(COURT OF APPEAL)*

MOHAMED OSMAN EL HASSAN v. AHMED EL MISBAH

AC,REV-50-1965

 Principles

·  Equity- Equitable rights in land be acquired by agreement to enter into possession cultivate and build a house on the land Land law-Rights in land –can be acquired by agreement to enter into possession cultivate and build a house on the land-capable of registration under land settlement and Registration Ordinance, s, 27-such rights are not commercial transactions

·  Equity- Equitable remedies-Equitable rights in land can be terminated by misconduct of wrong party-Remedies are ejectment of wrong party and payment of compensation to him for losses spent in the land

Plaintiff who was proprietor of leasehold land, made an agreement with defendant, by which he allowed defendant to enter into possession, cultivate and build a house on the land to his own benefit. In consideration, defendant contributed money and labour to develop the land. Due to defendant’s ejectment form the land. District Judge ruled that defendant had not acquired had to be ejected from the land and plaintiff had no pay him compensation commercial transactions.
 
Held: (i) The defendant had acquired equitable rights in the plaintiff’s land by the agreement, which allowed him to enter into possession, cultivate and build a house on the land to his own benefit. Such equitable rights are capable of registration under land settlement and Registration Ordinance, s, 27; Rights acquired in lands are not commercial transactions.

(i)      Since such equitable rights were not reiterated under land settlement and Registration Ordinance s, 27, the remedies available should be equitable and defendant should be ejected from the land and plaintiff for losses he spent in the land should pay compensation to him.

Judgment

Advocate: Mohamed EL Awad El Hassan………………….for applicant

Osman EL Tayeb j. June 26.1965:-This is an application for revision from the Order of province Judge Kassala Circuit , dated January 31.1965, dismissing summarily a similar application to him form the judgment and decree of District Judge Kassala dated December 30.1964, ordering the ejectment of applicant form sagia No.228Gash West upon payment to him by respondent of the sum Łs 355-

Respondent (referred to herein as plaintiff) is the registered proprietor  of leasehold in the above numbered sagia, which comprises eight feddans. It appears that he was unable to develop the whole sagia alone, so he sought the help of others to come with him to an agreement to develop the land by their joint efforts. It happened that he had before applicant (referred to herein as defendant) made agreement with three persons that successively came to an end. The agreement with defendant was that: in consideration defendant contributing money and labour in sinking and building a well, purchasing a pump, purchasing pipes and installing them, plaintiff has to permit defendant to enter into half the land and cultivated it to his own benefit. This agreement was made in land and cultivates it to his own benefit. This agreement was made in 1957. it was executed. They jointly sank the well and built it they also purchased the pump and the pipes and installed them. Water was raised and it ran through the land and each one developed his half by growing vegetables and fruit trees.

Their living in harmony and happiness did not last for long. Quarrels started, it seems in the next year, In one case defendant seriously injured plaintiff’s son, that he was tried by a major court for attempted murder defendant came back to the sagia, which was fairly well maintained but he resumed the quarrels. In one incident, defendant stripped and took away the running belt of the wheel of the pump and brought it completely to standstill. The development stopped, no irrigation no cultivation and the grown trees withered aware. All efforts made by mediators to restore co-operation were futile. The evidence shows that all the trouble was cause by defendant.

On these facts the learned District Judge decided that defendant has to be effected form the sagia and that the plaintiff has to pay him the assessed sum of money as his share in the value of construction of the well, the pump and other things. On the question s to whether by virtue of the agreement made between the parties, defendant has acquired any right or interest in half the sagia, the learned district Judge ruled that defendant has not acquired any right or interest in the land.

The learned Province Judge, on the application for revision made to him viewed the matter as a commercial partnership that can be dissolved by Court, on the grounds, inter alia, of the misconduct of a partner. The view is clearly a misconception, as the case here is not a commercial partnership and cannot be governed by those rules. This is a case concerning land, and the crucial question, as posed by the learned District Judge, is whether defendant ha acquired any right or interest in half the sagia, and what is the nature of that right or interest? The ejectment or otherwise of the defendant depends on the answer of this question. By their agreement defendant was allowed to enter into the land to cultivate vegetables and crops, to grow fruit trees and to build a house
 

To live in. in these circumstances, there is no doubt that defendant has acquired a right in that land. The nature of this right, it seems to me, is similar to some of the rights enumerated in land settlement and Registration Ordinance, s, 27. Namely right to date trees and other trees and the customary right of occupation of houses built o the land with the consent of the proprietor or his predecessor in title.

Plaintiff, who is the proprietor of the leasehold, allowed defendant, as started before, to enter into possession of leasehold land and draw benefits from that land, by cultivation and occupation. There is here a right or an interest, which may be capable of registration under the Ordinance. The other question is how this right or interest in land can be terminated so as to justify the eviction of defendant. In my opinion guidance can be found in those cases built with the consent of the proprietor was decided to terminated y payment of the occupier to the value of his houses.

It appears to me that the relief that plaintiff is seeing in this case is an equitable one; in the first place the right of defendant, though based on agreement is an equitable one since it was not registered and secondly that the co-operations between them became impossible and the land is falling waste, by reason of misconduct of defendant. So it is fair and just to terminate the interest of defendant in the sagia and consequently order his ejectment on the condition of payment to him compensation for his losses in the sagia. The compensation was assessed by a commission, it was accepted by the learned District Judge, who commented that it was highly assessed, as the commissioners were trying to bring an amicable settlement between the parties and by being on the High Court side they were trying to persuade defendant to accept the compensation and end dispute.

For these reasons this application is summarily dismissed.

* court : Osman EL Tayeb.