(COURT OF APPEAL)*

AHMED IBRAI-{IM BRING I v. HEIRS OF IBRAH BRINGI

AC-REV-607-1965

Principles

·  Prescription—Pre.scripti right—When acquired by deceased during his fife time can be survived by his heirs Prescriptive right which is acquired by a deceased person during his life time is a right of the class that survives and vests in the heirs.

Therefore heirs may continue in possession until they raise a suit on the ground of pre scription or may sue immediately after the death of the predecessor to establish such right without entering into possession.

Judgment 

Osman El Tayeb J. August 30, 1966: —This is a case of prescription in which one of the heirs of the predecessor-in-ride, who had been in possession of the plot of land in dispute, attempted to claim the right acquired for himself to th exclusion of his co-heirs. The land in dispute is 4 uds in Sagia No. 28B, Urn El Tiyor Village of El Darner District.

It has been sufficiently proved that the predecessor-in-title of the parties had been in possession of this plot from about 1927 until his death in 1954. Applicant succeeded his deceased father in, that possession and continued there until 1962 when he instituted a suit against the registered owner claiming that plot by prescription. During the progress of the suit the co-heirs applied to the court to be joined as plaintiffs, on the grounds that the right acquired by their predecessor vested in them jointly with applicant. The latter, in continuing possession of the father, acted as thair agent or their trustee. They were, however, joined as plaintiffs. Applicant, who was opposing this joining of his co-heirs, made an agreement with the registered owner of the plot (the defendant in the suit) to purchase the plot from him for the value of £S.20.000m/ms that applicant paid. And the suit was caused to be dismissed, perhaps on application of applicant. But the sale was, and is still not registered: -

On discovering the dismissal of the suit as a result of the above-men tioned agreement of sale, the co-heirs (other than applicant) instituted the present suit against applicant and the registered proprietor of the plot claiming acquisition of it by prescription.

Applicant and his co-defendant defended the claim on the ground that the common predecessor of him and plaintiff was in possession as an agent and he was admitting the title of the registered proprietor and was also giving him some produce of tbe land from time to time.

Applicant also contended that he, when he entered into possession after the death of his father in 1953 or 1954, was doing the same thing as hi father. The learned District Judge found on the evidence before him that the father had exclusive possession of the plot, continuously, without interruption and without admission. That he had acquired ownership by long possession to the plot, and that the entry and continuation of that possession by applicant v was for a little less than ten years up to the date of the mstitution of the first suit v as in his capacity as a con structive trustee for himself and the other co-heirs He concluded that the right thereby’ acquired vests on all the heirs and so he declared it and ordered rectification of the register accordingly. The learned District Judge added that he agreement of sale made by applicant with the regis tered proprietor might be taken to have been made on behalf of the co-heirs (the plaintiffs) and so ordered that the £S.2o.ooom/ms, paid by applicant should be paid by all of them jointly.

On application for revision to the Province Judge by applicant, the learned Province Judge decided that the £S.20.000m/ms. was improperly paid by applicant, and so he should not be allowed to recover it from plaintiffs, and directed the District judge to correct his decision accordingly. And it was so corrected.

In the first place the learned Province Judge was wrong in reversing the’ order of the learned District Judge in respect of the contribution in the LS.20.000m/ms, paid by applicant. The respondents did make a cross application as to that order. Now applicant is not attacking the latter order to the effect that respondents should not contribute with him in that sum. But he is attacking the main points of the decision that by the agreement of sale he became the owner of the plot. I think he cannot succeed on this point. That agreement being made, in the suit for ownership by prescription, after respondents were joined in it on their application, seems to be an act of fraud on the part of applicant to deprive respondents of the right vested in them after the death of their predecessor. Plaintiff should not be allowed to obtain benefit of his own fraud, and secondly such an agreement is not one of the legal causes that can stand against a prescriptive right that has already been acquired.

In th second place, I think it is sound to hold that a prescriptive right to land that had been acquired by a deceased person dtiring his life time, can survive to the benefit of his heirs, if they’ pursue that right with diligence by institution of a suit or by possession or enjoyment Again when one of the co-heirs follows the deceased in possession, as in this case his possession shall be deemed to have been that of the other, unless the contrary is proved.

I do not think the principle of constructive trust was correctly invoked in this case, the correct decision is that the applicant (as one of the heirs) uccc that deceased possessor, in a prescriptive nght that had already seen acquired, for himself and on behalf of the other co-heirs (respon dents). The right was acquired by the predecessor at the time of his death; it is a right of the class that survives and vests in the heirs. They :ould have sued for the establishment of that right immediately after the death of the predecessor, without entering into possession. - The general rules as to interruption of others that nullifies a claim of pre scription can be raised against such claim.

For these reasons this application is dismissed with costs.

Babiker Awadaila C.J. August 30, 1966: —l concur. If applicant wants to recover any amount he paid in order that the land should be registered in his name and he believes that he can recover such money then he is at liberty to bring another suit.