OSMAN OMER AND OTHERS v. GABRALLA MOHAMED IDRIS

(COURT OF APPEAL)

OSMAN OMER AND OTHERS v. GABRALLA MOHAMED IDRIS

AND OTHERS

AC-REV-18-1958-

Principles

· Land Law—” Hag el ard “—Land-owner’s right of action arises upon maturity of trees Limitation of Actions—

· Land Law—” Hag el ard “—Land-owner’s cause of action arises upon maturity of trees not at time of planting

· Custom—” Hag el ard “—Merowe District—Right arises upon maturity of trees

The land-owner’s right of “hag el ard” in date trees planted on his land arises at the time of the maturity of the trees, not the time of planting; his cause of action therefore is not time-barred if brought within ten years of maturity.

Judgment

Advocates: El Rasheed Nayel ………..for applicants

Hassan Koheil ………………for second respondent

M. I. El Nur, Acting C.J. September 9, 1958 :—This is an application for revision of the order of the Provision Judge, Northern Circuit, made by Osman El Tayeb, in PC-REV-106-1957 dated February 6, 1958.

Respondents are the registered owners of one saham, one saham, four sahams and 5 sahams, respectively, in Sagia II, El Dueim Village, Merowe District. First applicant is registered owner of five sahams in the same sagia.

Over forty years ago the first applicant planted thirty-three date trees in the eleven sahams registered in the names of respondents. These thirty- three date trees matured and gave yield over thirty years ago, since which date they were registered exclusively in his own name.

After the flood of 1946, second, third, fourth and fifth applicants, Sons and daughters of the first applicant (who are not co-owners in the sagia), planted, not on behalf of their father, but in their own right, thirty-four date trees in the eleven sahams registered in the names of respondents. These are still immature and they have not yet therefore been registered.

In 1954 first applicant instituted a civil suit claiming that he acquired title by prescription to the eleven sahams registered in the name of respondents, having been in peaceable, public and uninterrupted possession thereof for over forty years. He could not establish his claim, and his suit was therefore dismissed.

Immediately after that, respondents instituted DC-CS-163-1957 (Merowe), asking for a declaration that they are entitled to half of the thirty-three mature date trees planted by and registered in the name of first applicant, and the thirty-four young date trees planted in the names of second, third, fourth and fifth applicants, which have not yet reached registrable age, by virtue of the local custom of “hag el ard.”

On hearing the evidence of both parties the following facts were established:

(a) According to local custom, the land-owner is entitled to a share, called “hag el ard,’ in any date tree planted by another on his land.

(b) That share of “hag el ard” varies according as to whether the land is fertile or fasad. In the former case “hag el ard” amounts to a half-share of the planted tree, and in the latter case to a one-third share of it.

(c) The eleven sahams on which applicants planted the trees, subject- matter of the suit, are fasad land.

(d) The thirty-three trees now registered in the name of first applicant were planted by him over forty years ago and started to yield over thirty years ago, since which date they were exclusively registered in his name.

(e) Respondents never claimed, nor had first applicant ever given to them, any share in the crop of those thirty-three date trees in respect of “hag el ard.”

(f) The thirty-four young date trees were planted by second to fifth applicants in 1946.

On the above evidence, the learned District judge came to the conclusion that respondents’ right of action in respect of “hag el ard” in the date trees in dispute had exti under Prescription and Limitation Ordinance 1928, S. 9, since the thirty-three trees registered in the name of first applicant were planted by him and gave yield over thirty years ago, and the thirty-four young date trees were planted by second to fifth applicants in 1946, i.e., over ten years ago. Consequently, the District judge issued his decree on September 1957, dismissing respondents’ claim.

