Court sets aside land ownership trial due to missing necessary parties and incomplete conflicting registration analysis.

[*36] 1970 January 8

(VASSILIADES,P,TRIANTAFYLLIDES, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Stelios C. Marcoullis and others,

Appellants-Plaintiffs,

v.

Georghios Frixou Tsakkistos and another,

Respondents-Defendants.

(Civil Appeal No. 4616).

Immovable property - Dispute concerning ownership of land - Two conflicting registrations - Both parties claiming land by virtue of registration and adverse possession.

New trial - Immovable property - Issue of two conflicting registrations not adequately determined - All necessary parties not before the Court - Trial Court’s findings on both issues set aside - New trial ordered - Courts of Justice Law, 196O (Law 14/60) s. 25(3) and Civil Procedure Rules Order 35 rule 9.

Civil Procedure - Practice - Parties to proceedings - Dispute concerning ownership of land - Allegation that part thereof is included in registration of a third party - An order should have been made by trial Court joining registered owner as a necessary party to the proceedings - Civil Procedure Rules Order 9 rule 10.

Sir P. Cacoyannis, for the Appellants.

J. Potamitis with A. Anastassiades, for the Respondents.

JUDGMENT

VASSILIADES, P.: Mr. Justice Triantafyllides will deliver the judgment of the Court.

TRIANTAFYLLIDES, J.: The dispute between the parties [*37] concerns the ownership of a piece of land, about 9¼ donums in extent, in the area of the village of Kato Polemidhia.

The appellants-plaintiffs claim it by virtue of a registration in the name of the deceased Costas Marcoullis, whose heirs they are, as well as by virtue of adverse possession by the said deceased and, after his death, by them.

The respondents-defendants claim it as part of an area of land, 19½ donums in extent, which was purchased for them by their father, Frixos Tsakkistos, for £2,375, in December 1961, from one Georghios Araouzos and his two sisters.

The registration relied upon by the appellants is No. 316, dated the 5th November, 1900, in the name of Costas

Marcouilis, who died in April 1943; that of the respondents is No. 23654, dated the 12th November, 1960, in the names of their predecessors in

title, and transferred in their own names, by virtue of purchase, on the l8th December, 1961.

According to what has been contended by the appellants in their statement of claim, at a local inquiry by the Lands Office, which was carried out at the request of the appellants in 1962, the property which they claim was found to have been erroneously included under the aforesaid registration No. 23654; and when the respondents were called upon by the Lands Office to give their consent to the correction of the error, they declined to do so; hence the present proceedings. [*38]

By their defence the respondents denied any error in the lands Office records; they denied, too, the possession alleged by the appellants in the statement of claim and, on the contrary, they asserted expressly that their predecessors in title "occupied, cultivated and possessed" the land in question "adversely" for the period of prescription: so, the respondents claimed to be entitled to the ownership of the property "both under the relative certificate of registration No. 23654 dated the 18.12.1961 and/or in any case by virtue of prescription". Moreover they claimed the whole of such property (plot 11) as bona fide purchasers for value.

On the basis of the allegations in their defence the respondents filed with it a counterclaim for a declaration that they are entitled to the land in dispute by virtue of their said registration "and/or by virtue of adverse possession".

By their reply and defence to the counterclaim the appellants denied the respondents claims.

The main issues arising from the pleadings - as far as material to the appeal - were:

(a) Which of the two registrations in question should prevail.

(b) Whether either side became entitled by adverse possession to the land in dispute.

(c) Whether the respondents were bona fide purchasers for value. [*39]

In a strongly contested trial, lasting for several days, both parties called as a witness the same lands Office clerk (who gave evidence regarding three official local inquiries which he carried out in connection with the dispute in these proceedings); in addition, nine more witnesses were called (three by the appellants and six by the respondents) and quite a number of relevant documents and plans were put before the Court.

According to the evidence, Frixos Tsakkistos approached Georghios Araouzos, for the purchase of the land in question, early in December, 1961. The proposed deal involved not only plot 11, but also two adjacent plots (plot 12 under registration No. 22256 and plot 13 under registration No. 22252).

Tsakkistos received from Araouzos, in relation to this matter, the three certificates of registration together with a survey plan showing the three said plots. He decided to buy the property on the strength of the three certificates and the plan. He did not inspect the property, nor did he, at the time, investigate either into the registrations or into the possession of the property.

On the face of the respective certificates of registration the area of plot 11 was stated to be 19½ donums;

that of plot 12 as 4½ donums; and that of plot 13 as 4¾ donums; making a total of 28¾ donums. The three plots were purchased as one piece of

land, at the agreed total price of £2,775; and transfer was effected, subsequently, at the lands Office on the 11th December, 1961. [*40]

Tsakkistos has stated that he knew where such piece of land was - and it was not far from his own farm - but that he did not know the actual extent thereof otherwise than from the certificates of registration. He also admitted that he did not inspect the land prior/the purchase.

Apparently on being informed of what was going on, the appellants took steps to have their own property - as covered by registration No. 316 of the 5th November, 1900 - officially identified by the Lands Office.

