Choudry Mohammed Iyaz v Mohammed Ilyas & Anor

___________________________________________________________________________ Keywords: adverse possession; unregistered land Case referred to J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 Introduction

1. On 1 September 2021, the Applicant applied, with the assistance of Carltons Solicitors, on form FR1 for first registration as proprietor of the land known as the land adjoining 593 Stratford Road, Sparkhill, Birmingham, shown edged red on the plan attached to that application, together with the building on it. The basis for the application was adverse possession.

2. The plan attached to the application is very small. For the purposes of this decision, I will refer to the sketch plan annexed, which shows the land over which title was claimed by the Applicant coloured in red.

3. The land coloured red can be divided into a rectangle (“the Rectangle”) with a smaller triangle behind (“the Triangle”). The dispute referred to me, and the only dispute I have power to determine, is whether the Applicant is entitled to the land coloured red on this plan – ie the Rectangle and the Triangle – by virtue of adverse possession.

4. At times, the parties appeared to believe that the land coloured green was also the subject of the application. It is not, and whilst use of that area may be relevant to determining who was in possession of the Triangle, and I will therefore need to refer to that land in this Decision (and I will do as “the Green Land”), the Tribunal only has jurisdiction to determine the dispute referred to it by Land Registry, i.e. whether the Applicant is entitled to the Rectangle and the Triangle.

5. The First and Second Respondents (who I shall refer to as “the Respondents” in this Decision) have owned the adjacent property, numbered 593 on the plan, since 2013. The Green Land forms part of their freehold registered title, registered under title number WK186314.

6. The Respondents were represented at the hearing before me by Mr Sarwar of Aman Solicitors, to whom I am very grateful for both his two written skeletons and also his sensible and pragmatic assistance during the hearing.

7. The basic requirements for an adverse possession claim were not in dispute. In order to succeed in an adverse possession claim, the Applicant would have to show both a sufficient degree of physical custody and control, and an intention to exercise such custody and control on his own behalf and for his own benefit: J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 at [40]. That possession cannot have been with the consent of the registered proprietor, and must have lasted for at least 12 years.

8. Although the Respondents’ skeleton suggested that there might be a dispute on the law because it was suggested that the Applicant would need to prove that one of the exceptions in Schedule 6 of the Land Registration Act 2002 applied, I did not understand Mr Sarwar to press that point. For the avoidance of any doubt, I am satisfied that the Schedule 6 requirements do not apply here, because the land to which the application relates is unregistered land.

9. The Respondents’ principal arguments were: (1) In relation to the Rectangle and the first floor of the Triangle, the Respondents accept that someone has been in adverse possession for more than 12 years and is entitled to be registered as proprietor as a result. However, the Respondents say that it was the Applicant’s father, Mr Choudry, and not the Applicant who has been in possession. Mr Choudry was referred to as the Third Respondent in the Respondents’ skeleton, although none of the Orders in the hearing bundle appear to join him as a party and he is variously referred to in those orders as the Third Respondent and the Second Applicant. However, I am satisfied that the original application to Land Registry was made by (or on behalf of) the Applicant alone and it is the Applicant’s claim to adverse possession which I must determine. (2) In relation to the ground floor of the Triangle, the Respondents do not accept that either the Applicant or Mr Choudry have had exclusive possession. They say that they and their tenants have used that area for storage, accessing it predominantly via an internal door.

10. The Respondents also ran an argument about procedural irregularity, arising from the fact that although the Applicant had confirmed that the signature on the statement of case was his, his father’s evidence was that for some reason, he had actually signed his son’s statement of case and vice versa. Since the content of the second one simply affirmed the contents of the first, it does not seem to me that this is a significant point. (The Respondents had also raised a separate alleged procedural issue in their skeleton, but this appears to have been founded on a misapprehension about the application which was referred to the Tribunal and the evidence which had been filed with Land Registry in support of that application).

11. The Respondents also suggested in their written skeleton that the present claim was an abuse of process because it was made by the Applicant and not by his father. However, that submission was not pressed in closing, and in truth it adds nothing to the argument that the Applicant could not succeed because it was his father who had been in possession. There was a further suggestion that the application was an abuse because it went behind a decision of the County Court in 2016 that the Green Land belonged to the Respondents. As I have indicated, this application does not relate to the Green Land, so that point also fell away.

