HEIRS OF FADLALLA OKLAH v. HUSSEIN ALl .

(PROVINCE COURT)

HEIRS OF FADLALLA OKLAH v. HUSSEIN ALl .

PC-REV-81-1959 Ed Damer

Principles

· land Law—” Karu” lands—Shendi District— assignment of rights—Government’s consent as landlord not required

· land law —Assignment of rights of cultivation. grazing, woodcutting— Karu lands ----- Shendi District-_Government consent as landlord not required

Cultivation, grazing and woodcuttjng rights on “karu” land in Shendi District may be assigned without consent of the Government (landlord), since these are registered rights by virtue of the 1906 settlement and are not held by contract.

Judgment

Osman El Tayeb P.J. August 2, 19 :—The subject-matter of this case is a plot of forty uds in Karu No. 1, Share No. 2, Ibreig Village, Shendi district These “karu” lands were first registered in 19o6 in the name of the Government as owner and with cultivation, grazing and woodcuttfng rights in the names. of individuals. Thus, defendants’ predecessor is the registered right-holder as to these forty uds.

Plaintiff claimed ,that in 1948 he entered into an agreement with the right-holders, by virtue of which the latter assigned to him his rights in these forty uds for the value of £S.29 received. He gave evidence that some time before 1948 rights were mortgaged to him to secure the sum of £S.5 paid and received by the right-holder, and that in 1948 they agreed on the assignment for the price of £S.29 Taking the mortgage debt into account, he paid £S.21 cash and a sack of durra valued at £S.3 Then the assignment was reduced to writing. He added that he had entered into possession before 1948

He is applying for specific performance of the agreement of assignment. Defendants denied the assignment and rested their defence on the mortgage.

By the evidence adduced the assignment was proved. The assignment was proved to be genuine by the writer and some of the attesting witnesses. The learned District Judge found that the assignment was established for the price of £S.29 paid by plaintiff and received by defendants’ predecessor in title. A decree for specific performance was granted.

in their application for revision defendants added to their above defence a new point of law, i.e., that since the owner is the Government, the rights over the land cannot be assigned or disposed of without the consent of the Government. They mean to say that as no consent was obtained here, the agreement of assignment is null and void and so specific performance cannot be granted.

The class of land in which the consent of the Government is required (or the disposition will be null and void) are leasehold lands, specifically town leasehold lands and hawashes of Shendi District with 99-year leases or other leases of similar nature. In this class of land the contract of lease contains a clause reserving the right of consent to the Government in its capacity as landlord.

in the “karu” lands, as in this case, no contract was entered into between the Government and the right-holders. It happened that the Settlement Officer found that the people were exercising the rights of cultivation, grazing and woodcutting, and as those rights were established, they were declared and entered in the register for the respective owners. It was not a new allotment in respect of which the Government could enter into a contract with the allottee, such a contract as would have enabled it to embody in it restrictive covenants like obtaining its consent in cases of assignment of the rights in the land.

In my opinion the assignment of the registered rights in these “karu” lands does not require the previous consent of the Government. As to the specific performance, the agreement was fair and bona fide, and for valuable consideration, it may be argued that delay defeats equities. The agreement was in 1948 and plaintiff came to enforce it in 1955 But the fact, proved and admitted, that plaintiff had been in continuous possession of the land, is sufficient excuse for the delay.