Neelo Farr v Zeenat Bi

1. The two matters that have been referred to the Tribunal are the Applicant’s two applications for adverse possession of the same parcel of land adjoining 76 High Street, Burton-on-Trent DE14 1LD (“the Disputed Land”). The first is an application on form ADV1 dated 23 rd January 2023; the second is an application on form AP1 dated 7 th March 2023. Both were on entered on the day list at HM Land Registry, and so are treated as having been made, on 15 th March 2023.

2. The Applicant avers that she and her predecessors in title have, via themselves and their tenants, been in adverse possession of the Disputed Land since 1986. Her primary case is that she is entitled to be registered as proprietor of the Disputed Land under paragraph 18 of Schedule 12 to the Land Registration Act 2002 , on the basis that she can show 12 years’ adverse possession of registered land prior to the coming into force of the Land Registration Act 2002 (the AP1 application). Alternatively, she brings her case under Schedule 6 of the Land Registration Act 2002 in reliance on 10 years’ adverse possession ending on the date of the application, together with 10 years’ reasonable belief (the ADV1 application).

3. I begin by considering whether the Applicant can demonstrate adverse possession of the Disputed Land, and, if so, for what period. I remind myself that the burden of proof is on the Applicant, and that the standard of proof is on the balance of probabilities.

4. There is no dispute as to the relevant principles. Briefly, adverse possession requires both factual possession and an intention to possess: (a) factual possession “ signifies an appropriate degree of physical control… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstance, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" [Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-1, cited with approval in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30 ]; (b) an intention to possess is the intention “ to exclude the world at large, including the owner with the paper title… so far as is reasonably practicable and so far as the processes of the law will allow” [Slade J in Powell at 471-2, cited with approval in Pye ]. Lie of the land

5. The Applicant is the registered proprietor of 76 High Street, Burton-on-Trent, registered under title number SF448175 (“Number 76”). The Respondent is the registered proprietor of 75 High Street, Burton-on-Trent, registered under title number SF418292, title plan extract below right (“Number 75”). Number 76 Number 75

6. As can be seen from the title plan extracts, Number 76 forms a horseshoe shape around Number 75. The part of Number 76 to the left of Number 75 (when viewed from the road) is a ground floor alley (“the Alley”). When the Alley draws level with the end of the building on Number 75, it opens out to the right behind Number 75 (“the Courtyard”). There is the frame of a gate at the end of the Alley, although no gate has been there for many years (“the Gate”).

7. The Disputed Land is the parcel of land at the rear of Number 75. This is shown in yellow on the Site Plan below. The Alley can be seen to the right of Number 75, and the Courtyard below the Disputed Land. Site Plan

8. It is not in dispute that the Disputed Land was previously a toilet block. The toilet block was demolished (by/on behalf of the Applicant) in 2022, and a breeze block construction has been erected in its place (by/on behalf of the Respondent) since. Before After Who’s who

9. At the outset, it is helpful to explain the various people involved, alongside a basic chronology of the ownership/occupation of the properties. The Applicant/Number 76

10. The Applicant is the trustee of the Saee Schnaz Malik Trust (“the Trust”), of which her sister, Taaj Tiwana, is the beneficiary. The reason for the Trust is because Ms Tiwana suffered injuries in a car accident and is unable to manage her finances.

11. The Applicant and Ms Tiwana both attended the hearing and gave oral evidence. The Applicant is not local and accepted that she was not able to give much direct evidence in relation to the Disputed Land. Really, the Applicant’s main witness is Ms Tiwana.

12. Their brothers, Aslam Javed (“Aslam”) & Liaquat Javed (“Liaqat”), provided ST1s but did not attend to give oral evidence. The same is true of Yasmin Malik, Ms Tiwana’s daughter. I also note their father, Mr Saee (deceased), as he features in the evidence.