12. At the outset of the hearing, I asked Mr Choudry whether he wanted to become a joint applicant. He indicated that he did not want to do that. However, the Applicant asked for permission for Mr Choudry to present the case on his behalf. As this application was not opposed by the Respondents (no doubt because they thought it would help them to make out their case that it was Mr Choudry who was in fact the person who had been in possession), I agreed, and that was how the hearing proceeded.

13. I heard evidence from each of the parties. The Second Respondent gave his evidence through a Court interpreter, Mr Syed Qasim Hasan, who was a great assistance. I would like to record my thanks to Mr Hasan for his professionalism, and his accuracy (which I infer from the fact that I think everyone in the Court room apart from me spoke Urdu and no-one complained that he was mistranslating).

14. I also conducted a site visit on the morning of the hearing. Background

15. The broad history appears to be as follows. Mr Choudry purchased the property known as 593 Stratford Road in or about 2003. This comprised the land registered under freehold title number WK186314, and also, according to Mr Choudry, a strip of adjacent land upon which the vendor parked his car. That land included the Rectangle (at least).

16. In 2005, Mr Choudry obtained planning permission to build an extension to 593, and built on the Rectangle, the Triangle and the Green Land. In due course, that building which comprised 3 storeys at the front and 2 storeys at the rear came to be known as 595 Stratford Road. The existence of this building forms the foundation of the adverse possession claim. Events prior to 2013

17. As I have already indicated, the Respondents were not “on the scene” until 2013, and they did not call any evidence of their own about what had been happening on the Rectangle or the Triangle during this period. Indeed, their only challenge in relation to this period was whether these areas had been occupied by the Applicant or his father.

18. The Applicant was 17 years old in 2005 when the building was constructed.

19. It was not disputed that the ground floor of the Rectangle has been let to a mobile phone shop at all material times. The Applicant said that the rent was paid in cash and it was collected by either himself or his father, and this was not challenged (although his statement of case had suggested that it was his father, Mr Choudry, who collected the rent). I think it most likely that the Applicant collected the rent during the period prior to 2013, whatever may have happened more recently.

20. In response to a question from me, the Applicant indicated that he had been in sole possession of the upper floors of both the Rectangle and the Triangle from 2005, when the building was built, until 2013. That allegation did not appear in his statement of case. Mr Choudry said in evidence that the upstairs part had initially been rented. That seems more likely to me. There is no reason for the statement of case not to have mentioned that the Applicant was in possession from 2005 onwards if that were indeed the case, nor for Mr Choudry to have said that it was rented if the Applicant had in fact been in possession. Accordingly, I find that during the period until 2013, the upper floors were rented out.

21. There was no evidence as to who received the rents from these tenants, but given the Applicant’s age when this arrangement began (17), the fact that it was Mr Choudry who built the building, and the Applicant’s admission in evidence that Mr Choudry controlled the property, I think it most likely that it was Mr Choudry who collected the rent (and I so find). 2013

22. At some stage, Mr Choudry had taken out a loan with Commercial First. I have not seen the mortgage. In 2013, Commercial First enforced their security. Mr Choudry told me that there were proceedings between him and Commercial First about the extent of the security, but I have not seen any papers relating to those proceedings. Having heard Mr Choudry’s evidence, and taking into account that it is unlikely that a mortgage company will have considered an unregistered possessory title as adequate security, I find that it was determined at this stage that Commercial First’s charge was only over the registered title.

23. Mr Choudry appears to have understood – from the sales particulars - that the Respondents had only bought the building which had been standing when he purchased 593. However, although I have not seen the transfer to the Respondents, I am prepared to accept that the mortgagees will have had a charge over the whole of the registered freehold title and that they will have sold everything they had - even if they were not aware that they had more than had been described in the Particulars. (Mr Choudry’s real complaint may be that the mortgagee therefore sold at an undervalue, but that is not a matter which is relevant to the dispute between the parties before me).

24. I suspect that some confusion has arisen because SOME of the land adjacent to the building known as 593 – and therefore some of the land on which Mr Choudry built – fell within the registered freehold title (i.e. the Green Land), but there was nothing to delineate the boundary of the land bought by the Respondents “on the ground”. That is to say that there was no internal wall along the boundary between the Green Land and the Triangle: it fell somewhere in the middle of the room at the rear of the extension on 595.

25. That room could be accessed via an external door from the side passage (ie the side door into the Triangle). There was a dispute about whether the Respondents were given keys to that door by the estate agents.