As a result a local inquiry was carried out by a Lands Office clerk, witness Antonios Charalambou, on the 22nd January, 1962, for the purposes of appellants’ application. The result was that the land claimed by the appellants, under the said registration, was found to be part of plot 11; and it was marked on a copy of the survey map in use as plot 11/1, the remaining part of plot 11 being marked as plot 11/2.

Then, the appropriate Lands Office form was prepared for the required consent by the registered owners of plot 11, the respondents, for registering plot 11/1, which was covered by their own registration (No. 23654), in the name of the heirs of Costas Marcoullis, the appellants. Such consent was refused and the present action was filed on the 4th September, 1962.

On the closing of the pleadings it became obvious that, for the purposes of the trial, another local inquiry was necessary; and, on an application for directions, the[*41]

Court made, by consent, an order to that effect, on the 20th October, 1962. The same Lands Office clerk who had made, in January 1962, the previous local inquiry on the application of the appellants, proceeded now, under the Court's order, to carry out the second local inquiry on the 16th November, 1962, for the purposes of the action; both sides were present and a sketch was prepared showing the disputed piece of land to be part of plot 11, but of somewhat lesser extent than found on the first local inquiry; on the sketch was marked, also, a part of the grazing ground of Trahoni village - plot 10 - which according to the contention of the respondents was, in fact, the property of the appellants.

The same Lands Office clerk carried out even a third local inquiry, in connection with this case, on the 22nd April, 1966, a few days before the opening of the trial. On this occasion, besides the two sides, there was also present Georghios Araouzos who had sold plot 11 to respondents; a sketch was once again prepared, according to the allegations of the parties, and this time there was, also, shown on the sketch a part of plot 11 pointed out by Araouzos as being the property of the appellants' ancestor and not included in the property sold to respondents; such part being less than that claimed by the appellants.

There then followed the trial of the action and. judgment was delivered on the 20th February, 1967. After finding that the respondents were not bona fide purchasers for value, the trial Court had this to say about the conflicting registrations of the parties:- [*42]

"The second point to be considered is which of the two registrations prevails. I have carefully considered the evidence on this point and the fors and against of both registrations and I came to the

conclusion that the registration of the defendants which was obtained after a local inquiry and is based on the plan in use, prevails. The positon might have been different had the plaintiffs or their predecessors in title not slept upon their claim for about forty years after the general survey".

It has, of course, to be noted that the local inquiry mentioned by the learned Judge is not any one of the three local inquiries already mentioned in this judgment, but it must be a much earlier one in relation to the registration of the respondents.

We are of the opinion that, in the particular circumstances of this case, the trial Court disposed in a too summary way of the issue of the conflicting registrations, both of which were still subsisting registrations in the Lands Office records. There was before the trial Court a lot/of material on the basis of which the said registrations could be traced back to their respective origins; and these origins, as well as other collateral matters such as extents and boundaries, were considerations to be weighed, along with all other relevant factors, in resolving the said issue. Unfortunately, such a course, though embarked upon in the part [*43] of the judgment dealing with the history of the matter, was not sufficiently pursued to its conclusion for the purpose of determining the issue in question.

In a situation such as the present one we have to set aside the trial Court’s finding; we might either proceed to determine ourselves, in its proper context, the issue of the conflicting registrations, or, instead, order a new trial. We have decided to resort to the latter course because, inter alia, all necessary parties do not seem to be before this Court at present. Once it was alleged by the respondents that the property of the appellants was to be found in plot 10, the grazing ground of Trahoni village, there should have been an order, by the Court of first instance, under Order 9, rule 10, of the Civil Procedure Rules, joining the registered owner of such plot 10 - the Government - as a necessary party to the proceedings; and such an order will still have to be made in relation to the new trial unless the respondents abandon their aforesaid allegation.

Regarding the other two main issues, viz. whether the respondents are bona fide purchasers for value and whether either side has become entitled, by adverse possession, to the land in dispute, we see no reason to disturb the judgment of the Court below regarding the former.

In relation, however, to the latter issue we have decided that there should be a new trial, too, because though the trial Court determined the appellants' relevant claim it did not proceed to a full determination of the [*44] corresponding respondents' claim, as such, once it decided that the disputed land belonged to the respondents by virtue of registration. In the circumstances, and as the two said claims are closely interrelated, we have no other alternative than to set aside the trial Court's finding on this issue and order a new trial regarding the claims of both sides to the effect that in addition, or alternatively, to their entitlement by virtue of registration they are entitled to the said land by virtue of adverse possession.

In the result the decision of the Court below is set aside to the extent indicated, in this judgment and there is hereby made an order for a new trial, under section 25(3) of the Courts of Justice Law, 1960 (Law 14/60)and Order 35, rule 9, of the Civil Procedure Rules, in respect of claims 1 and 2 in the statement of claim and of claims (a) and (b) in the counterclaim.

Such trial to take place before a different Bench - once the trial Judge has expressed himself, already, regarding matters of credibility - and such Bench to be a Pull District Court in view of the value of the land in dispute.

Regarding costs, we order that all costs in these proceedings, here and in the Court below, should be costs in the cause.

Appeal allowed; retrial

ordered; order for costs as

above.