Prescription- C~ovmers- Acts of dominion - Whether sufficient -
- Proof ,of animus domini.

Prescription - Possession - Aot of dominion - tihether maintenance of
terass over entire plot by one registered to one-half undivided
share manifests dominion~ Possession of less than entire area
claimed by one registered to one-half undivided share- Hhether
sufficient to acquire prescriptive title.

Costs and fees - Hi tnesses' expenses- W'tlether pexty calling such
must bear exuenses.

Animu3 domini- Collection of rent by cO-OIffl.ers
slefendants to prescriptive claim - Plaintiff's failure to protest,
negatives a~versity.

At a Settlement 23 years bef'or e the institution. of this suit t
plaintiff Nas registered as owner of a one-half tmdivided share in a
pld". located in Kosti District. Defendants' ancestor l-Ias registered

to the other one-half share. In the years follol-ling the Settlement
plaintiff cultivated on the land, but he did not at any time cultivate
the entire plot. After the plot became part~y inoluded in an irrigation
scheme, :';0.",-, :~'our years prior to this suit, defendants dre\~ rent for
their share; plaintiff did not protest. In this action plaintiff
claimed prescriptive title to the entire plot, and in the District -
Court it lIas

Held: (i) To acquire prescriptive title, the claimant must show

exclusive possession of the entire plot claimed. Cuitivation of less
than his registered share \'Ihen cultivation is practicable is not such
possession over the ent ire plot.

* Court: M. A. Abu Hannat, D.J.

(11) The maintenance of a terass over the entire area is not an
act of <J,ominion over "the plct, adverse to the cther shareholders, where
the claimant is registered to a one-half undivided share. Since
plaintiff's share was undivided, he had the right to cultivate in any
part of the land and therefore could maintain a t.erass for that purpose.

(iii) Failure to protest the oollection of rents by the other
shareholders showed plaintiff's reoognition of thei~ rights in the land
and negatives a claim to adverse possession.

On application for revision to the High Court, the application
was summarily dismissed.

Action.

:....iiJ~~~.H .. 4.:·~u~ao\h'itl·t,l,O~J.s Plaintiff is seeking a deolaration
tha.1! he La alone the mIller of Plot 57, )1ap 2 Ogd Abu Rabeaa R~S., core-
prising 39.977 feddans or thereabouts. This land is now registered in
half undi~ided share in name of plaintiff and defendants' ancestor.
Plaintiff alleges that the whol~ plot was his property by long possession
before and after Settle"ment and that during the Settlement of 1920 he

was absent and that'it was f~~~ulent!y registered in name of defendants'
ancestor. On examination of ~he settlement form, I found. that plaintiff

was present and that he sealed the fomt. Plaintiff later adniitted that

his statem~t as to his' absence during ~et1Plement 'l'laS false •. Hot-lever,

plaintiff made the allegation that he sealed. the form by duress as he

t-1a.S afraid of defendants' ancest or who Wfl.S an i,nfluentia.l omda , I cannot
b~peve t~s as 'hhe registration ~as carz-Led ollt by a registration officer
at' .~hewal 'l-lhich is .nct far from'the seat of. t~e pistrict Commissioner t

to 'l'lhom plaintiff could easily make his com'plaint.

As .to·plaintiff's possession after the Settlement, he alleges that                       

he has ,been alone in possession of the whole· plot since 1920. From

the evidence heard, it appears that plain~iff did not cultivate in any

time more than tw~ gedaas, which is' ev~ less than'his registere't share.
It is also sh?W that' from 192Q until the land lias partly included in

the irrigation scheme about three years ago, the land was not cultivated

more than three times. It is ~itted that .this plot was not cultivable
annually, arid that it was' only suitab,le for cultivation when heavy rains
fell, and that exceptionally heavy rains fell onoe every four or five years.

It is also admitted that plaintiff -did not P8iY ushur in ezq year for
more than two ardebs. This alene shows that plaintiff did not cultivah
the whole plot. To acquire a prescriptive title, the plaintiff DIUS't
show uninterrupted possession of the ~ plot. Ch his own admisllicm
he was not cultivating the whole plot. Plaintiff also alle~s that he
has been maintaining a terass all over the plot. Plaintiff is an owner
in undivided share. He is entitled to cultivate in azJ¥ part of thi.
plot as his 'share was not defined. He is therefore entitled to rai.e

a terus over the whole plot so that he III8iY be able to cultivate in the
more irrigated portion. In suoh ciroumstances, the raising of the tease
over the whole plot shculd not be regarded as an act of dominion against
a oo-owner in undivided share.

The petiticm mad~ by plaintiff in 1938 to the Distriot CODIIIissicmer
Kosti against defendants shows that plain~iff .was resisted qy defendants
in asserting ownership.' Af'ter the land was parlq .. included in the
private irrigation soheme of Shellal, the defendants drew rant for their
share and plaintit,f did not protest.

PlahlUff's olaim must fail. as he failed to shOll that he was in
adverse possesSion of the whole plot for the last ten years.

Plaintiff insisted on two witnesses being called. These witness8IJ
appeared.-in oourt and g&ft their evidenoe. They applied for expenses
and I think they are. entitled to reasonable expenses for their transport
from Shewal to Kosti.·

Decree acoording],z.

Notes. Application for reYisicm to the- .High COUl",t, Blue Bile Provinoe,
was summariq dismissed qy Creed, J. in HC-RlV~-1942.