Civil Procedure - Parties - Government a necessary party where cultivation
rights to government land in dispute.

Land law - Gusad - Government ownership of riverbed and corresponding

sagias whether appli~ble - Whether some similar custom applies.

Land law - Nile lands - Right of cultivation of Government owned seluka
~ - Effect of prior agreement prior to settlement allocating
rights to land - Effect of gusad or other custom.

Native Law and Custom - ~ - Government ownership of riverbed and
corresponding sagias- Whether applicable --Whether some similar
custom applies.

1. A claim to unregistered selulca. land, on the grounds that the
same goes with high land on the bank in the possession of the
claimant, or that the seluka. usque !:!!. medium ~ aczy.ae belongs

to the riparian owner, cannot be supported in an area in which the
unregistered seluka land and the· corresponding sagias belongs to
the Government. Any claim to any right over such seluka. land could
only be based on custom, which might be shown by agreement prior to
set>tlement allocating rights to the land.

2. The Government is a necessary party upon the hearing of arry
such claim.

,i:1elmett. : C.\1 •• 'This is an appeal from ,the judgment <>f

the High Com.t, Northern P,rovince, in. a suit in which the plaint iffs',
the owners of Sagia No.7, Barageba Island, claimed the sole right of
cultivation in the seluka land situated between sagia No.7, Barageba
Island and the o.pposite east bank of the river Atbara, the east bank in

* Court s Bennett, C.J ~, Mavrogordato, D.J., and Dardiri Mohed Osman, D. J.

question being in the possession of Abde1 Aziz Mohamed, the first defendant
in the suit, under a lease from the Sudan Government. The remaining defen-
dants are persons Hho have been let in to cultivate parts of the said
se1uka land by administrative order.

\'Thile the suit ~tas thus between individuals, there is lying behind
the dispute the apparent fact that, certainly since 1905, and possibly_
since time immemorial, the 'llest bank of the river Atbara opposite Baz-agoba
Island has been cultivated by the people of the Idrisab, to "hom belong
the plaintiffs, and the east bank of the river has been cultivated by the
people of the Abde1 Kareemab, to whom the defendants belong. In 1905,

the right to cu1 t i vate Banagoba Island ~Ias in dispute between the ti~O
peoples, and on September 4, 1905, they made an agreement under which,

if the river Atbara dried up first on the east of Baragoba Island, the
Abde1 Kareemab should Imve the right to cultivate the island, if the

river dried up first op the "lest of Baragoba Island, then the Idrisab
should have the right to cultivate the island, and if the river dried up
simultaneously on both sides, tha~ the cultivation of the island should

be divided equally beti~een the tHO peoples in accordance \-lith certain
stipulated boundaries. The importance of this agreement, for the purpose
'of the present case, is that it is implicit and taken for granted therein

that the seluka land beti"een the island and the river banks wcul.d be
cultivated on the east of the island by the Abdel Kareemab, and on the
west of the island by the Idrisab.

It appears that Sagias 1, 2, 3 and 4 El Qubba, which lie on the west
bank of the river and opposite Sagias 1 and 2, Bar-agoba Island, i~ere
registered in private owner-shf.p on February 16, 1907, and th2,t the
remainder of the west bank of the river opposite Baragoba Island is
unregistered land, and therefore deemed to belong to the Sudan Government.
The El HaVlir land, on the east bank of the river opposite Baragol)a. lsland,
was registered to the Sudan Government on January 29, 1906. On January
20, 1925, Baragoba Island and Sagia, No. 31 Here registered in private
ownar-sh i.p , and it appears that parts of the island vlere registered to
individual members of the Abdel Kar eemab and parts to individuals of the
Idr-Lsab , It further appears, however, that no claim by vlay of grant to

the seluka lands, lying opposite to any of the sagias registered in private
owner-shap , can possibly be implied from the mere grant of the sagia,
because in the 1925 Settlement all selulca lands not actually registered

in private mmership uer e declared to be the property of the sudan Government

The ownership of the s el uka lands here in qu,est ion was admi tt ed by all
the parties to the suit, and would, indeed, appear beyond dispute, to

be in the Gov~ent. It follows that any decree passed in the suit, as
at present constituted, will be largely idle, since the Gov&~ent, the
owner of the land, is not a party thereto, and can at any time re-open
everything that such a decree might purport to decide. Moreover, the
judgment appealed from is based on the existen&e of rights in the res-

