(COURT OF APPEAL)

HEIRS OF IMAM MOHAMED V. HEIRS OF

MOHAMED HUSSEIN ABDALLA

AC.APP. I 6-1959

 Principles

·  Land Settlement and Registration—Rectification—Unofficial “register” has no legal effect- -Court cannot order rectification

·  Prescription—Unofficial “register” cannot be rectified

·  Land Law—Declaration of rights—Assignee induced to remain on land and build— Court may declare assignee’s rights

·  Equity—Declaration of rights in land—Court may declare assignee’s rights where he relied to his detriment on validity of assignment

Appellant brought this action for rectification of the register of a plot of land, on grounds of assignment of his assignor’s tenancy from the Government and prescripton. against the heirs of the assignor. The assignor had induced appellant to remain on the land and to erect buildings thereon. There was no official register of the land, but appellant sought rectification of an unofficial “register” kept at the local merkaz.
On appeal from the Province Judge’s dismissal on the grounds that appellant was a usufructuary and therefore could not prescribe,
Held: (i) Appellant held a real interest in land, and therefore was not a mere usufructuary;
(ii) there could be no order for rectification of a “register” that is not an official one under the Land Settlement and Registration Ordinance 1928, since such an unofficial document is without legal effect;
(iii) an assignee of an interest in land who has relied to his detriment on the expectation that the assignment is legally valid is entitled to a declaration of his rights, and such a decree may issue under the court’s equity power.

Appellant brought this action for rectification of the register of a plot of land, on grounds of assignment of his assignor’s tenancy from the Government and prescripton. against the heirs of the assignor. The assignor had induced appellant to remain on the land and to erect buildings thereon. There was no official register of the land, but appellant sought rectification of an unofficial “register” kept at the local merkaz.
On appeal from the Province Judge’s dismissal on the grounds that appellant was a usufructuary and therefore could not prescribe,
Held: (i) Appellant held a real interest in land, and therefore was not a mere usufructuary;
(ii) there could be no order for rectification of a “register” that is not an official one under the Land Settlement and Registration Ordinance 1928, since such an unofficial document is without legal effect;
(iii) an assignee of an interest in land who has relied to his detriment on the expectation that the assignment is legally valid is entitled to a declaration of his rights, and such a decree may issue under the court’s equity power.

Appellant brought this action for rectification of the register of a plot of land, on grounds of assignment of his assignor’s tenancy from the Government and prescripton. against the heirs of the assignor. The assignor had induced appellant to remain on the land and to erect buildings thereon. There was no official register of the land, but appellant sought rectification of an unofficial “register” kept at the local merkaz.
On appeal from the Province Judge’s dismissal on the grounds that appellant was a usufructuary and therefore could not prescribe,
Held: (i) Appellant held a real interest in land, and therefore was not a mere usufructuary;
(ii) there could be no order for rectification of a “register” that is not an official one under the Land Settlement and Registration Ordinance 1928, since such an unofficial document is without legal effect;
(iii) an assignee of an interest in land who has relied to his detriment on the expectation that the assignment is legally valid is entitled to a declaration of his rights, and such a decree may issue under the court’s equity power.

Appellant brought this action for rectification of the register of a plot of land, on grounds of assignment of his assignor’s tenancy from the Government and prescripton. against the heirs of the assignor. The assignor had induced appellant to remain on the land and to erect buildings thereon. There was no official register of the land, but appellant sought rectification of an unofficial “register” kept at the local merkaz.
On appeal from the Province Judge’s dismissal on the grounds that appellant was a usufructuary and therefore could not prescribe,
Held: (i) Appellant held a real interest in land, and therefore was not a mere usufructuary;
(ii) there could be no order for rectification of a “register” that is not an official one under the Land Settlement and Registration Ordinance 1928, since such an unofficial document is without legal effect;
(iii) an assignee of an interest in land who has relied to his detriment on the expectation that the assignment is legally valid is entitled to a declaration of his rights, and such a decree may issue under the court’s equity power.

Judgment

Advocates: Hassan Lasheen for Bakri Abdel Hadi …..for appellant

 Amin El Taher El Shibli for MamouN Sinada

……………for respondent

Babiker Awadalla J. November 1, 1960 :— is an appeal against the decision of His Honour the Province Judge in PC-CS-76-1952 (Port Sudan). The facts of the case are clearly set out in the judgment and we see no reason to restate them here.

We entirely agree with His Honour the Province Judge that this is not a case where a prescriptive right can be established, but we differ from him for the reasons for such a conclusion. He says that appellant is a usufructuary, and cannot prescribe; but with great respect to his opinion we think that His Honour the Province Judge is wrong in deciding that appellant was a usufructuary, because he is not claiming any title to land but simply a title to the lease or other temporary interest held by his grantor.

Appellant is in fact claiming an interest, about the extent of which there is no evidence, and a remedy, about the grant of which there is no law. He claims rectification of the “register” by substituting his name for that of the original holder. But what is the interest that the original holder had? There is no evidence concerning that save the letter by District Commissioner, Tokar, which simply says that the land is held from the Government at an annual hire of £S.0.802m/ms. His Honour the Province Judge concluded from this that the land is held on annual tenancy. That may be so, but what are the terms of that tenancy? Could the tenant, for example, have assigned any interest in the plot without the consent of the lessor, i.e., the Government? And what is this “register” mentioned in the District Commissioner’s letter? Apparently it is just a private document kept by the Merkaz authorities for their own convenience. Can the courts therefore entertain a claim to rectify it? Clearly not, for as the register does not derive its existence from any provision of law entitling the court to interfere with it, then for all intents and purposes it is non-existent. A court cannot order the rectification of a document, the keeper of which is under no obligation to preserve it.

Nonetheless, we are conscious that appellant has a right to whatever interest the grantor intended to confer upon him. It is an interest which is good, not against the lessor, i.e., the Government, but against the lessee and his successors in title. The appellant was persuaded by the grantor to alter his position to his detriment by building upon the land and staying there for a considerably long time. He is therefore entitled to be protected by ensuring that what he had been made to expect shall come to pass. This is a court of equity, and equity always looked to that as done which ought to have been done. From us, therefore, appellant is entitled to a declaration that he is entitled to remain on the land held by him for so long as the Government would have been bound to allow his grantor to remain. Appellant may think fit to produce the version of such a declaration to the Merkaz authorities for such action as they may think necessary, so long as it is understood that it is simply intended to bind only the successors of the grantor and not the Government.

M. A. Abu Rrnmat C.J. November 1, 1960:—I concur.

Abdel Rahman El Nur P.J. November 1, 1960:—I concur.