(COURT OF APPEAL)·

OSMAN OMER and others vs. GABRALLA MOHAMMED IDRIS and others

 AC-Revision-18-58

Revision

Principles

  Native law and custom- Servitude-Nature of Right of Hag el Ard-Civil Procedure-Limitation of Actions-Time of Vesting of a right of Hag el Ard-Prescription and Limitation Ordinance 1928

 By custom in the Merowe District of the Northern Province of the Sudan and owner of land planted with date trees by another in entitled to a share called Hag el Ard amounting where the land is fertile to one-half of the fruit of the trees and whre the land is fasad to one-third of the fruit. This right arises, however, only when the trees habe matured and begun to yield, there being no right in the landowner to share in the trees themselves apart from their fruit; and therefore no period of limitation can begin to run against the landowner until that time.

Judgment 

    Advocates: El Rashid Nayel…for the Applicants

                                                     Other than Eisa Osman Omer

                    Hassan Koheil….for the Respondents

                                                      Other than Omer Idris and

                                                          Suleiman Idris

The Applicant Eisa Osman Omner and the Respondents Omer Idris and Suleiman Idris appeared in person.

9th September 1958. M.I.El Nur J. :-  This is an application for revision of the order of the Province Judge, Northern Circuit made by Osman El Tayeb P.J. in PC- Revision-106-57 dated 6th February 1958.

The facts of this case are briefly as follows: Respondents are the registered owners of 1 Saham,1 Saham, 4 Sahams respectively in Sagia 11 El Dueim Village, Merowe District. First Applicant is registered owner of 5 Sahams in the same Sagia. Over 40 years ago 1st Applicant planted 33 date trees in the 11 Sahams registered in the naes of Respondents. These 33 date trees matured and gave yield over 30 years ago since which date thery were registered exclusively in his own name.

After the flood of 1946, 2nd ,3rd, 4th and 5th Applicants, sons and daughters of 1st Applicant, who are not –co-owners in the Sagia, not on behalf of their father, but in their own right also planted 34 date trees in the 11 Sahams registered in names of Respondents. These are still immature and they have nto yet therefore been registered.

In 1954 1st Applicant instituted a civil suit claiming that he acquired title by prescription to the 11 Sahams registered in the name of Respondents having been in peaceable public and uninterrupted possession thereof for over 40 years. He could not establish his claim and his suit was therefore dismissed. Immediately afte that Respondents instituted Merowe Es-CS-163-56 asking for a declaration that they are entitled to half of the 33 mature date trees planted by and registered in the name of 1st Applicant and the 34 yong date trees planted in the names of 2nd ,3rd ,4th , and 5th Applicants, which habe not yet reached registrable age, by virture of the local custom of Hag El Ard.

On heaing the evidence of both parties the following facts were established:

(a)        According to local custom the landowner is entitled to a share, called Hag El Ard, in any date tree planted by another in his land.

(b)       That share of Hag El Ard varies according as to whether the land is fertile or fasad: In the former case Hag El Ard amounts to a half share of the fruit of the planted tree and in the latter case to one third share of it.

(c)        The 11 Sahams on which applicants planted the trees the subjectmatter of the suit, are fasad land.

(d)       That thae 33 date trees now registered int eh name of 1st Applicant (Osman Omer) were planted by him over 40 years ago and started to yield over 30 years ago sinnce which date they were exclusively registered in his name.

(e)        The Respondents never claimed nor had 1st Applicant ever given to them any shre in the crop of those 33 date trees in respect of hag El Ard.

(f)         That the 34 young date trees were planted by 2nd and 5th Applicants in 1946.

On the above evidence the learned District Judge came to the conclsion that Respondents’ Right of action in respect of Hag El Ard in the date trees in dispute had extingiushed under section 9 of the Prescription and Limitation Ordinance 1920, since the 33 trees registered in the name of 1st Applicant wre planted by him and gave yield over 30 years ago, and the 34 yong date tees wre planted by 2nd and 5th Applicants in 1946, i.e. over 10 years ago. Consequently the District Judge issued his decree on 15th September 1957 dismissing Respondents’ claim.