pective parties, which, if they exist at all, must be as valid against
the Government as against the other party. The learned Judge of the
High Court based his decision, that each party to the suit was entitled
to a right of cultivation over the seluka in question ~ medium ~,
upon an alleged principle, under which the o~mers of land on the bank of
a river have a right of following the soil up to the middle of the river
bed. I know of no such principle. The owner of the land en the bank of
a river, in the absence of proof to. the contrary, will us~llY be in a
position to show that the original grant of the land on the.bank carried
with it the ownership of the river bed ~ medium ~, and the right to
culti~tB would of course follow the property; but where, as here, the
ownership of the river bed was declared to be in a third party at the
same time as the' grant of the land on the river bank was made (treating
the island for this purpose as if it were the bank of the river), I can
see no possible ground in law for implying any right in the owners of
the bank to cultivate any part of the river bed. Prescription apart,
such a right could only arise by custom, and it was in fact upon custom
that each party based its claim. Any claim to a right to cultivate any
part of the seluka land in question by custom must, if the custom is to
be of any pz-act ical effect, be as binding against the Sudan Government
as against any would-be cultivator, and the appropriate. relief will be
by rectification of the Register. It foll&ws that the issues in this
suit cannot properly be determined.unless the Sudan Government· is made
a party thereto.

The custom relied upon by the defenqants appeared to be based upon
the right of the person in possession of the governmer..t-owned hi€lh land
011 the bank of a river to follow up and C1,!ltivate the government owned
seluka opposite that high land. No suob custom was proved in the court
below and, since any such custom would be quite inconsistent with the
rights of the Sudan Government as the owner of the seluka., it seems to
me extremely improbable that any such ~tom,~xists .• or is susceptible

of proof. In this court, the defendants stated their willingness to rely

upon such riGhts of cultivation as ~~e Sudan Government as landlord
might grant to them, but I should be reluctant to shut ther:! out from
any further claim, because it ::;eems to me that they may have some

cust omary riGht baaed upon a conjunct ion of hoiding the high land from
the Government, and upon rights e~ercised Under the 1905 aereement, and
poac i.b'ly from time ,immemorial. That oust om Hould be t he right of the

person lav!fu1l3^r in pces ess i on of the hiCh land on the east bank to cultivate

the selu.'~':' land oppoc i t e hb hoLlinG up to the edge of Jaragobn. Island.

Tho.t ouch c cuat om ex irrt ed prior to the registrat ion to the Gover-nment
of. the high land on the east bank nay ~lell f'o l Low from the terms of the
1905 agreement, and proof of the custom prior and. subsequent thereto.

The question then arises as to Hhether the registration of the high land

and of the river-bed to the Government merely affected the machinery by
vlhich persons Here Lawf'u'l Iy put into possession of the high land from
time to time, leaving the cuat om untouched, or lJhether the rcgistrat ion
must be deemed to have cut across all pre-existinG cuct ornary rig!1ts of
cultivation, and to have left the Governr:1ent \"lith a free hand to erant
cultivation rights to whomsoever it ui shed , That is a qucs t i on upon
vJhich the Sudan Government have a rie;ht to be heard and upon uh i ch the
defendants may Hish to call further evidence.

The custom relied upon by the plaintiffs appeared to be based upon

the fact that they wer e f'r eeho l der-s of the high land on the island vrher-eaa
the defendants Here only leaseholders, or mere 1 acenaees , To a la"/yer,
th~rc,ument appears to be nonsense, but this court has only heard argument,
and although it seems unlikely that the plaintiffs can support the alleged
custom, I should be reluctant to shut them out from calline; further evidence
or from further ar[:,"Ument in support thereof.

In my opinion, therefore, the Sudan Governmenr should be added as

a party to the suit, after the usual notice under section 109 of the
Civil Justice Ord Lnance 1929 and the suit should be remitted for further
hearing for the determination of the follollina issues:

(a) Have the plaintiffs any, and if so "hat, customary right or rights of cultivation
in the seluka land bet ueen sagia no. 7, Baragoba Island and the opposite
east bank of the river Atbara or in any and Hhat part thereof?

(b) Have the defendants, or any and t·Jhich of them, any customary right or rights
of cultivation in the said seluka land or any and v/hat part thereof?

(c) Is the Government as the owner of the said seluka land at complete
liberty to grant cultivation rights over the lihole, or any and v/hat part

Mavrogordato, D.i.:I concur.

Dardiri ,M. Osman, D.J.:'1 concur.