Land Law-Seluka land-Prior right to cultivation of owner of high land sa-
gia-Loss of right by grant or prescription

Prescription-Cultivation rights=-Seluka land

The owner of a permanent high land sagia has a prior right to the
cultivation of the seluka land, i.e., those parts of the bed of the river
which become exposed below his sagia as the Nile falls. The bare owner-
ship is in the government, but if it does not wish to retain the right of
ownership, the owner of the sagia has prior claim. The right to cultivate
may be acquired by a person other than the owner by grant or prescription.
Prescription and Limitation Ordinance 1928, s. 3 .

•• Court: Owen C.J.

Appeal

May 14, 1934. Owen C.J.: It is a custom of river land tenure
in all parts of the Sudan that the owner of the permanent high land
sagia has a prior right to the cultivation of those parts of the bed of
the river which become exposed below his sagia as the Nile falls. The
bare ownership of this seluka land, as it is called, is generally in the
Government, and the Government has, subject 'to this right of owner-
ship, always recognized this right. If the Government does not wish
to retain the right to itself, the owner of the sagia has prior claim.
It is a right appurtenant to the sagia,

But the right way may be lost: the right to cultivate this land
may be acquired by a person other than the owner of the sagia. It
may, for instance, have been made the subject of a grant to a third
party by a previous owner, e .. g., the Government itself. It may also
have been acquired by a third party by virtue of the provisions of the
Prescription and Limitation Ordinance of 1928. It does not follow
that, because the plaintiff in' this case is the owner of the sagia, the
defendants are wrongfully in occupation of the seluka land below it.

While agreeing, therefore, that the boundaries of sagia No. 2
are as set out by the le-rned judge, I cannot agree that the decision
he has arrived at as declared in the second paragraph of the decree
represents the real point at issue between the parties. 1 have no doubt
he is right in saying that the ownership of the seluka land below
plot No.2, block No.9, is in the Sudan Government. It is certainly
not in the plaintiff, for the reasons set out in his judgement. It is cer-
tainly not in the de .endants, They have never claimed it. The real
point in the case is, having regard to the fact that the Government,
as owners, apparently do not claim the right, whether or not the
defendants have rcquired the right to cultivate this land as against
the plaintiff. The learned judge himself has set out the issue as fol-
lows: "Does the right to cultivate the seluka land lying immediately
below the high land comprised in plots 1 and 2 in block 9 East
adjoining the river now vest in the plaintiff?"

So far as plot 1 is concerned he has answered it, but in the case
of plot 2 he has said that the seluka laud belongs to the Government,
which is no answer at all.

The second half of the declaration of the learned judge will
therefore be set aside and the case referred back to the High Court for