Civil Procedure-Parties-Failure to join essential party-Land dispute

• Court: Creed, C.J .

•• Court: Flerning-Sandes, J.

Land Law-s-Administrative mirin-i-lsland lands

Land Law-Hag el gusad-s-lsland Iands=-Competing custom

1. The rights in river bed land cannot be finally determined unless the
riparian owners of both banks are joined in the litigation.

2. In order to support an administrative ruling that seluka cultivators
were entitled to extend their cultivation as far as the edge of the main
stream it must be shown that in the Blue Nile Province there is a custom
that riparian owners may go down to the edge of the water of the present
summer main stream which is sufficiently established to overthrow the gen-
eral rule that tbe rights go down to the middle line of the wbole river
bed.

Action!

April 7, ] 939. Fleming-Sandes 1.: This dispute relates to a large
sand bank, stretching more than halfway across the river, which has
recently formed opposite plots 151-155, Kamlin Registration Section.
It contains a considerable area of good cultivable soil, rights over
which are claimed by a number of people. During the time of the
present Government this particular stretch of river has been more than
usually productive of disputes. In 1905 Mr. Corbyn, then District
Commissioner of Kamlin, was engaged in deciding rights over the
island of Om Tarfaiya, a short distance to the south. Later, in 1913,
Messrs. MacMicahcl and Leach were similarly occupied in ascertain-
ing whether Mr. Corbyn's decision against the west bank cultivators
still held good.

In 1924 Mr. Wallis settled a dispute relating to the seluka land
in front of these very plots. It was not long, therefore, before the
present district commissioners of Northern Gezira and Rufaa found
themselves called upon to make some administrative order regulating
the cultivation of the new land that had formed. After investigating
the position they decided that as the sandbank or island stretched more
than half-way across the river, and the main stream had' moved across
from the west to the east bank, a mirin should be drawn roughly
dividing the cultivable soil into two parts. Each part they allotted to
the cultivators on the banks whose holdings lay opposite the land in
question, This mirin was duly surveyed and is shown on a plan marked
B.N.CAD No. 74/37. A number of objections were put forward to
the disposal of the land in this way and the principal objectors are the
three parties to this suit.

1 Sec Mustafa Khogali and others I'. Ahmed Youllis and others, reported in
this volume and relating to this action.

There are two plaintiffs. The first is Sheikh Abdel Bagi Hamed
el Nil of Tayela, a large land owner residing some distance to the south
who claims that the area in question is actually Hamed el Nil, Branko
or Nassarabiya Island which was awarded to him by the 1902 Land
Commission. The other plaintiffs are a group of three families who
allege that they owned in the past an island known as Gassariya and
assert that the land which has now appeared is in fact their island. The
third party are the seluka owners on the west bank who maintain that
their right of cultivation extends across to the main stream without
interruption. The first two have been made plaintiffs and the last
defendants in the suit.

For the first plaintiff it has been streE2_usly argued that the land
in dispute is his former island of Hamed el Nil, Branko or Nassarabiya.
Its description as such on the survey plan is a matter of no c~~~e-
quence. In support of his case Sheikh Abdel Bagi has called an im-
posing array of witnesses, but after hearing those brought by the de-
fendants I am quite satisfied that the cultivation of which they speak
took place on land lying some distance away to the south. I have no
doubt that they are referring to their cultivation on Hamed el Nil
Island or its accretions before it disappeared. The old sketches in the
Merkaz files show this island as lying to the immediate north of Om
Tarfaya Island and situated, as it were, in the elbow of the river. It
certainly did not lie in midstream north of this elbow. Further it was
within the boundaries of Om Dagarsi Registration Section and not
those of Kamlin, where the land now in dispute is situated. For-
tunately, on a recent visit to the land I was able to see just emerging
from the water about half a mile to the south a bank of mud which is
undoubtedly all that remains of the head of Sheikh AbdeI Bagi's island.
I have no hesitation whatever in finding that the land now disputed
is not the property of Sheikh Abdel Bagi and in holding that he has
not made out his case.

Now the second plaintiffs claim the land to be an island known
as Gassaria. No one living appears to have seen this island and the
evidence called by Mustafa Khogali and his friends carries no weight.
This small group of people put forward a claim to Mr. MacMichael
in 1912, and again to Mr. Wallis in 1924 and on both occasions were
unsuccessful. They appear to do so as a matter of course whenever
new cultivable soil appears in this reach of the river. This in itself
shows the vague nature of their claim. They have a difficult task and
I am sorry for them: but I must declare once more that they have been
unsuccessful.

