ALI MOHAMMED HASSAN SAADALLAH, Applicant-Defendant v. MOHAMMED MEDA WI AND OTHERS, Respondents-Plaintiffs
Land Law-Hag el Gusad=-Customory right to cultivate seluka land below
highland sagia=-Recognition by courts-Determination 0/ mirin line
It is a custom recognized by the courts that the owner of a sagia has
rights of cultivation over all seluka or other cultivable land immediately
below his sagia as normally exposed as the river falls. This right may be
surrendered by lawful transfer or upon acquisition by prescription.
Revision
November 20, 1933 Owen C.J.: This is an appeal from the
decision of the judge of the High Court in a case instituted by certain
• Court: Owen C.l.
landowners of Islang Island against Ali Mohammed Hassan Saadalla,
the owner of 70 habls in sagias 34, 36, 39 and 40 of Sururab West.
The issue in the case turned upon the construction of the document
of sale of these habls, the owner contending that his eastern boundary
was the west bank of the permanent stream, his opponents asserting
on the other hand that his boundary was a line (clearly defined in
the deed, and well known to all the neighbors and surrounding land-
owners) confining his sagia on it's eastern side to the bank of that
branch of the river which separates the west bank from Islang Island
and it's accretions, Sittin el Mahas and Tamanin. I am satisfied that
the learned judge was right in declaring that the contention of the
plaintiffs was the correct one.
But he has gone farther. He has made an order restraining the
defendant from interfering with any cultivation by the plaintiffs east
of that boundary. This means, in effect, that the plaintiffs are at
liberty, so far as the defendant is concerned, to cultivate all the land,
if it is cultivable at all, up to the boundary of the sagias in which the
defendant is co-owner.
This is going too far. It is the custom of the people of this
country, and a custom which has always received full recognition in
our courts, that the owner of a sagia has prior rights of cultivation
over all seluka or other cultivable land immediately below his sagia
and normally exposed as the river falls.' The presumption of the
existence of this right can only be rebutted by clear evidence of a
superior right, based either upon lawful transfer by those entitled to
make such transfer or upon acquisition by prescription. Where such
superior right is not proved, the right of the sagia owner is indisputable.
In this particular case the branch of the river separating the lands
owned by the parties to this case recedes in such a way as to leave
a considerable stretch of sand between them. In fact it recedes
altogether, and the effect of the learned judge's injunction is that the
landowners in Islang Island have been given the right to cultivate the
seluka land which, according to the custom, would normally belong to
the defendant.'
The plaintiffs have not shown by any manner of means that
they are entitled to anything more than the right the same custom gives
them by virtue of their ownership of land in lslang Island. If this
whole area were cultivable (which it is not) the rights of the respective
1 The custom is known as Hag el Gusad.
owners would extend from the boundaries of their own sagias following
the faU of the river until, when the water has disappeared entirely,
they meet the area over which the owners of the opposite bank have
their rights, namely at the natural mirin formed by the line left by
the last of the water as it recedes. Thus the areas over which these
rights are exercisable are not capable of being strictly defined or map-
ped, for while in this year the river falls in such a way as to make
the area cultivable by the west bankers small, and the area cultivable
by the Islang islanders correspondingly large, next year the faU may
take place in such a way as to reverse the conditions entirely.
There is nothing in the evidence to show that the rights of the
sagia holders on either have been varied by agreement or otherwise.
In fact the disputed land is, at the present time, uncultivated, and
there exists no evidence to show that it has been cultivated in the
past. The plaintiffs therefore have set themselves an impossible task,
and in so far as they have tried to show that their rights extend to
the defendant's sagia in such a way as to deprive him (the defendant)
of the rights which custom gives him, they have failed.
The declaration of the learned judge will therefore be set aside
and the following substituted for it:
"This suit having come for final disposal in the presence of
all parties, it is hereby declared that the eastern boundary of the
sagias 34, 36, 39, and 40 Sururab West (including the shares
in those sagias the property of the defendant) is that line on the
west permanent bank of the Nile known as Maghraf el Gados,
and it is hereby further declared thai ownership in the above
named sagias carries with it the right of cultivating the seluka
land lying immediately east of that boundary to the extent and in
the manner permitted by custom."
Application allowed in part