13. Number 76 has been in the Applicant’s family since 1986. Initially, it was rented by Mr Saee & Aslam, who then purchased it on 30 th November 1989. They ran a nightclub, largely on the land at the rear of the Courtyard (that is, to the west) until 1991. That land has since been sold off. Number 76 was a kebab shop. On purchasing it, they immediately rented it out. It was rented out from 1989-2000 (approximately) and from 2007-2017 (approximately). It passed through the ownership of Liaqat and other family members until the Trust became the owner in 2018. The Respondent/Number 75

14. The Respondent has been represented throughout by her son Mr Mahmood. She did not attend the hearing. Mr Mahmood had only provided a witness statement in relation to an earlier application to strike out, which did not contain relevant evidence from within his own knowledge in relation to the adverse possession, and he was not permitted to give oral evidence.

15. The Respondent also relies on the evidence of the following: (a) Zahid Ali, brother of the Respondent, and owner of Number 75 from 1999-2011. Number 75 was a taxi business and latterly a kebab shop from 2001-2011. Zahid Ali gave oral evidence and was probably the Respondent’s main witness; (b) Mohammed Nawaz, who worked for Zahid Ali’s taxi business from 2001-2011. He also gave oral evidence; (c) the Respondent/Zahid’s brother Subhat Ali, owner from 2011-2019 (approximately). He did not attend to give oral evidence; (d) Shahid Bashir, Subhat’s tenant, who ran a kebab shop from 2011-2016. He did not attend to give oral evidence; (e) Neil Jordan, who carried out maintenance work. His evidence as to when he carried out this work is somewhat hazy, as further explained below; and (f) Mr Boo Chaudhry, owner of Number 74, and recently involved as an agent for Number 76. However, he accepted he did not have any direct knowledge of the use of the Disputed Land. Outline of the dispute

16. The parties appear to have fallen out when both began working on their properties in 2022/2023. As is often the case, much of the evidence focuses on the falling out, that is, recent incidents. However, given that the Applicant relies on adverse possession going back to the 1980s, and made her application swiftly in early 2023, this is likely to have at best limited relevance.

17. This evidence includes allegations of poor conduct, going both ways. I note in particular that the Applicant accuses the Respondent (or at least people on her behalf) of witness intimidation, which appeared from the written evidence to be offered as a reason for her brothers not attending to give oral evidence. I had concerns that the allegations had not been properly particularised. In any event, under cross- examination, Ms Tiwana made clear that her brothers themselves had not been intimidated. By way of a response, Mr Mahmood tried to make reference to other reasons why the witnesses did not attend, albeit these allegations did not feature in the evidence at all. None of these allegations are relevant to the issues I have to determine.

18. The dispute between the parties appears to be wider than just the Disputed Land. In particular, the Respondent and her witnesses make repeated reference to the use of the Courtyard for storing bins, which the Applicant denies. As I explained during the hearing, the Tribunal’s jurisdiction is limited to determining the matter that has been referred by HM Land Registry, that is, the question of adverse possession of the Disputed Land. This means that evidence relating to the bins will only be relevant insofar as it has a bearing on use of the Disputed Land (or possibly credibility).

19. It also means that there will likely be further issues for the parties to resolve beyond these proceedings. In that regard, the parties are encouraged to view these proceedings as an opportunity to draw a line under their previous differences and try and settle any further disputes amicably.

20. As I have explained, the Disputed Land was formerly a toilet block. In essence, this is a dispute about access to and use of the toilet and/or whether any use was with permission. The evidence Layout

21. In 1986, the toilet block was accessed via the Alley & Courtyard. The ground floor was as shown on an architects’ plan dated 24 th July 1987, extract below. The Disputed Land is the toilet block, comprising two WCs, which I have indicated with a red circle. 1987 plan

22. The Applicant’s case (largely from Ms Tiwana’s evidence, but also supported by Aslam and Liaquat) is that Mr Saee sought planning permission to alter the layout. In going through the process, it was discovered that at least part of the side yard was owned by an unrelated third party. He did not pursue the application/alteration, and ultimately the nightclub was shut down a year or so later due to a lack of fire exit. I note in passing that much was made by Mr Mahmood as to whether Mr Saee positively withdrew the application. This might have a bearing on reasonable belief, but I cannot see that this goes to the question of adverse possession itself.

