Land Law=-Remedies-s-Claim in respect of land-Monetary compensation a
proper remedy where redistribution of land impracticable.

Limitation of actions-Land-Improper registration-Claim originally one in re-
spect of land-Whether affected by distribution to heirs following admin-
istration of estate

El Tayib, ancestor of defendants, purchased shares in Arnir's estate of
Gezira lands from two of the plaintiffs. The estate was partitioned and
distributed, El Tayib taking his shares in one plot. A year after the pur-
chase, a survey found that Amir's estate consisted of a greater area than
that registered. The surveyor thereupon allocated the excess land to the
last numbered plot in the estate, that is. EI Tayib's plot. After El Ta-
yib's death, his estate was administered and distributed to defendants, four
of them sharing in this plot. In this action, brought 9'12 years after tbe
survey, the heirs of Arnir claimed a declaration of ownership of the excess
land plus rents due, or in the alternative, monetary compensation. The ac-

'" Court: Flerning-Sandes, J.

tion was defended on the ground that it was a claim for damages and
therefore time-barred as not having been brought within five years of the
accrual of the cause of action.' Plaintiffs contended that it was a claim "in
respect of land" and therefore actionable within ten years."

Held: (i) At the time the survey report was made plaintiffs had a cause
of action for a declaration of ownership and rectification of the Register, to
which there would have been no defence, since the registration to El Tayib
was unjustified.

(ii) The fact that El Tayib's estate was administered and distributed
could not affect the nature of plaintiffs' claim, and therefore it was still one
"in respect of land" and actionable at any time within ten years of the im-
proper allocation.

(iii) Although the claim was one in respect of land, a partition and
redistribution now would be impracticable, and therefore plaintiffs would be
allowed damages in the amount of the fair market value of the land.

Prescription and Limitation Ordinance 1928, s. 7.

Action

January 12, 1939. Fleming-Sandes, J.: The plaintiffs claim the
ownership of 40.216 feddans of land out of the 525.367 feddans, com-
prising plot 62, sub 20, Mahareiba Registration Section in the Blue
Nile Province. The plot in question is registered in undivided shares
in the names of four of the defendant heirs on partition of the land
forming a part of their ancestor's estate, by ilam No. 67/31 dated
November 2, 1931, and registered on January 24, 1933.

Plaintiffs claim a declaration of ownership, rectification of the
register in their favour, and an order for the payment of a propor-
tionate part of the total rent drawn since January 1, 1930, on which
date the plot became totally affected by the Gezira Scheme. Alterna-
tively, they claim compensation in cash and/or such other relief as
this court may deem fit.

The claim arises in the following circumstances: The defendants'
ancestor, Sheikh EI Tayib Mohammed Badr, a man of considerable
wealth and power, purchased in 1927 the shares of two of the plain-
tiffs' heirs in their father's estate. The land comprised in this estate
was, in due course, partitioned, and Sheikh El Tayib was allotted the
land representing the shares of the vendors in one plot. This partition
was in due course set out on the ground by the Surveyor Mohammed
Eff Seid Ahmed, and it was agreed that Sheikh E1 Tayib should be

1 Presumably under section 7, Prescription and Limitations Ordinance 1928,
Schedule J 2.

2 ibid., Schedule 16.

allotted the southern-most portion. As was only to be expected in the
partition of an area of 2128.980 feddans, the plots subdivided did not
quite work out according to plan, and after giving Sheikh El Tayib
the 485.352 feddans due to him, an area of 40.216 feddans was
found to be surplus and unallotted. It was accordingly left included
in the last number, plot 62, sub 20, and thus formed a portion of
Sheikh El Tayib's land. A report dated December 26, 1928 was
made by the surveyor but nothing further transpired.

In 1929 Sheikh El Tayib himself died, and in course of time, plot
62, sub 20, including the 40.216 feddans now in dispute, was included
in his estate and duly partitioned by the Sharia Court amongst his
heirs, being allotted to four of their number and registered as stated
above. As from the beginning of 1930, the land was wholly included
in the irrigated area and rent has been paid to the registered owners
since that date. In March 1938, during the visit of the elimination
party to the area in question, the plaintiff heirs made enquiri~ and
decided to raise their claim. Thus far the facts are not in dispute.

The plaintiff heirs excuse their delay in raising the question by
saying that they were unaware of where the excess land had gone.
But on the evidence of the surveyor Mohammed Eff Seid Ahmed, I
am satisfied that their leaders knew perfectly well that the land had
been included in the plot of Sheikh El Tayib under number 62, sub
20. I am quite prepared to believe that the present defendants had
no knowledge of the matter until it was raised in March, 1938.

The parties have not been able to favour me with an argument
in support of their respective cases. But so far as I can see the
defence to the claim can only lie under the Prescription and Limitation
Ordinance 1928. I therefore have to decide whether in the admitted
circumstances of the case the plaintiff's claim is barred under the Ordi-
nance.

The defendants have argued that the claim amounted to a claim
for damages and that, therefore, the period within which the plain-
tiffs should have brought their claim was five years. The plaintiffs
would have argued in reply that their claim was one "in respect of
land," and that therefore their right of action was not barred until the
expiration of ten years from the date of its accrual.

In my view the position is as follows: When the surveyor on
December 26, 1928, made his report, there was no doubt that the
plaintiffs had a case against Sheikh El Tayib Mohammed Badr for