On September 21, 1957, respondents applied to the Province judge for revision of the District Judge’s decrees. Upon hearing of that revision, the learned Province Judge upheld the District Judge’s decree in respect of thirty-three date trees which were registered in the name of first applicant, and reversed the decree in respect of the thirty-four young date trees planted by second to fifth applicants on the ground that the said trees were planted after the flood of 1946, i.e., October or November, 1946, and that since respondents initiated their action claiming “hag el ard” on those trees by their petition dated January I, 1955, i.e., before the expiration of a complete ten years from the date of their planting, their right was not extinguished under Prescription and Limitation Ordinance 1928. s. 9

The learned Province Judge therefore proceeded to calculate the “hag el ard” share of respondents in those thirty-four young date trees in the following crooked manner:

“In deciding their [ share in the date trees, I took into consideration their share in the land, and the shares of the owners of the trees, and the amount of land occupied by the trees. The one occupied by the trees, according to admission of both parties is 8. sahams. The total number of trees is sixty-seven [ the thirty three adult trees of first applicant]. So one saham is occupied by approximately eight trees. Out of 8 1/2 sahams, the registered share of defendants [applicants] is five sahams. So 3.5 sahams are the property of plaintiffs [ The number of trees in 3.5 sahams is 28 half of the whole date trees are the old on which plaintiffs (respondents) have no share, and so they are entitled to a share in the other half, that is, half of the twenty-eight trees occupying their land, say fifteen trees. The land is fasad, so their proportioned share is one- third of fifteen trees.”

Accordingly, the learned Province judge issued his decree on revision dated February 6, 1958, reversing the District Judge’s decree of September 15 1957, and declaring respondents’ right to one-third of fifteen date trees in Sagia ii, El Dueim Village, held by respondents (applicants)

On February 15 1958, applicants applied to this court for the revision of the Province Judge’s decree of February 6, 1958.

First applicant, namely Osman Omer, was certainly not aggrieved by that decree, since it confirmed the District Judge’s decree in respect to the thirty-three adult trees registered in his name. The interested applicants therefore are numbers two, three, five and six only.

Advocate El Rasheed Nayel, who represented the said applicants before us, pleaded that the Province Judge was wrong in deciding that respondents’ right of action in respect of “hag el ard” in the young thirty-four date trees was not barred by lapse of time, since the said trees were planted before and not after the flood of 1946 and respondents did not institute their action until June 1956.

The learned advocate further said that even if respondents’ right of action did not lapse, the calculation of the respondents’ share was clearly not correct.

In our view, whether the said thirty-four date trees were planted before or after the 1946 flood is totally immaterial in this case. The land-owner’s right of “hag el ard” in a date tree planted on his land arises only after the maturity and yielding of that tree. It is a right to a share of the yield of the tree rather than a share in the stem of that tree. It after the maturity of a tree the land-owner fails to claim his right of “hag el ard” in its crop for ten years or more his right of action would be extinguished by lapse of time as the court rightly decided in the case of the thirty-three trees registered in the name of first applicant.

It was admitted before us that the thirty-four date trees in dispute have not yet fully matured, and that only a few of them started to yield on a small scale. Therefore the right of the land-owners to claim their customary share of “hag el ard” in these trees is still in its infancy.

In our view, therefore, the learned Province Judge was quite correct in reversing the District Judge’s decision in respect of those thirty-four young date trees and declaring that the owners of the land upon which those thirty-four stood are, according to local custom, entitled to a one-third share of each of these trees.

We do, however, agree with the learned advocate for applicants that the manner in which the learned Province Judge elected to calculate the share of respondents in those trees was not explainable.

It was admitted before us that although the I sahams registered in the names of respondents and the five sahams registered in the name of first applicant formed one parcel and appeared in the register as an undivided share, yet they are in fact partitioned by agreement, and each of the respondents and first applicant knows where his share lies and possessed it as divided. The learned Province Judge said it was admitted before him that these thirty-four date trees stood in 8 sahams out of those sixteen sahams, but it is not clear who exactly are the owners actually in possession of these 8.5 sahams according to the agreed partition.

In our opinion, therefore, it is safer to say that the owner of the land on which any of the thirty-four trees in question stands is entitled to one- third of that tree by virtue of the customary right of “hag el ard,” and applicants two, three, four and five are jointly entitled to two-thirds of each such tree by virtue of plantation of “hag el toreya.”

We therefore order the issue of a decree reversing the decree of the Province Judge dated February 6. 1958, and declaring that respondents are entitled by virtue of the customary right of “hag el ard” to one-third of any of the thirty-four date trees planted by applicants in the land registered in their (respondents) names in Sagia ii, El Dueim Village. Merowe District.

We make no order as to costs.

Babiker Awadalla J. September 9, 1958:—I concur.