23. Then, in 1987/88, Mr Saee and Aslam bricked up the doors to the toilets from the Courtyard and made a new access by way of an inner corridor from Number 76 (“the Corridor”), to avoid the need to go outside to access the toilets. Other works were carried out on the toilet block, including installing a new toilet and sink, plastering, painting, replacing the roof, tiling, installing a window and later a double-glazed window.

24. There is no contemporaneous photographic evidence from the time the works were carried out, or indeed the any time soon after. However, the Applicant relies on photographs taken as part of a dilapidations survey in 2016/17 as illustrating the changed layout. There are also consistent photographs from the 2000s, but the quality is not as good and so I do not reproduce them here.

25. The most pertinent photographs from 15 th September 2016, including their descriptions, are below. I refer to them later by number.

26. The most pertinent photographs from 8 th May 2017, including their descriptions in the report, are below. I refer to them later by number.

27. In 1989, Mr Saee and Aslam rented out Number 76. A copy of that lease is available. It describes the land as the land and buildings “ known as the “Karachi Kebab House 76 High Street… shown edged red on the plan annexed hereto ”. The plan is reproduced below. 1989 lease plan

28. On the Applicant’s case, the lease comes after the change of layout, and so it might be thought that the plan would reflect the change. Mr Mahmood makes the slightly separate point that it does not show the toilet block as forming part of the leased premises.

29. I have some difficulty marrying up this plan either to the 1987 plan, which shows the layout before the change, or to the photographs above, which show the layout after the change: it does not obviously accord with either. It is very clearly marked not to scale, and in any event is evidently not as accurate as the 1987 (architects’) plan. In my judgment, it shows only the general extent of the leased premises, and cannot be relied on as anything other than a rough guide. I do not consider it is evidence that any change of layout did not take place until after 1989 and/or as definitively showing that the toilet block was not part of the leased premises.

30. The Respondent did not, as far as I could see, expressly dispute the Applicant’s case as to the change of layout in her written case. I asked Mr Mahmood several times during the hearing if the Respondent disputed the evidence regarding the change of layout, his focus being more on the use of the toilet block from 1999. I am not sure Mr Mahmood ever gave a clear answer, but there does not appear to be any challenge to the assertion that, in or around 1987/88, doors directly onto the Courtyard were blocked up and the door visible on Photograph 9 was installed. However, in cross- examination, one of the Respondent’s witnesses – Mr Zahid Ali – did deny the existence of the Corridor, and so I take it that this is in dispute.

31. Mr Ali’s evidence was that Number 75 used the toilet in the toilet block, that is, on the Disputed Land. In cross-examination, Mr Ali’s evidence was that the toilet was accessed via the door in Photograph 9, but he did not accept that the door led onto the Corridor. His evidence was that, after entering the door, he would turn right to access the toilet, and that, straight ahead of the door, there was a brick wall, meaning there was no access to the inside of Number 76. He said the area was covered, but described it as a canopy.

32. Mr Ali was shown a number of photographs. He did not accept that Photographs 6 & 8 were both of the Corridor. He was also unsure whether Photograph 14 shows the toilet in the toilet block – he said the toilet room was a lot bigger than this.

