Principles

·  PRESCRIPTION — Easement — Use of intervening seluka to obtain irrigation water Prescription and Limitation Ordinance 1928, S.5

A sagia owner’s use of another owner’s intervening seluka for the purpose of obtaining irrigation water from the river by means of a kodeig well and gadwal establishes a ground for a prescriptive claim to an easement over the seluka but not to ownership thereof.

Judgment

Osman El Tayeb, P.J February 25, 1957:— This is an application for revision from the decree of the District Judge, Dongola, dated June 25, 1956  in his CS-48-1950, passed in favour of respondents (plaintiffs) to the effect that they have established prescriptive title in respect of 2 kirats out of 24 kirats in Seluka No. 1/16, Irtidy, registered in names of applicants (defendants)

The facts as found by the learned District Judge, and which I think are supported by the evidence, are-as follows:

Respondents are the owners of Sagia No. 6, Irtidy, and applicants are the owners of Seluka No.l/16, same village. The Seluka No.1/16 lies and Sagia No. 6. This seluka intervenes between Sagia No. 6 and the river, and so the owners of the sagia have no outlet to the river except across this seluka land. Since 1934 the owners of Sagia No. 6 have dug a kodeig over the land of Seluka No.1/16, and run a drain across it to carry water for the irrigation of their sagia. This kodeig and gadwal have continued to be used and enjoyed peaceably, publicly and without interruption until 1949. During this period the seluka was sandy, not suitable for cultivation, and so applicants were not taking much interest in it. By 1949 the soil of the seluka changed into cultivable land; hence applicants came to obstruct respondents, and the latter instituted their case in 1950.

Respondents have not asserted that they were in possession of any part of the seluka, otherwise than f the purposes of the kodeig and gad wal. So their claim from the start ought not to have been allowed for title to a part of the seluka, as here stated to be 2 kirats, but it ought to have been a claim for an easement as to the right of being allowed to maintain their kodeig and run their gadwal across this seluka.

A kodeig is a small well, which is not usually deep, in which the water runs from the river through a gadwal, and over which a sagia is constructed to raise water to high lands. The exercise and enjoyment of drawing water from the river across other land, the latter known as a servient tenement, is an easement which is acquired by prescription under Prescription and Limitation Ordinance, s.5.

The decree in this case should, therefore, be a declaration as to the establishment of an easement to a kodeig and gadwal or water course through the seluka and not for title to a part of the land.

Decree of District Judge, Dongola, dated June 25, 1956, is hereby set aside, and substituted as follows:

It is declared that respondents have established by prescription a right to an easement to the maintenance of a kodeig and gadwal attached to Sagia No. 6, Irtidy, over and across Seluka No. 1/16 Irtidy.