Principles

·  PRE-EMPTION — Assignment  of  99-year lease—A “sale of land”.

The assignment of a 99-year lease is a “sale of land” within the meaning of Pre emption Ordinance 1928. s. 3(c)

Judgment

Salih Wahbi, D. J., December 8, 1958:— The plaintiff in this suit is a lessee of 4.09 feddans in Hawasha No. 171 El Kimeir for a period of 99 years as from January 1, 1949. First defendant was also a lessee of 0.72 feddans in the same Hawasha for a period of 99 years as from January I. 1949. On October 19, 1957, first defendant sold his share to second defendant for the sum of LS.13.000m/ms. and registered the same in his name.

The above Hawasha is registered in the name of the Government Plaintiff is now claiming to exercise her right of pre.-emption over the lands sold by first defendant to second detendant.

No issue of facts arises in this case. Second defendant, who appeared in person, admitted all facts alleged by plaintiff. But he resisted the claim on the ground that he has lands in Hawasha No. 172. which is adjacent to Hawasha No. 171. He also stated that the transaction between him and first defendant was an assignment of a lease and not a sale wit the meaning of Pre-emption Ordinance 1928, s.5.

I think judgment in this suit depends entirely on the issue of law Framed

Pre.emption Ordinance 1928, s. 5(c) states that a right of pre-emption exists in favour of “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 A Hawasha is no doubt a unit of irrigation, and since the land of plaintiff and the land sold are in the same Hawasha, and since plaintiff is an adjoining owner, she is entitled to a right of pre-emption under Pre-emption Ordinance, s.5(c) .

Second defendant’s allegation that the transaction was an assignment  of a lease and not a sale can be easily disposed of. A lease of land for a period of 99 years is equivalent to ownership. and since the intention of the legislator was to protect the co-owner and the adjoining owner of the land sold from the unwanted outcomer, the lessee of the land for a period of 99 years is on the same footing with an owner. The assignment of the land leased for 99 years is in essence a sale, and the adjoining lessee is therefore entitled to exercise his right of pre-emption under Section 5(c) of the Ordinance.

The other point raised by the second defendant is that the defendant is also an adjoining owner having a share in Hawasha No. 172. Defendant here tried to invoke pre-emption Ordinance, s.7(d), and alleged that plaintiff. has no right to pre-empt since he, defendant, is also an adjoining owner. Pre.emption Ordinance, S. 7(d) states “No right of pre-emption  arises

where a sale takes place between co-owners or between adjoining owners of land included in the same sagia or other unit of irrigation or registration.”

It is obvious  that this sub-section does not apply in this case. Second defendant is neither a co-owner nor an adjoining owner under Section 7(d) he admitted that he has no share in Hawasha No. 171, El Kimeir. In fact this Hawasha is divided between the plaintiff and first defendant. There is no other person with them. Therefore plaintiff has established a right of pre-emption against the defendants and I shall pass a decree in her favour with no order as to costs.