33. I did not find Mr Ali to be a reliable witness for the following reasons: (a) there is no supporting evidence of the layout described by Mr Ali, that is, the existence of a brick wall straight ahead of the door, on the plans, photographs, or in any of the other witness evidence; (b) the first time it became clear that anyone on the Respondent’s side denied the existence of the Corridor was during Mr Ali’s cross-examination. This is a significant point of dispute and it is surprising that it had not been flagged up sooner; (c) it is hard to see why works were carried out to the toilet block in 1987/88 if not to provide an internal access from Number 76. It may be that works were carried out in stages, and that there was a time when the area next to the doorway was covered but the Corridor had not yet been fully created, but (i) this would have been for some time, given Mr Ali’s knowledge begins in 1999; and (ii) neither Mr Ali nor any of the other witnesses give any evidence of this happening, which presumably at least some of them would be able to do, had they been using the toilet as alleged and had any changes taken place; (d) I find Mr Ali’s position in relation to the photographs to be unsupportable. The photographs are from an independent dilapidations survey, which presents a full photographic record of Number 76. I bear in mind that they were taken some time after Mr Ali’s ownership, but, as noted above, there is no evidence of any changes to the layout taking place. Notwithstanding Mr Ali’s doubts, I am satisfied that Photographs 6 & 8 both show the Corridor, and that Photograph 14 shows the toilet in the toilet block.

34. It can be seen by comparing the 1987 plan with the later photographs that the layout has changed. The evidence as to how this happened is that put forward by the Applicant. The only real challenge to this is Mr Ali’s evidence in relation to the Corridor/brick wall, which I do not accept for the reasons given above.

35. I find that the layout did change as set out by the Applicant. Most pertinently, this means that, in 1987/88, access directly from the Courtyard to the Disputed Land was blocked off, and was instead via the Corridor, either entered from the Courtyard or from the inside of Number 76. Gate

36. Much of the evidence concerned the Gate located at the end of the Alley. I can however deal with this briefly.

37. The Applicant’s case is that this was installed in 1990. It is accepted that the Gate itself has been stolen, although the frame remains. The Applicant avers that it was locked throughout the 1990s and some of the 2000s, with only the owners/occupiers of Number 76 having a key. Her case is that access to the Courtyard, and consequently the Disputed Land, was therefore restricted.

38. The Respondent did not accept that the Gate was always locked, with some of her witnesses giving evidence that they could access the Courtyard freely. Some of the photographs from the mid-2000s show the Gate open, or off its hinges and propped against a wall. Mr Mahmood also cross-examined Ms Tiwana on the basis that other people owned oil canisters and bins on the Courtyard, albeit this was denied.

39. The only evidence of the Gate always being locked is that of Ms Tiwana. It is accepted that she was not always at Number 76: at times it was tenanted (albeit I note she says she visited frequently); at times she lived abroad (2008-2016). There is no evidence from the tenants themselves, for example that they always kept it locked and/or permitted others access. Whilst it may be the case that it was locked in the early years (when the nightclub was still in operation) and/or that it was supposed to be locked at all times, the Applicant is unable to provide cogent evidence that the Gate was in fact always locked and/or that access to the Courtyard was controlled by the owners/occupiers of Number 76.

40. I am therefore not satisfied that the Applicant can show adverse possession of the Disputed Land based on restricting access to it by locking the Gate to the Courtyard. Use of the toilet block Respondent’s case

41. I set out the evidence from the Respondent’s witnesses as to the use of the toilet block. It is convenient to do this in the order in which they gave evidence at the hearing.

42. Mr Jordan gave evidence first. His written statement is brief. It states, “ I carried out maintenance works at 75 High Street on many occasions over the years. I first was contracted in the late 90s. I can confirm I installed a new toilet and wash basin in the WC in the outbuilding at the back of no.75 High Street ”.

43. In cross-examination, Mr Jordan explained that when he first worked at Number 75 it was a shell, full of pigeons, and that at the back it was just open, without complete walls or a complete roof. He said he installed the toilet quite a while after he first went there, after it had been made into two flats and one shop.

44. Mr Jordan struggled to assist the Tribunal with dates or timeframes. For example, he said the first job was a long time ago, maybe 5 or 6 years before Covid, but then said he “ couldn’t tell you when Covid was ”. He later said it was probably the 1990s when he first worked there, in line with his written evidence. However, as there is no suggestion that he did any works for anyone prior to the Ali family’s ownership, and as Zahid Ali did not purchase Number 75 until 1999, this seems unlikely.