26. I find that there was also a door giving access from the rear of 593 into that room. The First Respondent produced some photographs showing a doorway in the partition wall opposite the side passage. The photographs are not dated, but they show somewhat dated décor in 593, and that the floor covering matches both sides of that door and runs underneath it. I therefore find that that doorway existed prior to the sale to the Respondents, when Mr Choudry was in possession of both 593 and 595, and that it remained in existence when the Respondents purchased (because they were able to take these photographs).

27. The Respondents appear to have taken the view that they were entitled to use that room – or at least some of it. From what I have gathered they accessed this room, which was then being used by Mr Choudry as his office, taking or destroying a number of files relating to his business which he was storing there, and commenced building works which I think included demolishing the existing partition wall between 593 and this room.

28. This resulted in Mr Choudry taking proceedings against the Respondents. By an order dated 29 November 2013, a judge of the Birmingham County Court restrained the Respondents from entering on any part of the land beyond the original building on 593 – ie from entering the Green Land, the Triangle or the Rectangle. Events after 2013

29. I believe that injunction remained in place until the proceedings were concluded, which I think occurred in 2016. The Respondents’ lawyer, Mr Sarwar, told me that the Respondents obeyed this injunction. That means that from 2013 to 2016, the Respondents were not using any part of the Triangle (or the Green Land).

30. The final order disposing of these proceedings was not produced. However, the Respondents produced a draft order which declared (although not in these terms) that the Green Land fell within the Respondents’ registered title. The draft order also provided for Mr Choudry to pay for the use of the external staircase within the Respondents’ title which was then – and still is – the only way to access the first or second floors of the Rectangle and the first floor of the Triangle. Mr Choudry did not dispute that the judge had determined that the boundary lay along the line between the Green Land and the Triangle. I cannot go behind the findings of the earlier judge.

31. Mr Choudry says that he asserted a claim to the Green Land in this claim, but the judge said that he could not at that time establish title to it. That makes sense. Prior to 2013, Mr Choudry cannot have been in adverse possession of the Green Land since he was the registered proprietor of it. But Mr Choudry says that the judge told him that he was only deciding the location of the boundary at that time and he would not be shut out from asserting title by adverse possession of the Green Land in the future. I can well believe that a comment of that nature could have been made by the judge.

32. Mr Choudry said – and I do not think that this was disputed – that some red markings on the walls within the ground floor room were put there by a surveyor shortly after the decision was made in 2016, to delineate the boundary.

33. But neither party erected a full partition along this line, and as I understood it, Mr Choudry did not accept that the markings had been put in the right place.

34. In 2017, the Respondents let the ground floor of 593 on a 15 year lease to Muhammed Khan. Although I have not seen that lease, it appears from the title plan that the area let was not co-extensive with the freehold title of 593, and specifically, that the Green Land was not included in the lease. I was not addressed about whether the Respondents had reserved any right to enter the ground floor in order to access the Green Land (or the Triangle) or had granted the tenants any right to use the Green Land (or the Triangle) in the lease. Mr Khan did not give evidence, despite it being a key part of the Respondents’ case that Mr Khan had used the Triangle for storage.

35. In parallel with these proceedings, it seems that Mr Choudry made various applications for adverse possession to Land Registry. I do not have much documentation about these, but it seems that they were all rejected. Subsequently in 2018, the Applicant applied to Land Registry for adverse possession. I do not know what became of that application either, but Land Registry provided the Tribunal with photographs taken by a surveyor in March 2018. It is clear from those photographs that the door giving access to 593 was still in place, and the partition wall was further towards 595 than it was during the site visit. They also show a low level partition more or less in line with the red markings on the wall. This was not, so far as I am aware, ever completed. I do not know why.

36. The surveyors report also makes clear that at that time someone was in the course of constructing the toilet cubicle which sits between the Triangle and the Rectangle. It was not suggested to me that it was anyone other than the Applicant or Mr Choudry who carried out this work.

37. Subsequently, the Respondents moved the partition to a new location parallel to the old one, and the side wall – ie not along the line which had been determined to be the boundary by the judge during the proceedings. I got the impression that this was because they wanted to create a rectangular room within 593, for the benefit of their tenant, who, I was told, wanted a bigger kitchen. The First Respondent said that they still had access to the ground floor part of Green Land (and the Triangle) via a door in their new partition, and that they intended to use the ground floor of the Green Land (and the Triangle) for storage, but there was a dispute about whether this door existed, and, if it did, I do not know why they did not also divide their storage area (the Green Land) from the Triangle, so that it would create a secure storage area to which those using the Triangle would not have access. The Rectangle and the upper floors of the Triangle

38. I did not visit the Rectangle as I was told during the site visit this area was not in dispute. However, at the hearing, the case advanced on behalf of the Respondents was that the Applicant’s claim to the Rectangle should be dismissed because it was Mr Choudry and not the Applicant who had been in possession.

