Case No.:

AC-REV-189-1957

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Land Law—Berber District—Preference of mirin claim to that of gussad

·  Land Law—Berber District—Right of prescription against the mirin owner

·  Land Law—Prescription and Limitation Ordinance, s. 5—Prescription period for gezira lands may begin when land appears and is cultivatable

In a land dispute over certain gezira land in Berber District plaintiffs claimed ownership b a customary right to whatever gezira land appears above water in a given area of the river bed. Defendants claimed the land above water by prescription, and the land below water by gussad, a customary right whereby owners of the land adjacent to the river are presumed to own all lands appearing in the river between their bank and the middle of the river bed. Plaintiffs proved in fact their ownership of the mirin over these lands by proving ancient ownership in their predecessor.
Defendants proved that they had held adversely the cultivatable land above water for more than the prescription period, and that they owned the land adjacent to the river on the west bank.
Held: (i) Since in this area the river bed is divided into mirins, the owners of the bank may not claim gezira land by gussad.

(ii) When land appears in an area of the river owned by right of mirin, those holding it adversely against the mirin owner for the prescription period become owners by prescription.

(iii) The prescription period may only begin to run when the gezira land appears, and is suitable for cultivation, not, e.g., being mere sand.
(iv) Therefore, defendants own the land which has been above water, cultivatable, and held adversely for the prescription period; plaintiffs hold their mirin rights to’ all lands which may in the future appear elsewhere within their mirin, and to the sandy and uncultivatable gezira land in question.

Judgment

)APPEAL COURT(*

HEIRS OF AHMED EL HUSSEIN AND OTHERS v. HEIRS OF

OMER EL BIHARI And OTHER

)AC-REV-189-1957)

Osman El Tayeb P .J. Northern Circuit . October 23, I957 :—This is an application for leave to appeal from the decision of Berber Settlement Officer dated June 10, 1957 in his Settlement Case- that lies to the Honourable the Chief Justice,

I am impressed by the efficiency of the Settlement Officer, K. M. Mekkawi, in the trial of this case and in the writing of his judgment. I think it is a very good judgment.

It is a novel case as far as I know. It deals with the proof of existence of an old mirin in river bed lands, and establishment of ancient ownership thereof, The system of mirins as a rule of division and ownership of land is well recognised by the local land customary law in Berber District from old times. The lands are still frequently referred to by the mirins that are Invariably given names.

• Court: M. A. Hassib . J.

Ryder in his Report on Land Customs in Berber Province (1910) wrote about mirins and their recognition by the customary law. He also pointed out that if a mirin once existed it is never lost. It is useful to take some quotations from his Report:

“Having divided up (he means divided by mirins) such a gezira land what happened? It was possibly in the course of years washed away by the action of the river or anyhow part of it disappeared in this way. This did not affect the method of locating the mirin; it was still there in the eyes of the natives only the greater part of it was under water.” In another place of the Report he says:

It is I think easy to understand why lands in the river bed are mamroon. It is a simple matter of determining the situation of a block of land to measure from a given base a certain width and say that shall be one holding and then continue and measure another and say that there shall be another and so on. The width of such measurements could easily be recorded and there is always the fixed base to measure from. So if was of little consequence whether the land was washed away; if it appeared again it could in the same way as when it existed in the locality before.”

Carless in 1936 wrote about method of distribution of unregistered river bed land in Berber District, that took place in 1932 and ‘933; he said this about mirins:

“In the area under consideration there is no question of gussad, the ‘ bed of the river is divided into known areas usually called mirins; the sagia usually descend to a certain extent over their front, if registration has not already given them all their rights, but they invariably have a definite known or recognised East and West measurement. In some places there are as many as six mirins between the East and West bank, some of these of course having already been registered.

“The measurement of most of these mirins can be. established by means of old documents showing either grants of land by o14 Emirs or Governors of the Turkish Government or sales, gifts, doweries, etc.” Many old writers put it as a maxim: “A mirin is never lost.”

This means that when the ancient ownership of a mirin has been proved, and the mirin can be ascertained by old maps, other documents or old witnesses, the plaintiffs have to succeed in their claim. In the past the customary law recognises no individual rights to land under water. So all the previous settlements had dealt with visible land, and no claims (I imagine there were none) were decided as to land lying in the river bed under water. Though mirins to such land had existed, the owners were not, then, entitled to prove them; they had to wait until the land appeared.

Land with mirins over it had existed in the past; by the freakish change of the river it disappears. After many years, ten or more, it starts I reappear, as usual developing gradually. From this time the old owner as their holdings are defined within the mirin, will be entitled to have the lands on the strength of their ancient rights. If the same land disappears again, the mirin and consequently the rights are never lost, and remain 1 be seen to be exercised by physical possession when the land reappears again any time later.

But these ancient rights, as fixed by old mirins, are certainly subject to the operation of the Prescription and Limitation Ordinance. They are defeated by the establishment of prescriptive rights. When land wit ancient ownership s to reappear and another person sets foot on and has possessed it by cultivation, or by receipt of rents or profits for t1 whole prescriptive period, he has acquired title to it, in particular vis-à-vis the ancient owner. The right of action for ancient owner star to accrue from the year of the reappearance of the land when it becomes capable of being adversely possessed. Before this time, and so long as remains under water or if it appears but only sand and unsuitable for cultivation the right to it vests in the ancient owner. His right, to it is n extinguished.

