Seebun v Domun and others (Mauritius)

Ownership of immovable property acquired by acquisitive prescription is not lost merely because the owner does not sue within the ordinary limitation period. The nature of an action is determined by the orders sought. An action seeking recognition and protection of ownership is a real action, or a mixed action where personal relief is also claimed, and the ten-year period for personal actions does not apply. Ownership arises from possession for the statutory period together with an act asserting the prescriptive title; a court declaration recognises that title, while transcription of an affidavit of prescription is not a precondition to a revendication action. A co-owner may bring a conservatory revendication action without joining every co-owner, and non-joinder does not defeat the cause of action.

The appellant claimed, through his father and grandfather, ownership by acquisitive prescription of 37.75 perches of land. The respondents relied on title to a larger site and had objected to an affidavit of prescription. The trial judge found possession from 1933 and granted declaratory and protective relief.

The Court of Civil Appeal quashed that judgment, treating the action as personal and time-barred by extinctive prescription. The appeal concerned the quality and duration of possession, the classification and limitation of the action, and the effect of failing to join the appellant’s siblings.

Disposition. The Board allowed the appeal to the extent of restoring the trial judge’s order declaring that Lekha Kawal had acquired ownership of the disputed land and ordering the respondents not to interfere with the appellant’s occupation and enjoyment. The requested transcription order was not considered because the affidavit was unavailable and compliance with the Affidavits of Prescription Act 1958 had not been established.

1. Acquisitive prescription. Under the Civil Code, acquisitive prescription is a means of acquiring ownership. Possession without title required 30 years, but the applicable period was 20 years between 1883 and 1 January 1984. The transitional provision in Act No 9 of 1983 preserved rights acquired under the shorter period. The possession required by article 2229 must be continuous, peaceful, public, unequivocal, as owner, and apparent through external material signs. Growing sugar cane supplied the necessary manifestation. Possession could be aggregated with that of an author under article 2235. On the accepted facts, the appellant’s father and grandfather had possessed the land for more than 30 years before 1976, so ownership had been acquired by then.
2. Interruption and assertion of title. The Board did not decide whether an objection under the Affidavits of Prescription Act 1958 constituted civil interruption under article 2244. It proceeded on the trial judge’s assumption because the point could not affect the result. Acquisitive prescription does not operate automatically. Possession for the required period, combined with an act setting up the prescriptive ownership, creates the title. A declaration recognises rather than constitutes ownership, and transcription of an affidavit or a prior court order is not required before an action en revendication can be brought.
3. Extinctive prescription. The Court of Civil Appeal had wrongly classified the claim as personal. The nature of an action is determined by the orders sought. A claim to establish ownership is a real action; this claim was mixed because it also sought relief concerning the affidavit and the Conservator of Mortgages. The ten-year period for personal actions therefore did not apply. Ownership of immovable property is not lost by extinctive prescription merely through non-use or loss of possession; it is lost only if another person acquires ownership by acquisitive prescription.
4. Non-joinder. The Board approved Choo Ping Fen v M B Tickfine 1998 SCJ 38; 1998 MR 7. A co-owner may bring a conservatory action en revendication without joining the other co-owners. Article 813 and rule 19(1) of the Supreme Court Rules 2000 independently supported the conclusion that non-joinder did not defeat the action. It remained preferable to join all known interested parties, but the siblings’ absence caused no relevant prejudice.

The appellant’s production of false documents was deplored and left relevant to costs, but it did not affect the appeal’s outcome.

• Privy Council: In [2019] UKPC 39, the appeal was allowed to the extent of restoring the trial judge’s declaration of ownership and protective order.
• Court of Civil Appeal of the Supreme Court of Mauritius: By final order dated 23 August 2012, the court quashed the trial judgment and held that the action was personal and barred by extinctive prescription. Final leave to appeal was granted on 2 June 2014.
• Trial judge: Judge G Angoh, by judgment dated 3 March 2011, granted the appellant’s requested relief.