration Ordinance. s. 27 (f). The

right of prescription to land can be acquired by successive owners. It is a right that touches and concerns the land. It starts to accrue from the date of the start of adverse possession, and it is substantiated by completion of the prescriptive period. The change of the registered proprietors during the period of the continuity of adverse possession by the claimant does not affect his right. It is important to emphasise in connection with this case that adverse possession must be one that the law recognises to be acquisitive of title to land. The law by Prescription and Limitation Ordinance, s. 6 (a), does not recognise the acquisitive effect of adverse possession on land registered in the name of the Government.

The plot in dispute was registered in the name of the Government long before defenddnt started to occupy it. The Government transferred the title in it to plaintiffs in 1956. In this same year plaintiffs brought this case. The possession of defendant before 1956 was possession of land registered n the name of the Government, which does not enure to the benefit of defendant to give him prescriptive right or title.

Can defendant acquire prescriptive right to the leasehold interest that was registered in the names of the lessees of the Government and also the buildings on the plot? I should not answer this question because it is not forming part of this case.

The revision is dismissed with costs.