Case No.:

AC.RFV-83-1957

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure— Justice Ordinance. s,46 –Immoveable property - Rent . accrued movable—Rent to accrue immovable

Rent that is to ac rue is immovable ‘‘ property o thin the meaning of Civil Justice Ordinance. s. 46: rent accrued is ‘ movable “ property. Suits for rent to accrue shall be brought in the province where the land is situated; suits for rent accrued may be brought in accordance with Civil Justice Ordinance, s. 48. explanation 1 (a), in the Province where the rent agreement s as made

Judgment

(COURT OF APPEAL)

MOHAMED EL AMIN MOIJAMED Ali v AHMED EL SIDDIK

AC.RFV-83-1957

.

M. A. Abu Rannat C.J. August 5. t957 : —This is an application for revision against the decision of the Judge of the High Court, Khartoum. dated January r, 1957. dismissing an application by the same applicant

*Court : M.A. Abu Rannat C.J.and M.I.EL Nur J.

w ho applied for revision of the decree of the district judge, Khartoum, dated November 18, 1956.

The facts are these. On January 11, 1955, there was an agreement between the plaintiff and defendant whereby the plaintiff, leased to the defendant Sagia No. 15 (I) Salama, Shendi District, for one cultivation season beginning March 1955. and ending March 1956. It was agreed that the defendant should pay a sum of £S.,16o. The defendant paid. £S130 and the balance still due from him was £S.30

There was also a Sanad dated March 19, 1956, by the defendant admitting that he was indebted to the plaintiff for the sum of £S.3o, which was the unpaid amount out of the £S.16o.

On October 15, 1956, the plaintiff instituted Civil Suit No. 2239-1956 against the defendant claiming the £S.30 The defendant admitted this amount hut he submitted that he wanted to counterclaim for this amount, as the area which was leased to him was found, in fact, less than the area taken over by him.

The district judge signed a decree against the defendant for the payment of £S.3o and costs, and gave leave to the defendant to institute a counter claim against the plaintiff at Shendi District Court.

The defendant applied to this court praying that the place of suing should be Shendi District, as the claim itself is in respect of rent of agricultural land, and as land is immovable property. the place of suing is governed by Civil Justice Ordinance, s. 46.

Before embarking on deciding the proper place of suing we should like to examine the original tenancy between the plaintiff and the defendant. The first clause of the tenancy reads:

“The plaintiff leased to defendant Sagia land No. 15 (1) Salama of Shendi District, comprising an area of 37 feddans, and also any land that my be added to it.”

Clause ç of the same agreement says that the defendant examined the Sagia land and he knows its boundaries and condition, and that he accepted the contents of this agreement.

Defendant contends that he discovered that the area which was leased to him was in fact less than the area taken over by him. He states that there is a difference of nine feddans.

On reading the agreement we find that in fact what was leased to defendant is an agricultural unit known as Sagia No. 15 (1), and as he (defendant) himself had examined the land and accepted the area, we see that his claim to the difference in acreage is groundless. We therefore think that in fact he had no right to counterclaim for the rent in respect of the difference in acreage.

As to the place of suing, Civil Justice Ordinance, s. 46, reads as follows:

“Suits relating to immovable property shall be instituted in the Province within which the property or a portion thereof is situated.”

Immovable property includes land, benefits arising out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Rent that has already accrued due is movable property, for it is a benefit which has arisen out of land, but rent that is to accrue due is immovable property, for it is a benefit to arise out of land.

In this particular case the rent claimed has fallen due and therefore it is movable property. and the suit may be instituted in the place where the agreement was made. It is admitted by the defendant that the agreement was made in Khartoum. Therefore the district judge was right in allowing the action in Khartoum.

We find that the defendant failed to prove that he has a genuine claim against the plaintiff and that the right place of suing is Khartoum.

This application is dismissed with costs which are taxed at £S.3.

M. L El Nur 1. August , 5,1957-1 concur