39. The ground floor of the Rectangle remained rented to the mobile phone shop. I accept the Applicant’s evidence that rent was sometimes collected by him and sometimes by his father. But the real question is whether the Applicant did that in his own right, or on his father’s behalf – and vice versa.

40. As for the remaining areas, both the Applicant and Mr Choudry said that in or about 2013, when the mortgagee took 593, the estate agency business which Mr Choudry had set up and which was trading from 593 moved into 595. I think that initially the business was in the ground floor of the Triangle, but the business moved to the first floor in the Rectangle after the events in 2013 described above. Both the Applicant and Mr Choudry asserted that the Applicant had, prior to this time “joined [Mr Choudry] in his business”. The Applicant said that he had been involved in that business with his father for some time, albeit he wasn’t there 9am - 5pm every day. He described it as a father and son partnership, but later said that his father had control of the property and the business. That, it seems to me is relevant to both the collection of rent from the mobile phone shop and the use of the upper floors.

41. Furthermore, as the Respondents’ lawyer pointed out, when legal action needed to be taken to defend their ability to use the property in 2013-2016, it was Mr Choudry who took it, not the Applicant. The tenor of the oral evidence given by both of them and the way in which the case was presented (with Mr Choudry speaking on behalf of the Applicant and the Applicant absenting himself from the court room for periods of the hearing) matched the pleaded case – namely that it was Mr Choudry who had been in possession and running the show and had the entitlement to the claim, but he was “transferring it” to the Applicant.

42. I therefore find that Mr Choudry was in adverse possession of this area from 2005 onwards, and not the Applicant. I have considered whether it is possible that Mr Choudry has ceded possession to the Applicant recently, but there was no evidence of that. The Applicant only arrived at the end of the site visit; Mr Choudry had keys to all relevant areas and was able to give me access to both the ground floor of the Triangle and the upper floors, and there was no evidence of any change in practice in relation to collection of rents from the mobile phone tenant, or otherwise.

43. It is therefore necessary to consider whether Mr Choudry had indeed transferred his possessory title to the Applicant. No formal conveyance was made, so any purported transfer would not have been effective by reason of the Law of Property Act 1925 s52 /53.

44. I have also considered whether the Applicant might have acquired the or a beneficial interest in the possessory title. The Applicant said that there had been conversations between them about the fact that the business and the property would pass to him one day, and he needed to step up as both of them were getting older. However, he also admitted that he would not have done anything differently if these conversations had not taken place (since all he had done was his duty as a good son) and that he knew that his father could “take it back” at any time. I do not therefore consider that the Applicant can claim any interest in Mr Choudry’s possessory title.

45. I have also considered whether the Applicant could be taken to have made his application on behalf of his father, which was the tenor of his oral evidence. But, Mr Choudry disavowed any intention to benefit from the application. Mr Choudry had clearly made a conscious decision not to assert any claim himself. Therefore I do not consider that it is possible for the Applicant to argue that his application was in reality made on behalf of his father.

46. Accordingly, the Applicant’s application for first registration of these areas fails. However, I have found that Mr Choudry has been in adverse possession of the Rectangle and the upper floors of the Triangle since 2005. If Mr Choudry now makes an application for first registration of the Rectangle and the upper floors of the Triangle, the Respondents will, by virtue of this decision and indeed the case they asserted before me, be estopped from denying that Mr Choudry has been in adverse possession of these areas since 2005. The use of the ground floor of the Triangle

47. The position was no different in regards to the ground floor area of the Triangle. It was clear to me from the evidence that it was Mr Choudry and not the Applicant who had been using this area. The Applicant’s evidence was that he had not seen the red markings on the wall, which I find had been there since 2016, until very recently. I therefore find that the Applicant had not been in adverse possession of the ground floor of the Triangle either, and there was no effective transfer of any rights Mr Choudry had over that area to the Applicant. That is sufficient to dispose of this reference. However, since it seems inevitable that a dispute between Mr Choudry and the Respondents will remain, and the real dispute between the parties was in relation to the use of this area, I will set out my findings in relation to that too.

