(COURT OF APPEAL)*

HEIRS OF ABDEL AZIZ KHAMEES v. HEIRS OF HABIB HABRAM

AC-REV.542.1965

 Principles

·  Custom—” hag el miswoq “—Right to cultivate on the land—Custom in Manasir area Land Law—’ hag el miswag “—Right to cultivate on the land—Custom in Manasir area—Re gistrable right in addition to the ownership of the land

Custom—” hag el miswoq “—Right to cultivate on the land—Custom in Manasir area Land Law—’ hag el miswag “—Right to cultivate on the land—Custom in Manasir area—Re gistrable right in addition to the ownership of the land

Judgment

hag el miswag” is a recognised custom in “Manasir” area. Northern Province, which means the right to cultivate over the land, besides the, original right. “hag el asl,” i.e., of the owner of the land. Such right is registrable as an encocumbrance.

&thiker /twadalla C.J. August 15 1966 :—This is an application against the decision of His Honour the Province Judge, El Darner, dis missing summarily an application to him against the judgment and decree of the learned District Judge, Berber, in CS-28-1936.

The cause of action in this case is a peculiar one. Applicants- plaintiffs in the suit—are originally the owners of what is known in the Manasir area of the Northern Province as “hag el miswag “—an interest in the nature of a cultivation right abridging the power of exclusivity of posses sion residing in the original owner of the land and who is known as the owner of “hag el asl.”

According to Ryder in his report on Land and Land Customs in Berber Province, the incidents of the right of hag ci miswag are as follows:

(i) He has the sole right to cultivate in all parts of the sagia whether date trees are present or not,

(ii) He has the right to plant or grant permission to plant shatlas or sow the seeds of young trees in any part of the sagia.

Mr. Ryder states at page 2 of part 8 of his report above referred to that as the holder of the “hag el miswag” has the right to plant and is also obviously the cultivator, the shares in the crop of the owner of hag ci miswag and hag ci asl are as follows:

Holder of hag el miswag two thirds

Holder of hag el ASL one third.

Although the holder of hag el asi can alienate his right, Mr. Ryder doubts whether such a disposition would give rise to a right of pre emption in the holder of hag ci miswag.

Mr. Ryder was the settiement officer of the lands in Berber Province, which was conducted in 1910. To be exact, he was the head of the Commission appointed under the title of Lands Ordinance, 1899. Dealing with this dichotomy of proprietary interests in the Manasir area, he says:

“The original owners of the country are the people of the Manasir, a nomad Arab tribe distinct from the riverain people. Some of them settled or rather occasionally cultivated on the banks of the river in this part, but owing possibly to their nomad habits or possibly to their lack of numbers and their consequent inability to cultivate to any great extent, people from other generally riverain tribes came and cultivated; the people of the Manasir however admittedlY retained the ownership of the land. While the ownership remained in the original possessorS the intruders exercising the right of cultivation over a considerable period__gradually seem to have ousted the right to cultivate of the owners of the lancL in consequence throughout the omodieh two distinct rigsits are recognised.

1.The hag el asl or original right, i.e., that of the owner of the land

 2. The hag ci miswag or the right to cultivate.

These two rights may be vested in the same person or in different persons in the same piece of land. The consequence is that in a great many places the owners of the land and the cultivators are distinct sets of people each having their own peculiar rights, that of the landowners not including the right to cultivate while the cultivators’ rights being practically that of cultivation. In the ornodieh therefore there is no “khurg” or rent, i.e., the landholders share the crop.”

Mr. Ryder entered the name of the owner of hag el asl as the proprietor in the register and that of the owner of hag ci miswag under the remarks column as the owner of an encumbrance.

In the present dispute, applicants the heirs of Abdel Aziz Kharnees who is the registered owner of hag ci miswag over six azms in sagia 16 (i) el Gamamie and respondents__defen the heirs of Habib Habram who are the, registered owners of hag el asi over 12 azms in the said sagia as well as the owner of hag ci miswag over 6 azms in the same sagia. In other words, the settlement officer divided hag el rniswag equally between applicants and respondents. If the theory of ouster of the original owners by the cultivators is the basis of Mr. Ryder’s opinion as to the existence of the right of hag ci miswag, then I regret I am unable to see how one man can at the same time be the owner of hag el asl and bag el miswag. Because if he is the owner of hag el asl and meanwhile is cultivating half of it undlvidedly with another, then that other would be cultivating under a claim which could nOt have been based upon ouster at all and his relationship to the landlord would be one of ordinary tenant.

It isnot clear what applicants were doing between 1910 and 1954 but in that latter year they petitioned the village court complaining against the refusal of respoüdents to allow them to cultivate. It is not clear whether Native Courts have jurisdiction over such a cause by virtue of the Native Court Ordjnance, s. 8 (c), nonetheless, the courts gave judg ment in favour of applicants and their decision was confirmed by the Nati Courts of appellate jurisdiction.

On June 10, 1957, applicants petitioned His Honour the Province Judge, El Damer, who referred their petition to the District Judge, Berber, with directions to hear the case himself as the Native Courts have no juris diction over the matter. Before His Honour the Province Judge, respondents admitted that though the register gave them a right to cultivate they had never exercised such a right. They then withdrew this admission v. hen their sworn evidence, was taken by the learned District Judge who heard and disposed of the case. I do not know why the learned District Jur framed the issues as though applicants were claiming the right by prescription although he would have certainly beeii.iight had he treated the issue as one of limitation, i.e., whether applicants’were by laj of time from claiming the right in question.

However, in their evidence, applicants alleged that they were cultiva ting the land in question since the death of their father in 1952 until they were prevented by responcfent in 1954. No one gave evidence in corrobora tion of applicants. On the contrary, all the evidence whether for appiicants or respondents was in favour of the latter and the learned District Judge had no alternative but to dismiss the claim. It is regretted that respondent made no alternative claim for rectification of the register as regards the six azms registered in the name of applicant’s father by way of hag el miswag

Applicant petitioned His Honour the Province Judge who dismissed his application summarily and hencC the present application to this court.

Before us applicant again trfed co assert possession since the death of his father but there is no doubt that such assertion on his behalf cannot derogate from the weight of the evidence adduced before the learned District Judge. The right claimed is a right to possess and cultivate land, the property of another, and if the owner of such right gives up possession and allows the owner to’ exercise full dominion over it, then the possession of the owner would no doubt be ‘exercised in adversity to that of the owner of a mere cultivation right and the period of limitation would start to run in favour of the former and would therefore bar a claim by the latter after the lapse of ten years.

To that extent, therefore, I am of opinion that the learned District Judge was right’. If respondent wants to have the remark regarding hag ci miswag removed from the register, he is at liberty to institute a civil suit for such relief.

This application is accordingly dismissed with costs.

Osman el Tayeb J. August 15, 1966: —Iagree.