Land Law-Pre-emption-Lease of Sagia from government with a view to pur-
chase-Adjoining owner's status under the Pre-emption Ordinance 1928-
Right 0/ pre-emption renounced

By a long established practice, known to the parties, and embodied in a
series of 'Province Circulars. the Government refused to sell Government
owned agricultural land in Haifa Province except to a purchaser who had
leased and cultivated the same for at least two years before the sale. In
1931 the first defendant took a five year lease from the Government of sa-
gia No. 70, Ishkeit, and the plaintiffs, the owners of sagia No. 35/2, which
adjoined sagia 70, were, aware of the lease. About 1935 the potential value
of the land increased through the opening of the Debeira Pump Scheme;
the first defendant sought access to the scheme for sagia No. 70, and the
plain tilTs opposed him. In 1938 the first defendant petitioned for the sale
of the sagia to him, and it was sold and registered to him in 1939. The
plaintiffs, as owners of sagia 35/2, instituted a pre-emption suit under sec-
tion 5 (c) of the Pre-emption Ordinance 1928.

Held: (i) A sale of government land under regulations requiring the
purchaser to have leased and cultivated the land for at least two years
prior to the transfer of ownership is nevertheless a sale within the mean-
ing of the Pre-emption Ordinance 1928, ss. 5 (a) and 7 (g).

(ii) Although neither sagia No. 70 nor sagia No. 35/2 was irrigated,
they were to be regarded as irrigated and included in the same unit of irri-
gation for the purposes of section 5 (c) of the Ordinance because it was
only the plaintiffs' obstruction which had prevented both from being irri-
gated as one unit from the main canal.

(iii) Since the plaintiffs had notice from 1931 that the first defendant
was leasing the land with a view to purchase, and since plaintiffs neglected
the opportunity which they were given to acquire the land themselves, al-
lowing the first defendant to work and spend money on the land for eight
years, they had renounced their right to pre-empt by their conduct under
section 16 of the Ordinance.

Pre-emption Ordinance 1928, ss. 5 (a), 7 (g) and 16 (a).

Action

November 21, 1940. Maclagan D.J.: The plaintiffs in this ac-
tion are the four surviving owners of sagia 35/2, Ishkheit village, Haifa
District, andthey seek to exercise their rights of pre-emption over sagia
70 whieh lies alongside 35/2 to the east. No claim is made on behalf of
the heirs of the two deceased owners in 35/2.

The first defendant, Ahmed Seyam Ibrahim, acquired No. 70
by purchase from the second defendant, the Sudan Government, for
£E.2.375 m/ms, the deed of sale being registered on October 4,
1939. Sagia 70 was originally leased to the first defendant in
1931. He continued to pay rent annually till last year, when he
bought the land outright. The original lease was for five years
beginning August 18, 1931. The conditions of this transaction were
substantially as set out in Haifa Province Circular Memorandum. No.
95. Paragraph 4 (b) of this circular reads:

"Sales are intended to be confined to bona fide occupying
cultivators-and therefore an intending purchaser must lease
and cultivate the land for at least two years before a sale may
be effected."

Paragraph 4 (f) reads:

"On completion of the sale a deed of sale will be made
out and ... registered."

Paragraph 5 reads:

"Auction may be- held at the discretion of the Governor,
and will be held whenever there are two or more contending
parties for the same plot of land who have no better claim than

   one another.                             

I am not for a moment suggesting that the mere issue of a
Province Circular would in any way restrict the provisions of the
Pre-emption Ordinance, nor establish a custom which the courts
should necessarily recognise. But it has become evident to me
during the hearing of this case that the provisions 'of Circular 95, which
is by no means of recent origin, and even when issued was merely
a restatement of a number of even older circulars, are well known
to all connected with this case. That is to say that anyone in this
area who leases a plot of land from the Government is regarded as
one taking the first step towards buying that plot.

The plaintiffs have in fact admitted that as soon as they were
aware that the first defendant was leasing the land they feared that
his intention was to buy it. They allege that they were not aware
that he was the lessee till 1936 when he employed some labour in
levelling the land, and that they then immediately petitioned the
District Commissioner, applying that the plot be leased to them rather
than to the first defendant.

The first defendant alleges that before he
lease in 1931 a surveyor was sent out, and that e joining owners
were then given notice of his intention to acquir e pi . and warned
that if they wished to acquire it themselves the' to speak was
then. He also alleges that Mohed Abdo Ayoub third plaintiff) and
Taha Ayoub (ageot of Ahmed Hag Ali Ayoub. nd plaintiff) were
present and heard this warning. There is some e idence that this
allegation of the first defendant is true. though both Mohed Abdo
Ayoub and Taba Ayoub protest that they were a, in Egypt at
the time. In any case I am satisfied that in so small a community,

  livlng.jn so restricted an area, it would be imle for the first

  defendant to have leased this plot, which would 'tate a survey,

without notice having come' to the adjoining owners,

The first defendant goes on to allege tha from 1932 he worked
00 the plot, both himself and by paid labour. clearing it of stones,
levelling it and lowering its surface, and tha •. continued to do
so till 1.936, by which time he had spent a considerab e sum of money
on the land. I have seen the plot, and I agree that it has been
cleared of stones and levelled-work which a handful of men could
have accomplished in a week. I cannot believe that the first defendant
bas for years been striving so hard and spending his money so
lavishly for so small a result. The truth rather appears to be that
in 1931 the plot was valueless, not only to the first defendant, but
also to the plaintiffs, who therefore saw no reason 0 prevent it falling
into the first defendant's hands.