These principles are essentially applicable to the present settlement. I the settlement of the river bed up to the medium filum aquae, when a old mirin is ascertained and the ancient ownership thereof is proved as t the soil under water, the principle of gussad shall have no application. And when the land is visible the ancient ownership of a mirin is only defeated by prescription.

In the present case, the contention of plaintiffs is the there existed a old mirin by name Mirin El Wasayid, in the area in dispute and that was long ago owned by their predecessors in title. The land is partly visible as Saluka under the registered holdings of defendants and partly under water. Defendants claimed it as to the visible part by prescription and as to rest up to medium filum aquae by gussad. Plaintiffs produced a old wathiga and adduced witnesses to prove both the existence of the mirin and ancient ownership. The wathiga is about eighty years old It was about land other than the one n dispute, but it mentioned Mirin El Wasayid as the west boundary of that land. The latter land is found to be now forming part, of Sagia No. 192, property of second defendant This can prove the existence of the named mirin, but its length along the river and its rih are by no means ascertainable. The witnesses, though with little degree of accuracy, proved the existence of the mirin and ii ancient ownership to predecessor of plaintiffs. However as the Settlement

Officer found, the plaintiffs proved their case. On the other hand, defendants proved that since the salukas under their respective lands have started to appear they were cultivating them. It is proved, as the Settlement Officer found that these salukas started to accrue in 1933, and up to 1946 it took its present shape. During this time and up to now defendants have been on this saluka . It is right that they should acquire this land up to the present position of the water except a small sandy piece that nobody ever cultivated (see the sketch) and plaintiffs are entitled to the soil of the river bed up to the medium I aquae. The sketch is carefully drawn and the decree is very well drafted to correspond with it.

I recommend that the application be dismissed.

M. A. Hassib J. May 20, 1959 : —The applications for leave to appeal against the d of the Settlement Officer dated June I0, 1957, in Settlement Cases Nos. 13 and 14-1957 are undoubtedly hopeless.

The Settlement Cases were entertained as appeals against the decision of the Registration Officer dated June 3, 1957, whereby he ordered registration of salukas Nos. 233 and 234 Garrib Island, Berber District.

The Province Judge in his note forwarding the applications and papers said

“I am impressed by the efficiency to the Settlement Officer K. M. Mekkawi in the trial of this case and in the writing of his judgment. I think it is a good judgment.”

I confirm this comment and add it is a very sound judgment.

The land in dispute is a low saluka land. It was not in existence in Settlement of 19o7—Tippets Settlement. Nor in Settlement of 1914 — Ryders Settlement. But it was in existence at Mahdia time and was known as Wasayid Mirin.

The land in dispute is situated west to Sagias No. 192 Garrib and No. 232 Garrib (which originally was part of 192 Garrib) and run up to the medium filum aquae, i.e., the middle of the bed of the river. The plaintiffs brought their action for a declaration of title in respect of the low land demarcated under salukas Nos. 233 and 234 Garrib.

These two salukas lie just below the high land No. 232 Garrib which is the registered property of first defendants and No. 192 which belongs to second defendants.

Second defendants’ ancestor came to ownership in 1923 by purchase from one Mr. Nevile and first defendants came to ownership of their registered land by surrender from second defendants in 1933.

Now the plaintiffs claim is based on ancient ownership supported by an old wathiga and cultivation in between 1907 and 1914.

The defendants denied the claim and contended that as owners of the high land they are entitled by right of gussad to take the new land

accruing in the western part of their registered land up to the middle of the bed of the river.

The trial court ably transformed the points in dispute into the issues appearing in the record. The right of gussad is a customary right pre vailing only when there is no other mode of acquisition, e.g., ownership, positive prescriptive possession, or transfer by purchase, or otherwise.

In the present case the plaintiffs managed to prove ancient ownership. The evidence produced was very satisfactory. Some of the witnesses who testified in plaintiffs’ favour were very old and reliable. One of them was the Omda of the locality. The Settlement Officer accepted the plain tiffs’ evidence as to ancient ownership. He, in the meantime, did not ignore the evidence of the defendants proving that defendants possessed the part of the land exclusively within the prescribed period entitling them a prescriptive title and by so doing he found in favour of defendants not by way of gussad. but by way of prescription in respect of a portion of the salukas Nos. 233 and 234.

The trial judge referred to the right of gussad on which the defendants based their defence and said:

“I have purposely allowed the action because of the prevailing local custom of mirins in the area.”

He then referred to a note by Mr. Carless dated February 14. 1936.

In the comprehensive note by the Province Judge forwarding the papers, he referred to the Report by Mr. Ryder (1910) on land custom in Berber Province. Mr. Ryder noticed that a mirin once existed it is never lost.

I do not want to prolong this note by going deeply into the mirin analysis but it goes without saying that an ownership by a wathiga prevails over a right of gussad and the Settlement Officer was right when he found both to plaintiffs and defendants.

These applications, if the Honourable Chief Justice agrees, should be summarily dismissed.