Case No.:

PC-REV-67-1958 (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Pre custom .n Berber and Shendi—Conti cultivator by custom of mudaira pre-empts although not registered—Pre Ordinance 1928, s.5. (C) Custom_Mudaira—Berber and Shendi—Samad, sagia’s headman, determines number of uds owned and locates accordingly—Effect on pre-emption Land Law—Mudaira custom in Berber and Shendi_Pre.emption_Contiguity emption Ordinance 1928, S. 5 (c) Pre-emption-—Adjoining owner in same sagia—Pre-emption Ordinance 5928, S. 5 (c)— Includes owners with “nearness and unity in the same sa8ia”

Plaintiff brought a claim for pre-emption on a sale of a sagia plot from first defendant on grounds that he was an “adjoining owner” within the meaning of Pre-emption Ordinance 1928. S.5 (C). Although plaintiff was not the registered owner of the adjoining plot, he had been cultivating it according to the custom of Berber and Shendi districts known as mudaira whereby the samad, headman of the sagia, allocates plots for cultivation in the sagia without regard to registration in order to make plots owned by one man contiguous for efficient cultivation.
Held: A man cultivating a plot in accordance with the custom of mudaira although he is not the registered owner of that plot nevertheless has pre emption rights to the sale of the plot adjoining his cultivation.
Obiter dictum: “ . . . adjoining owner on the sale of irrigated land.. in the same sagia,” Pre-emption Ordinance 5928, S. 5 (c), includes not only the contiguous owner but also owners with “nearness and unity in the same sagia.”

Judgment

(PROVINCE COURT)

ABDALLA EL HASSAN HAMZA v. SAFIYA ALI ABU AL

AND ANOTHER

PC-REV-67-1958 (Ed Darner)

Osman El Tayeb P.J. November 26, I958: —This is an application for revision from decree of District Judge, Ed Darner, dated May 31, 1958, dismissing plaintiff’s claim to exercise right of pre-emption on sale of land by first defendant to second defendant.

The land sold comprises one ud undivided in s No. 2 and one ud undivided in share No. 8 and the plaintiff is the registered owner of one ud undivided in share No. 12, all in sagia No. 38, El Timeirab village. The purchaser has no registered share in the whole sagia The learned District Judge dismissed the case on the ground that the plaintiff is not an adjoining owner within the meaning of Pre-emption Ordinance, s. (c), and so no right of pre-emption exists in his favour. He said that the shares as they appear on the register, being Nos. 2, 8 and 12, are not adjoining shares.

On hearing the parties I found from them that the two uds sold, though appearing on the register in two different shares, have been cultivated as one piece of land, and that the one ud of plaintiff has been cultivated as one piece with other lands of his cousins, and that the piece of land sold and the piece including the one ud of plaintiff are contiguous; that they touch on each other and have one boundary line. This is what is actually happening on laud as a result of mudaira, which has been going on and recognised by the co-owners for a long time

It is easy, therefore, to say that they are, adjoining owners within the meaning of Pre Ordinance 1928, S. (c). The section provides that the right of pre-emption exists in favour of “an adjoining owner on sale of irrigated land where the land sold and the land of the adjoining owner are both included in the same sagia or other unit of irrigation.”

The system of registration of land in Shendi district as’ well as in Berber district divides the sagia into shares, normally each share is demarcated as a separate and divided unit inside the sagia, and the shares are numbered and shown on the register against the names of the owners. But the holding of the shares and their cultivation in most cases is different from what appears on the register. The co-owners adopt the system of mudaira. At the time of cultivation the samad of the sagia, with the agreement of all the owners, measures to each owner or to each group of owners, e.g., members of one family, or to a tenant holding lands of two or more owners, the number of uds that he owns or holds in one place as one piece and to be cultivated as one piece. This is done without reference to the division of shares shown on the register. The result of this system, which is known as mudaira, is that the shares, as numbered and shown on the register, are given no recognition by the owners, and that the owner who owns a number of uds, each one of them appearing in the register in different shares, on land holds and cultivates the same number of uds as one piece of land allotted somewhere in the sagia, according to the mudaira. The mudaira is, no doubt, useful for the proper cultivation or other enjoyment of the land.

It is, therefore, essential in a case of pre-emption to inquire and find out whether there is mudaira and whether that mudaira places the parties as adjoining owners. It is not right to rely only on the register, where the people by custom arrange their holdings in a manner inconsistent with it.

I have had some doubt as to whether “adjoining” meant contiguous and touching, when the land sold and the land pre-empting upon were both included in the same sagia or other unit of irrigation. In other words, whether lands registered in shares not contiguous and touching or held in pieces not contiguous and touching but included in the same sagia or other unit of irrigation are not “adjoining” within the meaning of the section. 1 have doubt as to this, because the sagia is considered to be the unit of regis- -ration and it is also the unit of irrigation. It is normally irrigated by a dulab made by all the registered owners jointly or made by the samad on their behalf, and as the water passes from one part of the sagia to the other, one part has the benefit of servitude over the other or is subject to a servitude to the other. On this understanding I take “adjoining” to mean not only contiguity and touching but also nearness and unity in the same sagia, that a co-owner in the same sagia whose share or holding in cultivation is separated from the share or holding sold has the right of pre-emption existing in his favour.

However, in the present case the two uds sold and the one ud of the

plaintiff are found to be contiguous and touching according to mudaira

and actual cultivation and so upon this 1 decided that plaintiff is entitled to right of pre-.emption.

The decree of District Judge Darner, dated May 31, 1958, is set aside and decree in preemption is passed in favour of applicant. Applicant has

paid the purchase price, to wit, £S.15 and handed it over to the purchaser in court.