Case No.:

AC-RE V-26 3-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription—” Possession “—Prescription and Limitation Ordinance, 1928, s. 3— Receipt of rents may amount to possession of land

·  Prescription—” Possession “—Prescription and Limitation Ordinance. 1928. s. 3— Ownership of undivided share may be acquired by receipt of like share of rents for prescriptive period

Plaintiffs were co-owners in undivided shares with defendants of the land in dispute. Although plaintiffs’ share was less than two-thirds, they have received two-thirds of the profits from the land for the prescriptive period, and therefore claim a two-thirds share by prescription. The Court of Appeal found the relationship of defendants to plaintiffs as heirs of plaintiffs’ deceased brother precluded adversity under Prescription and Limitation Ordinance. 1928. S. 4 (i).
Obiter dictum: (i) Receipt of rents or profits from the land may amount to possession of it within the meaning of Prescription and Limitation Ordinance, 1928. s. 3.

(ii) Ownership of an undivided share in land can be acquired by peaceable, public and uninterrupted receipt of a like share of its rents and profits for the prescriptive period.

Judgment

(COURT OF APPEAL) *

AC-RE V-26 3-1961

SALIH AND ALL TAHA v. HEIRS OF MOHAMED SAUL TAHA

Babiker Awadalla J. (by authority of the Chief Justice). November 1, 1961: —This application, having been referred to me for disposal under Civil Justice Ordinance, s. 176, is hereby summarily dismissed.

But although I agree with the conclusion of His Honour the Province Judge, yet I regret I am unable to find myself in agreement with him as to the reasons for that conclusion.

Plaintiffs-applicant are co-owners of the land in dispute and they claim that although the land registered in their names undividedly with the defendants-respondent is far less than two-thirds of the whole, yet they have been in receipt of two-thirds of the profits of the whole land for the prescriptive period and as such they are entitled to rectification of the register so as to give them an amount in the land equal to their share in the profits.

Purporting to rely on Heirs of Hassan Fad! El Mula v. 1-feirs of Zeinab Fad! El Mula, AC-REV-r46-i (19c S.L.J.R. 90, His Honour the Province

Judge says:

In claims of acquisitive prescription the law requires that the claimant should prove not only that he used to receive a certain share of the produce, but should prove in the first place that he was in

possession of an ascertained area of land adversely, i.e., to the exclusion of others as a matter of right during the statutory period.”

1 does not think the case cited by His Honour the Province Judge is relevant at all. That case was not one of receipt of rents or profits but it was a claim based on physical possession. The “share” which the Honourable Chief Justice meant in he statement quoted by His Honour the Province Judge is the share in the land and not in its receipt of rents or profits. Prescription a Limitation Ordinance, 1928, s. 4 (i), is very clear on the point in assimilating physical possession to receipt of rents or profits. This is even supported by decisions of this court. In Fatma Bint Abdulla Mohamed and another v. Heirs of Mohamed Ali Freigoun, AC-APP- 8-1933, it was said: ‘ Receipt of the rents and profits of land may amount to the possession of it, and if such possession is peaceable, public and uninterrupted for a period of 10 years the possessor may acquire its owner ship. The word ‘land’ in the Prescription and Limitation Ordinance, 1928, includes any interest in land, and it follows therefore that the owner ship of an undivided share in it can be acquired by the peaceab1e’ public and uninterrupted receipt of a like share in its rents and profits for the same period of to years.”

That being the case, the opinion of His Honour the Province Judge that Prescription and Limitation Ordinance, s. 4 (3), is not applicable because it presupposes physical possession is not’ sound. I think that Prescription and Limitation Ordinance, s. 4 (3), does apply and if the claim of applicants is based on prescription simpliciter, which no doubt it is, then surely their relation with the heirs of their deceased brother prevents their possession from being adverse. I give no weight whatsoever to the contention of applicants that the land originally belonged to their maternal grandfather and was registered in the name of their elder brother despite the fact that their mother was alive. I find such a contention irreconcilable with the conduct of their mother herself who was alive in 1920 when her son (the father of respondents) died and, according to the 11am issued in the estate, was present when his estate was administered and got her one-sixth share in that estate without in any way suggesting that the whole land belonged to her.

Contentions of this sort are usually made in order to give a touch of righteousness to a claim based on prescription.

• Court; B. Awadlla J.