It remains to consider the claim of the defendants that their rights
extend across to the edge of the main stream of the river, in short,
that the sandbank or island is wholly theirs. They rely in support of
their contention on the decision of Mr. Wallis in 1924 to the effect that
there was no mirin in the seluka land in front of plots 151-155, Kamlin,
and that seluka cultivators were entitled to extend their cultivation as
far as the water's edge. After a careful perusal of the proceedings of
Mr. Wallis' case, I do not think that his decree can be interpreted so
as to entitle the defendants to cultivate across the river to within a short
distance of the east bank. There was clearly no khor in existence at
that time for he gives the absence of any such natural feature as the
reason for viewing the claim with suspicion. The land would seem to
have been purely seluka descending in a gradual slope to the water's
edge.

In view of the very different circumstances which now exist I do
not think that I can accept the interpretation for which the defendants
are striving. The soil tbat has formed is new land and has been so
allotted that the east and west bank cultivators divide it between them.
The new land stretches so far over to the east bank that I do not think
it is possible in all fairness to exclude cultivators from that bank.

After a lengthy investigation and hearing all the evidence avail-
able, I have come to the conclusion that the district commissioners'
administrative order represents the fairest distribution of this new land
that it is possible to make. I am quite satisfied from visits to the land
and an examination of the old sketches to be found in the files that the
land is neither Hamed el Nil (Branko or Nassarabiya) Island as
claimed by the first plaintiff nor Gassaria Island as claimed by the
second plaintiffs. Sheikh Abdel Bagi is clearly trying to follow his
eroded island down the river, and Mustafa Khogali and his friends are
trying to establish the existence of an island which is largely the
creature of their imaginations.

I shall therefore dismiss all three claims and affirm the mmn
made by the district commissioner and delineated on the plan B.N.CAD.
No. 74/37, without prejudice to its variation later should cicumstances
show that such a variation is called for. 1 make no order as to costs.

Decree accordingly

Revision

June 16, 1940. Creed C.].: On a study of the file of the suit I
find that there were two claims in that action; (1) by Sheikh Abdel

Bagi Hamad El Nil claiming ownership of the land on the ground that
he is the owner of a certain island called Nassarabiya and that the
newly formed land occupies the same site as Nassarabiya, (2) by
Mustafa Khougali and others claiming ownership of the land on the
ground that they are owners of a certain island named Gassariya and
that the newly formed land occupies the same site as Gassariya. Both
these claims were dismissed and applications for the revision of the
decree, in so far as it dismissed these claims, has been dismissed.

Ahmed Younis and others appeared as defendants in the suit.

The judge appears to have regarded them as putting forward a claim
that the administrative decision of the administrative authorities fixing
a mirin between the west and east bank owners was wrong and asking
the court to set it aside and declare the rights of the parties. He or-
dered by his decree that the administrative mirin should stand, but
granted liberty to apply if circumstances changed. Now it seems to
me that this case had strictly nothing to do with the respective rights
of east and west bank riparian owners, but was confined to dealing
with claims to the newly formed land on the ground that it occupied
the site of former islands alleged to have been owned by Sheikh Abdel
Bagi and by Mustafa Khougali and others. The east bank riparian
owners were not parties to the suit. The utmost effect that the order
which is contained in the decree and which concerns the affirming of
the mirin between east and west bankers can have is an order that
the status quo be maintained until the west and east bankers have
J itigated the matter.

The ground has now been cleared by the dismissal of the two
claims mentioned above and if the owners of sagias 151-155, Kamlin,
regard themselves as oppressed by the mirin laid down, it is for them
to raise an action against the east bank owners in respect of that por-
tion of the newly formed land which by the administrative cultivation
order has been awarded to the east bankers. The decision of that
question seems, so far as 1 can judge from the papers, largely to turn
on whether there is such an established custom in the Blue Nile
Province that riparian owners shall go down to the water of the present
summer main stream as to overthrow the rule that the rights of the
riparian owners go down to the middle line of the whole river bed;
but there may well be other factors, and [ do not wish in any way to
prejudge the matter.

In the circumstances it seems to me that I should dismiss the
present application for revision without prejudice to the west bankers