(PROVINCE COURT)

ABDULLA EL HUSSEIN HAMZA v. SAFIYA ALI ABU ALI

AND ANOTHER

PC-REV-67.1958 Ed Damer

 Principles

·  Pre-Emption — Custom —“ Mudairia “— Pre-Emption Ordinance 1928, S. 5 (c) — Mudairia” cultivator is an “adjoining owner” even though not registered Custom—” Mudairia “—Custom of sharing sagia cultivation in Damer District—Effect on Pre-emption Ordinance 1928, S. 5. (c)

A cultivator of a sagia share by the custom of “mudairia” in Damer District may pre-empt as an “adjoining owner” of a contiguous share, under Pre-Emption Ordinance 1928. s. (c), even though he is not the registered owner of his “mudairia” share.

Judgment

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

This land comprises one ud undivided in share No. 2 and one ud un divided in share No. 8. Plaintiff is the registered owner of one ud undivided in share No. 12. All are 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-ernption Ordinance 1928, S. 5 (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. 1, 8 and 12, are not adjoining shares.

On hearing the partes 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; 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, i.e., they touch on each other and have one boundary line. This is what is actually happening on land as a result of “mudairia.” It 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 section (c) of the Ordinance. The section provides that the right of pre-emption exists in favour of an “adjoining owner on the 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 “mudairia.” At the time of cultivation the samad of the sagia, with the agreement of all the owners, measures out to each owner or to each group  of owners, i.e., members of one family, or to a tenant holding land 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 mudairia, is that the shares as numbered and shown on the register, are given no recognition by the owners. The owner who owns a number  of uds appearing in the register in different shares holds and cultivates the same number of uds as one piece of land allotted some where in the sagia, according to the mudairia. The mudairia is no doubt useful for the proper cultivation and enjoyment of the land.

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

I have some doubt as to whether “adjoining” means contiguous and touching, when the lands of the seller and the pre-emptor are both included in the same sagia or other unit of irrigation. In other words, is land 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, adjoining within the meaning of the section? 1 have doubt as to this, because the sagia is considered to be the unit of registration, and it is also the unit of irrigation. It is normally irrigated by a dulab made by all he registered owners jointly or by the samad on their behalf. Thus, the water passes from one part of the sagia to the other, and one part has the benefit of a servitude over the other or is subject to a servitude to the other. On this understanding. I take “adjoining” to mean not only contiguous and touching, but also to mean nearness  and unity in the same sagia. Thus, 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 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 mudairia ax actual cultivation, and so upon this I decide that plaintiff is entitled to the right of pre-emption.

The decree of District Judge, Damer, dated May 31, 1958. is set aside and decree for pre-emption is passed in favour of applicant. Applicant has paid the purchase price, to wit, £S.15 and has handed it over to the purchaser in court.