45. Mr Jordan was asked to look at Photographs 6, 9, 11 & 14. He did not recollect the Corridor in Photograph 6. He recognised the back of the building in Photograph 9. In relation to Photograph 11, he said the new uPVC door visible to the right of the pipes led into the kitchen, and that the toilet he fitted was through that door and to the left. He later said that, once this was done up, you would go through that door, but before that you had to go round the back to the toilet, albeit this is slightly at odds with him not recollecting the Corridor.

46. Mr Nawaz gave evidence next. He worked as a taxi driver from 2001. His statement states, “ We had a front office, seating area and a kitchen inside the main building. We did not have a toilet inside and our toilet was in a small building joined to the back of the main building. This was maintained by our bosses including the owner Mr Zahid Ali, who also paid the bills for both the main buildings and outside toilet. All the mains and water supply was connected together for both buildings. It was cleaned by all us staff on a rota system. We went through the yard to use the toilet. The yard was always open for us to go through and sometimes our neighbours tenants and workers from Turkish Delight [Number 76] also used it too when we were on breaks in the yard etc. Turkish delight were already tenants of no.76 and had been there for a few years before us. They were aware the toilet belonged to no.75 and us, as the tenants because they would ask our permission as to whether if it was ok for them to nip to our toilet. We usually let them as we were all on friendly terms… ”.

47. At the start of his cross-examination, Mr Nawaz was asked to described accessing the toilet. He described it as going down the Alley, then turning right and turning left. It is noteworthy that this accords with Mr Jordan’s evidence as to where he installed a toilet. Although there was some suggestion that he may have confused left and right, I cannot see how this can have happened: his evidence was of turning one way and then the other, and it is not possible to turn left at the end of the Alley.

48. When he was asked about Number 76 asking permission, he said they “ came in and said something was wrong with toilet or something ” (or words to that effect), but then said he did not know why they asked for permission. He said he saw them use the toilet twice. I note that this makes some sense if Mr Nawaz is talking not about the toilet block, but about an alternative toilet.

49. When he was asked to look at photographs, he recognised the door in Photograph 9, saying you could just push it, but he could not remember the Corridor.

50. Mr Nawaz’s answer to multiple questions, particularly when he was being pushed on a point, was “ I can’t remember all that ”. Given the number of times he gave this answer, I am left with some doubt as to how much he genuinely can remember. Overall, I was left with the impression that he had come to the Tribunal to say that he had used the toilet without hindrance and that Number 76 had asked for permission to use it, rather than to assist the Tribunal more generally. That said, there is at least the possibility that he was giving reliable evidence about a toilet that was not in the toilet block at all.

51. Mr Zahid Ali gave evidence next. He was the owner of Number 75 from 1999-2011. His witness statement states, “ Number 75 did not have an indoor toilet and the outbuilding was there for the purposes of a WC. It was accessed through the yard…. After I purchased the property, I renovated the building at no.75 along with the outbuilding where I replaced the tiles, toilet and wash basin ”.

52. In cross-examination, Mr Ali was insistent that the toilet was in the toilet block, accessed via the door in Photograph 9. He denied there was a toilet where Mr Jordan said he had installed a toilet, but said that might have happened after his ownership. He also gave evidence that he put the window in and fixed the toilet, but used someone other than Mr Jordan to do it.

53. I have already found that Mr Ali was not a reliable witness. In relation to this particular issue, I note that he was insistent the toilet was in the toilet block, but did not accept that Photograph 14 was a photo of the toilet he was talking about. There is no supporting evidence in relation to his assertions regarding the layout of the inside of Number 75, nor the installation of the window (which is something he had failed to mention in his written statement).