48. For the period from 2005 to 2013, there can be no dispute that Mr Choudry was in adverse possession of this area.

49. The case for the Applicant was that he/his father had at all times thereafter had a key to the external side door giving access to the ground floor Triangle, and had used that for storage and to access a toilet, and a water supply used for washing cars.

50. The Respondents accepted that Mr Choudry had access to the ground floor of the Triangle via the side door. There was some debate about whether the Respondents had been given a key to the side door by the estate agents. However, I find that even if they were, Mr Choudry changed the locks and they no longer had access via the side door.

51. But, the Respondents also initially had access via the internal door in 593. However, as I have set out above, it is clear that the use of both the Green Land and the ground floor of the Triangle was contentious in the immediate aftermath of the sale of 593 in October 2013, and an injunction was granted on 29 November 2013, preventing the Respondents from entering that land until after the final hearing, which I think occurred in 2016. Mr Sarwar told me that the Respondents did not use any part of the Green Land or the Triangle during this period.

52. Accordingly, from 2005 to 2016, Mr Choudry had possession of the ground floor of the Triangle, and no-one else was using it.

53. I am satisfied that Mr Choudry continued to use the Triangle after 2016: during 2018, he installed a toilet there. I was told that the area was used for storage, though at the time of the site visit, there were only a few building materials. This may have been because of events the evening before, but there was no mention that a lot of items which had been stored there had been removed. I am not therefore satisfied that Mr Choudry was in fact storing substantial volumes of material in this area.

54. The Respondents could in theory have accessed the Triangle as well as the Green Land after the final order was made in or about 2016, but I do not believe that they did, for 4 reasons.

55. Firstly, the Respondents attached a good deal of weight to the previous court order in their evidence before me, and there was a clear delineation on the ground of where that line ran. I do not therefore accept that the Respondents were regularly trespassing over that line, even if they were using the Green Land.

56. Secondly, I find that when the Respondents moved the partition, they removed the door to the Green Land. At the site visit, there was a door from the Respondents’ property into the Green Land. This was not in the same location as the door which existed in 2018. Since there is and never has been any complete division between the Green Land and the Triangle, this door gives access to the Triangle. The Applicant said that this doorway had been cut the evening before the site visit and the police had been called as a result. At the site visit, the opening looked new: there was some debris on the floor on the triangle side of the door and no architraves were fitted so it was possible to see that the cut edges were “raw”. Further the door did not appear to have been painted and had no handle on it. I do not accept that this doorway had been there for any significant amount of time and think it most likely that the doorway was cut the night before the site visit, and this was the cause of the disturbance that led to the police being called. Accordingly, from the date when the partition was moved until shortly before the site visit, I find that the Respondents did not have access to the Green Land or the Triangle.

57. Thirdly, I do not think that the Respondents can in fact have been using the Triangle. It was clear to me that Mr Choudry would not have accepted this and he would have taken some action to prevent it – as he did in 2013 when he sought an injunction and as he did the evening before the site visit when he called the police. I therefore find that the Respondents were not in fact using the Triangle for storage as they asserted, and that Mr Choudry was controlling the use of that land throughout. He asserted his right to possession if the Respondents attempted to access the land.

58. Fourthly, the Respondents had let 593 by 2017, and would not have been able to access the Green Land or the Triangle without disturbing their tenant. They would likely have been able to find easier to access storage elsewhere. Although it was asserted that the tenant had been using the Triangle, the tenant did not give evidence. I therefore reject that suggestion.

59. I therefore find that Mr Choudry has been the only person using the ground floor of the Triangle, and although there was a period between about 2016 and 2018 when the Respondents could have accessed it via an internal door, in practice Mr Choudry asserted control over that area and they did not do so. Accordingly, I find that Mr Choudry has been in adverse possession of the ground floor of the Triangle at all material times since at least 2005. Disposal

60. It follows from the finding that it is Mr Choudry who has been in possession of the Rectangle and the Triangle and not the Applicant that I must direct Land Registry to cancel the Applicant’s application. However, I will also record my finding that the Third Respondent, Mr Choudry, has been in adverse possession of all of the disputed land since 2005.

61. Should either party wish to claim costs from the other, an application must be made in accordance with the directions in the order. Judge Tozer K.C. Dated this 19th day of December 2025 By Order of The tribunal