On 21st September 1957 Respondents applied to the Province Judge for revision of the District Judge’s decree. Upon hearing of that revision the learned Province Judge upheld the District Judge’s decree as far as the 33 date tees go which were registered in the name of Osman (1st Applicant) and reserved the decree in respect of the 34 young trees planted by 2nd to 5th Applicants on the ground that the said tees were planted after the flood of 1946, i.e. October or November 1946 and that since Respondents initiated their action claiming Hag El ard on those trees by their petition dated 1st January 1955,i.e. before the expiration of complete 10 years from the date of their planting, their right was not extinguished under section of the Prescription and Limitation Ordinance.

The learned Province Judge therefore proceeded to calculate the Hag El Ard share of the Respondents in those 34 young trees in the following devious manner.

“In deciding their (Respondents) share in the date trees take into consideration their share in the land, and the shares of the owners of the treess, and the amount of land occupied by the trees. The one occupied by the the tees accoding to admission of the both parties is 8.5 Sahams. The total number of teees is 67 (including the 33 adult trees of 1st Applicant). So one Saham is occupied by approximately 8  trees. Out of 8.5 Sahams the registered share of Defendants (Applicants) is 3 Sahams. So 3.5 Sahams is the property of  Plaintiff (Respondents), the number of trees in 3.5 Sahams  is 28-half of the whole date trees are the old on which Plaintiffs (Respondents) habe nor share, and so they are entitled to a share in the other half; that is half the 28 trees occupying tier land, say 15 trees. The land is fasad, so their proportionate share is one third of 15 trees.”

Accordingly the learned Province Judge issued his decree on revision dated 6th  February 1958 reversing the District Judge’s decree of 15th September 1957 and declaring Respondents’ right to one-third of 15 date trees in Sagia 11 El Duem Village held by Respondents (Applicants).

On 15th February 1958 Applicants applied to this Court for the revision of the Province Judge’s decree of6th February 1958. 1st Applicant namely Omer Osman , was certianly not aggrieved by that decree since it confirmed the District Judge’s decree as far the 33 adult tees registered in his name the interested applicants therefore are Nos. 2,3,4,5 and 6 only.

Advocate El Rashid Nayel, who represented the said Applicants before us, pleaded that the Province Judge was wrong in deciding that Respondents’ right of action in respect of Hag El Ard  in the 34 young date trees was not barred by lapse of time since the said trees were planted before  and not after the flood of 1946 and Respondents did not institute their action until June 1956.

The learned Advocate further said even if Respondents’ right of action did not lapse the calculation of the Respondents’ share was clearly not correct.

In our view whether the said 34 trees were planted before or after the 1946 flood is totally immaterial in this case. The land owners’ rith of Hag El Ard in a date tree planted on his land arises only after the maturity and yield of that tree. It is a right to a share the yield of the tree.

Rather than a snare in the stem of that tree. if after the maturity of a tree the landowner fails to clami his right of Hag El Ard in its crop for 10 years or more his right of action to clami that right would be extinguished by lapse of time as the Court rightly decided in the case of the 33 trees registered in the name of 1st Applicant.

It was admitted before us that the 34 date trees in dispute have not yet fully matured, and that noly a few of them started to yield on a small scale. Therefore the right of the landowners to clami their customary share of Hag El Ard in thse trees is still in tis infancy. In our view therefore the learned Province Judge was quite correct in reversing the District Judge’s decision in respect of these 34 young date trees and declaring that the owners of the land upon which those 34 stood are according to local custom, entitled to one-third share of the fruit of each these trees. We however agree with the learned Advocate for Applicants that the manner in which the learned Province Judge elected to calculate the share of Respondents in those trees was not clear.

It was admitted before us that though the 11 Sahams registered ion the names of Respondents and the 5 Sahams registered in the name of 1st Applicant formed on eparcel and aapeared in the register as undivided shares yet they are in fact partitioned by agreement and each Respondents and 1st Applicant knows where his share lies and possessed it as divided. The learned Province Judge said it was admitted before him that those 34 date trees stood in 8.5 Sahams out of those 16 Sahams but it is not clear who are exactly the owners actually in possession of those 8.5 Sahams according to the agreed partition. In our opinion therefore it is safer to say that the owner of the land on which any of the 34 trees in question stood is entitled to one-third of that tree by virtue of the customary right of Hag El Ard, and Applicants 2,3,4, and 5 are jointly entitled to two-third of each such tree by vitue of plantation or Hag El Ard ot one-third of any of the 34 date trees planted by Applicants in the land registered in their (Respondents’) names in Sagia 11 El Duem Village, Merowe District.

We make no order as to costs.

9th September 1958. Babikir Awadalla J. : - I concur.

(Revision Allowed in part)