Principles

·  PRESCRIPTION— Possession— High riverain land (bugur) One season of cultivation does not establish presumptive continuous possession under Prescription and Limitation Ordinance 1928, s. 4(l)

·  PRESCRIPTION — Ownership — Testing soil fertility is evidence of ownership

A prescriptive claim to high riverain land cultivable only at exceptional flood time is not allowable where claimant proved only oiie season of cultivation, 12 years prior and cultivation of a negligible portion after institution of the action, and the Registered Owner made constant visits to the plot for 5 years to take soil samples for testing fertility such visits constituting acts of ownçrship.

A prescriptive claim to high riverain land cultivable only at exceptional flood time is not allowable where claimant proved only oiie season of cultivation, 12 years prior and cultivation of a negligible portion after institution of the action, and the Registered Owner made constant visits to the plot for 5 years to take soil samples for testing fertility such visits constituting acts of ownçrship.

Judgment

Advocates: Ahmed Fadl ………………………….for Applicant

Amin El Taher El Shibli ………………………..for Respondent

Babiker Awadalla, J., May 9, 1960:— This is an application against the summary dismissal.by the Judge of the High Court, Khartoum, of an application to him for revision of the decree of the District Judge, Khartoum in CS-1065-1958.

The original claim was one for rectification of the register of five habils tumani in Sagia 31 , Lamab Bahar Abiad, by prescription. The land is 1 500 feddans in area and had for a long time been registered in the name of applicant.

The respondent-claimant contended before the District Judge that he had been in peaceable  public and uninterrupted possession of that land for a long time The land is of the type known locally as ‘bugur”, i.e., high riverian ’ land that is cultivable only at exceptional flood time.

The only evidence of possession by the claimant is that he had culti vated the land in 1946, when the land was made cultivable b reason of he exceptional flood of that year. In spite of this, the learned District judge ordered rectification of the regis!er, although he was satisfied that the iand was not cultivated at all in its entirety save once. The learned District udge took the trouble of visiting the land a year after the institution of he suit and found signs of recent cultivation on a very small patch which :ie estimated at about 25 square metres out of a total of 7,300 square metres. .t seems that alt houg he did not believe that the land could have been cultivated between 1946 and 1958, yet we take it that he considered Prescription and Limitation Ordinance, s. 4(1) applicable to the facts and so gave respondent the benefits of the presumptive possession provided for in the section cited.

• Court: Babiker Awadalla, I., and A.M. Imam J.

We entirely disagree with the conclusion of the learned District Judge. The cultivation of 1958 is too negligible to amount to possession of the whole plot. Further, and this is very important, it is clear that that cultivation was purposely carried out by respondent while tbe suit was still pending, with a view to creating evidence of possession, and ought not there fore to have influenced the mind of the Court in favour of respondent.

The learned District Judge was in our view wrong when he disregarded altogether the evidence of acts of ownership exercised on the land on be half of applicant. D.W. 1 has stated that he was corrstantly visiting the land during the last five years and taking samples thereof to test its fertility. This evidence remained unshaken and ought not to have been ignored by the Court, because it amounted to such exercise of acts of ownership as was possible having regard to the nature of the soil

We are satisfied that the evidence adduced in favour of respondent is far short of establishing the requisite ingredients of a prescriptive title in his favour. To us he seems to believe that he can have the registration rectified in his favour not because he was cultivating the land, but because the applicants were not doing so. It is pertinent here to refer to Rustomji, Law of Limitation 809 (6th ed. 1958): “The rightful owner is not dispossessed so long as he has all the enjoyment of the property that is possible; and when land is not capable of use and enjoyment, there can be no dispossession by mere absence of use and enjoyment.”

This application is therefore allowed with costs and the decree of the learned District Judge is hereby reversed.

A. M. Imam, J., May 9, 1960:— 1 concur.