The arrival of the Debeira Pump Scheme in 1935/36 com-
pletely altered the picture, setting the first defendant vigorously work-
ing on the plot, which he intended to water by a canal across the
plaintiffs' sagia 35/2. The plaintiffs would have none of this, and
both parties came running in to Haifa to bombard the District Com-
missioner with petitions. In the HaIfa District files I have seen two
of the peititons (both dated July 19, 1936) pot in by the plaintiffs.
In these petitions they protest that Ahmed Seyam should not be al-
lowed to cultivate so near to their houses; but they neither ask nor
suggest that the land should be given to them. Their attitude was
merely obstructive; neither then nor in 1931 did they makc any
attempt to acquire the land for themselves.

On the back: of one of plaintiffs' petitions there is a note by
Mr. Buchanan, then District Commissioner here; which reads:

"The answer to all these petitions is that Ahmed Seyam has
rented land from the Government for some years for the purpose
of cultivation. He has now prepared it for watering. 1 have
permitted him to take water from the scheme at Debeira, al-
though. I think that the area to be watered is in a most un-
suitable place from every point of view.

In accordance with custom he must be allowed to canalize
through sagias between his land and the water; but he is. not
permitted to erect a sagia on other persons land.

The only answer to the problem is for petitioners to agree'
with Ahmed Seyam either to compensate him for his work, an
condition he does not cultivate, or agree to allow him to erect
a sagia on their land, provided they share in the cultivation."

That note, written over 4 years ago, accurately defines the posi-

tion today, though the District Commissioner might have added that,
except in the case of Mohed Hussein Ayoub (who is not one of
the plaintiffs), the houses were built after Ahmed Seyam became the
tenant of the plot. The houses are too near the first defendant's
proposed cultivation, not the cultivation too near to the houses.

The upshot of all this petitioning was the District Commissioner's
letter to the 'Otnda of August 11, 1936, authorising the first defendant
to make his canal across sagia 35/2. This letter supports the first
defendant's story that the squabble of 1936 was merely an attempt
by the plaintiffs to prevent him watering No. 70, not an attempt to
acquire that plot for themselves. The first defendant did not then
take advantage of his victory, but set to work to build himself a house
so as to live near his cultivation. It was not until July 6, 1938 that
the first defendant submitted a petition to the District Commissioner
for the sale of plot No. 70 to him.

(The Court then discussed some correspondence between the
District Commissioner and the Omda in which the Omda answered
some questions favorably to the first defendant-indicating 111at he
was cultivating the land, that he was an adjoining owner himself,
and that no one else wished to purchase the land.)

In view of the Omda's misleading replies it is Dot surprising
that the District Commissioner approved the sale to the first defendant.
Had the Omda informed the District Commissioner of the true position.
he would, I feel sure, have insisted on a sale by auction.

That is the full story. and it remains only to consider the issues
so carefully framed by Judge Harrison.

The first issue was:

"What was the nature of the transaction carried out be-
tween the defendants on October 4. 1939? And in particular
was it a transference of property 'in any manner other than sale',
vide section 7 (g) of the Pre-emption Ordinance 19i8?"

Clearly it was a sale. It may be said that the agreement to sell,
upon the conditions set out in the Circular Memorandum 95, dated
back to 1931; but paragraph 4 (f) of that circular refers to the trans-
action of October 4, 1939 as a "completion of the sale", and that is
what it was.

The second issue was:

."Were the rights and obligations of the purchaser, or some
or all of them, such that the plaintiffs could be subrogated to
them?"

In my view they were not. Admittedly the purchaser had been leasing
the land for several years with a view to purchase, and he had spent
money on improvements. But he leased it under the conditions set
out in Circular 95, which provides for a sale by auction in the
event of other persons wishing to acquire the land.

The third issue was:

"Can either or both sagias 70 and 35/2 be termed irrigated
land, and arc they both included within the same unit of ir-
rigation, vide section 5 (c) ?"1 .

I think the answer is yes. It is only the plaintiffs' obstruction that
has so far prevented 35/2. sagias and 70 both being irrig~ted as one
unit from the main canal.

The fourth issue was:

"Have the plaintiffs renounced their right to pre-empt either
verbally, in writing or by conduct: (a) in Iailing to secure the

1 Pre-emption Ordinance 1928, s. 5: " ... a right of pre-emption upon sale
of any property of the kind in this section mentioned shall exist in favour of
the persons mentioned that is to say: ... (c) 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."