Land Law-s-Sale of Land-Failure 10 specificially include seluka land in sale of
sagia=-Error ill register-s-Price p aid=Jntent of parties

Land Registration-Error in register-s-Caused by use of [eddans as unit of mea-
sure in area where uds were used-Rectification

Prescription-Wakil-Presumption that wakil holds possession on behalf of co-
owners

In 1918 plaintiff became registered as owner of ~ of a sagia in Darner
District, the remaining % being registered to Atteya Beshir. A settlement
in 1925 also registered the seluka below the sagia to these owners, in pro-
portion to their sagia shares, but through an omission the seluka was not
added to the high land in the register. After the death of Atteya Beshir
his share was registered in 1932 to his heirs, Abdel Wahid Atteya (7/8)
and Abdulla Ali Agab (1/8), and plaintiff became wakil of the heirs. This
registration also failed to add the seluka to the high land. In 1934 Abdel
Wahid Atteya sold some of his share in the sagia to defendant. Defend-
ant went into possession of both high land and seluka. Plaintiff acquiesced
in defendant's possession until she brought this action in 1940 for rectifica-
tion of the register in respect to the seluka land cultivated by defendant, on
the grounds of having acquired prescriptive title through her possession
prior to the sale of 1934. In the High Court it was held that plaintiff
had acquired title by prescription and therefore that defendant's deed did
not convey rights in the seluka. Defendant applied for revision.

Held: (i ) The sale was understood by both vendor and purchaser to
convey all of vendor's rights on the seluka, even though it was not clear
whether this meant cultivation rights only or full ownership, and this inten-
tion should be given effect to the fullest extent possible, though without
prejudice to whatever third party rights may have been previously estab-
lished.

(ii) Plaintiff's claim to prescriptive title can not be allowed because
during the period of her possession she was wakil of the heirs of Atteya
Beshir and she cannot claim the land of one of them by prescription. Her
close relationship to the co-owner raises a presumption that she held the
land in his behalf. Such a presumption could be overcome only by clear
evidence to the contrary, whereas in this case it appeared that plaintiff did
not dispute the co-owner's right to dispose of his land.

Revision

March 20, J 941. Flaxman, C.l.: The applicant applies for
revision of the decree in the above suit, in which a claim by plaintiff

• Court: Flaxman C.J., Halford J.

to have acquired an area of 2.50 feddans in the seluka land of sagia
No.7, Shaadinab Village, Darner District, was upheld, and a con-
sequential order for rectification of the land register made.

"A" The defendant appears befo're this court and still contends
that he purchased all that the vendor had in the land in question; an
assertion which the vendor has himself endorsed. And indeed it seems
only reasonable to believe that this was the intention. The high land,
except to a capitalist (which defendant is not) was of little value,
being capable of cultivation only exceptionally. The cultivable area
was the seluka, and it was to obtain this land (which adjoins seluka
he was already cultivating) that the transaction was carried out.

The defendant states that he was actually put into possession
of the land claimed by the plaintiff at the time of his purchase in
1934, and had so remained until the institution of this suit. He dis-
putes her claim to have acquired the land.by long possession.

It is with this last point that this court is now principally con-
cerned. If it is established that the vendor had a good title at the
time of the sale, not affected by an acquired right, the court should
give full effect to the sale, and, to prevent further litigation, amend
the register so that the actual intention of the parties to the sale is
given effect to. • The second defendant (the vendor) makes no claim
to the land, and the dispute is between the parties to this application.

In the course of this hearing the plaintiff has admitted that she
was, throughout the period by virtue of which she claims to have
acquired ownership, the wakil of the heirs of Atteya Beshir, one of
whose land (Abdel Wahid) she seeks to acquire. This admission
alone is sufficient to defeat the claim to have acquired his land, and
the finding of the court below in her favour cannot stand.

And apart from this admission, her relationship with this co-
owner was such as to raise a very strong presumption that she was
on the land by reason of it. Such an occupation of land on behalf
of absent heirs is not uncommon, and it would lead to great -injustice,
unless there was clear evidence from which an intention to abandon
the rights could be inferred, to permit acquisition of family lands by
an heir whose possession was in fact only on behalf of the others.
There is nothing here from which such an intention can reasonably be
inferred. On the contrary, no sooner had the absent heir (Abdel
Wahid) returned to the locality than he took steps to enquire about
and to assert his rights, and dispose of his share in the land.

There is a further point which appears to have escaped notice.
The following statement of the facts is taken from a letter from
Creed, CiL, to judge of the High Court, Northern Province, dated
June 9, 1940.

Sagia 7, Shaadinab Village, Damer District, was registered in
1906 in the name of the heirs of Beshir Fahal. In 1918 the land was
registered in accordance with an ilam as follows:

Atteya Beshir 2h
Medina Beshir 113

In 1925, at the O'Meara Settlement, the seluka below this sagia
was registered to these persons in the shares given above, but by an
omission the area was not added to the high land area in the register
although the seluka was on the map linked to the sagia and was not
given a separate number.

Atteya died and his heirs were:
 Abdel Wahid Atteya 'Ys
Abdulla Ali Agab Va

The legal assistant then altered the register by his ilam 48/32,
but in doing so he adopted feddans as a basis of calculation, a type of
registration almost unknown in the Northern Province, instead of work-
ing in uds, the normal measurement both in the land registry and
among the people. He obviously blundered in using a form of
measurement which the people of the North do not understand and
which is not customary in the Northern Province Land Registry. But
worse that that, he did not realise that a seluka area amounting_to
4.27 feddans had been added to the 5.980 feddans of the original
sagia, and his record which I have checked with Mansour Eff. Khalil
shows that be had no knowledge whatever of this seluka having been
added to the higb land sagia. It appears from your record that the
people themselves were in equal' ignorance.

On February 18, 1934, March 31, 1934 and July 30, 1934,
Abdel Wahid Atteya, according to the register" sold 0.50, 0.50 and
2.49 feddans to EI Hag Mahdoub Ahmed for £E.3.100 m/ms,
££.3.250 m/ms and ££.8 respectively. It is obvious that the areas
W¢l'C calculated OJ! the basis of the mistaken register, which had not
included the low land area, and in feddans, which are not the normal