"تقارير إدارة أقسام ومناطق الأراضي المحتلة في بلاد الرافدين لسنة ١٩١٨. المجلد I" [و‎‎٨‎٧] (٤٧٠/١٧٨)

APPENDIX D.
Note on Mugharisji Holdings, Hillah District.
Revenue Administration Report, Chapter V.B. 4 .
1. Origin .—Mugharisji rights normally originate in the device to cultivate dates, which are more
profitable than ground crops. The fallah is assigned a plot of land by the tapu owner, or, in the case
of miri land, by the Government, on certain conditions, one of which is always the obligation to plant
the land with date palms. In some cases the fallah claims to have bought the land outright from
Government. In other cases it is alleged that he has squatted on the land without the leave of either
tapu owner or Government, and in such cases he claims that, though he has no sanad, he has acquired
Mugharisji rights in virtue of undisturbed possession. Both fallah and mallak should have documents,
but generally they have not, and when documents are produced they are generally so vague, especially
as regards boundaries, as to be useless; Government records have disappeared.
2. Nature .—The evidence as to the nature of mugharisji rights is so conflicting that it is impossible
to define them with exactitude. The essence of the arrangement is that fallah and mallak stand rather
in the relation of partners than in that of landlord and tenant. Each gets a share of the produce; I
have never come across an instance of a cash rent. The point in issue between them is how much
each is entitled to receive. I think there is no doubt that as long as the date-trees remain and the
fallah continues to cultivate the land, he can never be ejected. Mr. Ezra Daniel has admitted this
to me. Cases of sale of fallahs’ right and claims thereto by inheritance have been numerous, and I
have never heard it denied that the fallah’s right is heritable and transferable. It is, however,
uncertain when these qualities accrue to the right. In some leases it is provided that the fallah becomes
a mallak, i.e., a full partner, after a term of years; but I think he can sell or bequeathe his prospective
right at any time, the conditions of the original lease still holding good as against the purchaser or
inheriter. I have never had to eject a fallah, but I am informed by Mr. Ezra Daniel that even in case
of ejectment for good reason, the sharah law allows compensation, despite any provision in the lease
to the contrary. Sometimes a fallah will put in a man to cultivate for him, the two dividing the
share due to the fallah. A fallah on miri land often calls himself “ mallak-fallah,” and claims that
he is liable to pay to Government only the date-tree tax. It is probable that these claims are false,
but I think it is at present inadvisable to try to collect a share of the crops, or to investigate the
claims.
3. Suits .—Suits fall into three classes: those between mallak and mallak, those between fallah
and fallah, and those between mallak and fallah, of which the last are by far the most common. The
two former generally turn on a question of inheritance or sale, and are ordinarily best referred to a
civil court. The latter almost invariably resolve themselves into suits for profits. In hearing them
I have found that the only possible principle to act on is that of possession. The claimant must show
that he is, or has recently been, in actual possession of the share he claims. The original petition is
almost always presented by the fallah, who complains that the mallak is trying to recover from him
a share to which he is not entitled. The burden of proof should always be thrown on the mallak; he
should have a sanad from the fallahs, and if he has not he must prove possession by oral evidence.
No order passed by an A.B.O. should deal with title; he is concerned only with the necessity for
distributing the produce, though, as a matter of convenience and to prevent annual dispute, it is, I
think, best to direct that the distribution made shall hold good in future years pending the inevitable
settlement.
Claims to profits are generally disputed on one of two grounds. Either the fallah denies the
mallak’s title altogether, or, more commonly, he admits his claim to a certain proportion only.
Usually the fallah is willing to share the dates, but insists that the ground crops are his own. Cases
of this sort exhibit an infinite variety. Sometimes the mallak claims a proportion of all produce,
sometimes he admits that crops under the date palms belong exclusively to the fallah, but demands
his share from the “ tala‘,” or area not actually under dates. In other words, his contention is that
he leased the land for the purpose of planting a grove, that as the fallah is diligent in planting palms,
so does his ground crop area increase, the mallak getting his profit from the increasing output of
dates. The fallah contends that he received the land as a whole on the understanding that he was to
get all the ground crops in return for his trouble in planting the date-trees, the mallak being adequately
provided for bv the conversion of wheat land into grove. Mr. Daniel informs me that this is sometimes
the case. In some cases, besides the garden, and the land that will soon be converted into garden,
the fallah also cultivates a large area under wheat and barley. I do not think he can fairly claim to
pay no share from this to the mallak. A properly drawn lease would solve most of these difficulties,
but such is seldom forthcoming. As a rough rule, I think it best to bear in mind that the mallak is
almost certainly getting more now than he has ever got before, and to insist that he, who in most
countries would be the complainant, should bear the burden of proof.
4. Earms.—Farms of a share, especially a mallak’s share, are very common; indeed there is one
professional farmer. Some of them are given for perfectly good reasons, as, for instance, when the
mallak is resident elsewhere or when the mallaks are numerous. In many cases, however, the grant
of a farm is really an attempt to bolster up a rickety title, or to realise any small amount on a
doubtful claim, and sometimes it approaches actual fraud. Unless good reason is shown, it may safely
be presumed that the mallak who gives a farm has never been able to collect the amount he states to
be his due, and this fact tells against his claim to possession. If he finds it necessary to farm his
rights now, one may be sure that he never got as much in Turkish times as the present consideration.
The other common case is that of a mallak who leases the other mallak s shares. Sometimes he does
this bona fide, because he is the only sharer on the spot; sometimes he does it in order to assert his