54. Mr Chaudhry gave evidence but accepted that he did not have any direct knowledge of use of the toilet.

55. The evidence of Mr Subhat Ali and Mr Bashir relates to the period after 2011 and essentially mirrors what Mr Zahid Ali and Mr Nawaz said about the period before then – that Number 75 had a toilet accessed from the outside which the neighbours would also use. They did not attend to give oral evidence and so the weight to be attached to it is therefore limited. Applicant’s case

56. The Applicant’s position is that only Number 76 used the toilet block. There is no supporting evidence from the occupiers of Number 76 in this regard, and, as I have already noted, Ms Tiwana’s evidence of what was happening on the ground is somewhat limited.

57. The Applicant relies on other points in support. First, she relies on Photograph 9 as showing that there was no handle to the door providing access from the Courtyard to the Corridor. The lack of handle does not necessarily mean that access was not possible. However, it does seem odd that Number 76 would allow access onto the Corridor through a door that could simply be pushed open.

58. She also relies on the difference in roofline between the toilet block and the other buildings on Number 75, as can be seen on Photograph 11. References to Number 75’s outbuilding could be referring to the taller part, rather than the toilet block itself. This accords with the evidence of Mr Jordan and Mr Nawaz as to where the toilet was.

59. Finally, it was argued that, when roofing works were carried out, only the taller part was covered by a membrane, which the Applicant submits can be seen on the photograph below, suggesting that the Respondent did not consider the toilet block to be part of Number 75. Mr Haynes tried to put this point to Mr Ali, but these works postdate his ownership and he was not involved. In any event, the photograph is not clear enough for me to safely draw any conclusions as to whether the membrane was. Membrane Conclusion

60. I have already found that, from 1987/88, access to the Disputed Land was via the Corridor, either entered from the Courtyard or from the inside of Number 76. Based on the layout alone, I have to say it seems unlikely that the toilet would have been used by Number 75.

61. The Respondent’s evidence of use is weak. Mr Jordan & Mr Nawaz both gave evidence that the toilet they were giving evidence about was not in fact in the toilet block at all. The other written evidence refers to outside access/outbuilding, which could just as easily refer to the taller extension as to the toilet block. The only witness to give evidence of use of the toilet in the toilet block is Mr Ali: even that is ambiguous, given the issue of the photograph, and I have already found that he was not a reliable witness.

62. For all of these reasons, I do not accept that Number 75 used the toilet. Discussion

63. Having determined the relevant disputes of fact, I now turn to consider whether the Applicant can establish adverse possession of the Disputed Land.

64. Although much of the focus of the evidence was on the Gate and the use of the toilet, it seems to me that in fact the layout is the most important point. In 1987/88, the Applicant’s family completely changed the way in which the Disputed Land was accessed, such that it could only be accessed by going through the building on Number 76 (either from the front, or through the door shown in Photograph 9). It was effectively enclosed as part of the building on Number 76. In my judgment, this shows both a sufficient degree of physical control of the Disputed Land, and an intention to exclude the world at large.

65. As this dates back to 1987/88, the Applicant can rely on 12 years’ adverse possession under the transitional provisions of the Land Registration Act 2002 . In the circumstances, I need not go on to consider the alternative application under Schedule 6 and the issue of reasonable belief.

66. I note for completeness that part of Mr Mahmood’s challenge was to query why it had taken the Applicant (or her family) so long to make an application. If anything, this goes to reasonable belief, but I cannot see it has any bearing on adverse possession. Conclusion

67. For the reasons given above, I will direct the Chief Land Registrar to (a) give effect to the Applicant’s AP1 application for alteration of the register; and (b) cancel the Applicant’s ADV1 application for adverse possession.

68. I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Respondent pays the Applicant’s costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case. My preliminary view is therefore that the Respondent should pay the Applicant’s costs of the proceedings (from the date the matter was referred, 4 th January 2024), to be summarily assessed if not agreed.

69. Any application for costs should be sent to the Tribunal and the other side by 5pm on 25 th September 2025, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Thursday 28 th August 2025 Laura D’Cruz By Order of The Tribunal