Estoppel- Prescription- Whether pgyment of rent to registered owner
or third party estops plaintiff from claiming prescriptive title.

Landlord and tenant - Prescription- Lessee's ability to prescribe
while pa;,ring rent.

Prescription - Lessee- Ability to prescribe while paying rent to third
party - Registered ovmer or agent of registered ovmer - I'ihether
such payment has claims of prescription.

Statute - Interpretation - Degree of flexibility open to court Hhere
statute needs amendment.

Words and phrases- "Possession".

fuere a per-son claiming prescriptive title is shown to have
paid rent to the agent of the registered owner, he thereby
acknouledges t he title of the registered owner- and his claim is
barred. If the p~~ent of rent is to a stranger or third party,
it r:lDJ be t:!'w.t the claim Hill not be barred.

Prescription and Limitation Ordinance 1928, s.3.

Appeal.

:~t,ii~t: .11',. ,1946, ,a.ennet.t" 'C·.J.:This is an appeal from the judgment
of the High CO'Jrt, Khartoum, in a suit in lIhich the plaintiff claimed

a prescriptive title to 70 ~ sudasi in sagiano. 1 Abu Halina village.
~le plaintiff entered into possession of the land in 1928 by arrangement
\~ith his Omda ,

* Court: Bennett C.J., Platt, J. and Evans, J.

The defence to the suit was:

(1) Under the arrangement he made with the Omda, the plaintiff paid the Omda as agent of the defendant,

the registered owner, 40 P.T. rent per annum

(2) In 1941, the plaintiff paid Sheikh Ibrahim Ali E1 Faha1 acting as agent for the defendant the

sum of 150 P.T. rent in respect of the 1941 cultivation.

(3) In April,1942 the plaintiff agreed to pay Sheikh Ibrahim Ali El Faha1 as agent

for the defendant, rent for the 1942 cultivation in respect of the six
feddans he was actually cultivating.

The lear-fled High Court Judge who sari and heard the important vlitnesses
found that the facts supported all three of the above contentions of the
defence, and I can find no sufficient reason for disagreeing with his
findings of fact except as to the nature of the 40 P.T. per annum payment s
paid by the plaintiff to his Omda. It is perfectly appar-errt that the

Omda did not regard himself as receiving these payme~ts on behalf of the
defendant, the registered owner, and perfectly clear that the defendrult

Has not bound by the arranG~r:lent made by the Omda. He could have come

any time Hithin ten years from the plaintiff's entry into possession and
turned him out 0 'rhere HilS therefore no inter.ru:pt ion of plaint iff's
possession: no c.cl:nollledcraent of the defendant's title "las constituted

by these payment s ; no such right of cult i vat ion 1-I2.S conferred. upon the
plaint iff as uoul.d nakc him a usufructuary; end in r.!:' o)inion t'lC, ~Jl;' bt iff
but for his actions referred to b itC!'13 (2) and (3) of the dcf'cnco c.:;

above-mentioned should have succeed.ed in the suit 0 'i:'~:c Lan r-equaz-cs for

the acquisition of a prescriptive title only - public, peaceable and
uninterrupted possession by a person not a usufructuary, and the C;~tC;.l:·{S
Hhich have been previously made in jUclGf."'ents c'.eliverecl in this court t o
read into the woz-d "possession" qualities wh i ch ar-e not carried by its
ordinary meaning are not justified by the words of the Prescription and
Limitation Ordinance 1928 s.3_0 That the Law requires amendment, I do

not dispute, but that is a matter for the legislature and not fer the
courts. Indeed, if it nad not been for the undue straining of the law

by previous decisions of the court, this admittedly unsatisfactory

Ordinance Hould long since have been amended. The courts exist to interpret
the law, not to make it, and the latter action, apart from deliberate
injustice, is the "lOrst in which a court can indulge.

Nevertheless, the facts referred to in items' (2) and (3) of the
defence as above mentioned operate in my opinion to defeat the plaintiff's
olaim in this suit. A man oannot renounoe his right to presoribe in
advanoe, but he can renounoe any previous presoriptive rights which he

m~ have acquired and that renunciation may be either eXpress or taoit,
provided that in the latter case such renunoiation is aneoessary
inferenoe from what he does or s~s. Here the plaintiff paid rent in
respect of the 1941 cultivation of the land in question to the agent of
the registered owner and he agreed to do the same in respeot of the

1942 cultivation. A man cannot in the same breath s~, "I o),aim this

;land as my own and I wilT p~ you rent for this land." In my opinion,

therefore, the plaintiff by his aotions and words in 1941 and 1942
taoitly renounoed the previous presoriptive rights acquired by him in
respect of the land in question.

I am therefore of opinion that the decree of the learned High
Court Judge should be affirmed.. The defendant has not incurred any
oosts in the appeal and there should therefore be no order as to the
oosts of the appeal.

Platt JI I ooncur.

Evans. J.: ~ view shortly is that the learned High CO\p't Judge who
heard and saw the witnesses had suffioient evidenoe before him to oome

to the oonolusions he did, and having heard the arguments on appeal, I
·see no good reason to upset his findings. As regards the nature of the
40 P.T. per .mnum p~ent made by the plaintiff to the Qncia, it may well
be that this p~ent was not a suffioient acknowledgment by the plaintiff'

. of sOllleboccy-ts title (other than his own) and therefore, in my view,
suffioient to prevent him from even begin!-,.:L":'.g to acquire a presoriptive
title, what .• ver misht have be,en the positi~.:; as between the Qnda and the
regi.tered owner, which question I do not find it neoessary to deoide.

:But if I am wrong on this point, the p~en~ of 150 P.T. made by
the pl&intitt to Sheikh Ibrahim J.li E1 Fahal as agent for the defendant
~ reapect of the 1941 cultivation, and his agreement to P8ir Sheikh
.Ibrahim as such agent rent for the 1942 cultivation in res,.ot of the
six teddana h. was actually Cultivating oertainly prevent him from
suooeeding in. hie olaim in this suit - as has been found by the learned
Chief Justice

As regards the learned Chief Justioe's observations on previous
decidons of thi;:: .Court of ..appeal, in cases under the ~esoriptiop
and Limitation Ordinanoe and em the const~ctiQn .,of the provisions"
cf the ordinance itself. I do not find it nece$sacy to sey- anything
nzy'self in this. case, and in fact I am not prepared to do 30, .because ,

- among other.1'N.Barts, the question of exactly what "possession" as '
,/ used in thj!! ordinance means waa not fully and sat isfact.orily argUed
before this court.

I l10uld only say that t-Iare it necessary otherwise to Suppon the
decision of this oourt, I vlt7Uld be prepared to base it an the gzoound

of est.oppel. On this reasoning, plaintiff by his ottInduat had intentionall;t
caused' the defendant to believe in the existence of a certain state of
facis, namely that he had admitted the.def'endant to be the owner of the
Land and induced him to act on that belief by leasing the land to

plaintiff t and so he is now precluded from averring against the

respondent a'different state of things, i.e., that he .is the real

owner.

Pl~tt, J.;I ooncur.

A£Peal dismissed.