Court dismissed claim that disputed land was village Merra, ruling it is state-owned Arazi Mevat land.

[*250] 1977 September 8

(STYLIANIDES, P.D.C. & HADJITSANGARIS, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

The Village of Ypsonas,

Plaintiffs,

and

The Attorney-General of the Republic

and Another,

Defendants.

(Action No. 667/71).

Immovable Property - ”Merra" - "Arazi mevat” - "Arazi metrouke" - "Hali" land - Meaning - Articles 5, 6 and 102 of the Ottoman Land Code and Articles 1270, 1271, and 1675 of the Mejele-Inhabitants of two villages using an area of land for grazing their animals and for cutting stones and bushes - No proof of exclusive ab antiquo use - No registration as "merra" - No assignment whatsoever and no recognition, at any time, by the Government that it was a "merra" - Said land not a "merra" - Not of the old "metrouke" category - It is state land of the old "arazi mevat" category.

M. Houry, for the Plaintiffs.

M. Kyprianou, Senior Counsel of the Republic, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by: -

STYLIANIDES, P.D. C. : The dispute in this action [*251] is over a piece of land shown on D.L.O. maps as plot 65 of s/P 53/54 of Ypsonas village 255 donums and 2 evleks in extent.

The Senior Mines Officer, issued to POMGRAD contractors a quarry permit for the operation of a quarry in the above described land. When POMGRAD started operating the quarry for the purpose of taking out stones necessary for the construction of the new Limassol port, the inhabitants of Kolossi village first took objection to this quarry business. They proceeded to the place and made representations claiming that area as their village Merra.

On 12.1.71, the inhabitants of Ypsonas village by letter of their advocate, Exhibit 8, addressed to the District Officer of Limassol, claimed that plot 65 is the Ypsonas "Merra", which was left or assigned to Ypsonas village from olden times and over which the inhabitants of the said village possessed exclusive right of pasture, etc. By the said letter inquiry was made whether the taking of large quantity of stones of that area apparently destined for use in the construction of the Limassol harbour was authorized by the government. It is stated in the said letter that if the contractors were acting without government authority, the village of Ypsonas would take action to prevent interference in the village Merra.

Letter Exhibit 9, dated 2.2.71, signed by the acting District Officer, is the reply to Exhibit 8. The plaintiffs were thereby informed that the land in question is government land, that it is registered with the Land and surveys department as Hali land and that a quarry permit had [*252] been issued to the contractors.

On 18.2.71, this representative action was filed by the village of Ypsonas against the Republic of Cyprus.

The plaintiffs claim (a) declaration that the land shown on survey sheet 53/54 as Merra of Ypsona village is and has always been from ab antiquo times a Merra of Ypsona village and that it is not and never was Hali land. (b) That any registration of the aforesaid Merra as Hali land, be set aside. Further remedies were claimed but in the course of the hearing they were withdrawn and the claim was reduced on the issue of the ownership of plot 65 aforesaid.

The plaintiffs contend in the statement of claim that the village of Ypsonas and its inhabitants possessed from time immemorial a "Merra" or pasture ground for their exclusive use, that the said "Merra" was recognised by the government as it was officially surveyed as a "Merra" at the time of the general survey, and it is described in the survey plan as "Merra" of Ypsona village, and in certificates of registration of land abutting it the boundary "Merra" occurs.

It is further alleged that it partly surrounds the village of Ypsonas and is used in common by the inhabitants of Ypsonas as a grazing ground or for cutting fuel and it is of the old Arazi Metrouke category and not Hali land, and that it was never held by Tapou. The government is estopped from saying that the said "Merra" is not a "Merra" assigned as such to the inhabitants of Ypsonas.

The claim was denied and contested. In the [*253] statement of defence it is alleged that the said plot 65, is government land and was recorded as such since 1920 when the general survey and valuation was carried out. That the words "Merra of Ypsona village" on the relevant survey plan were erroneously inserted by the draughtsman who copied the work of the surveyor at the time. That such words and the erroneous record of "Merra of Ypsonas" as boundary inserted in certificates of registration of adjoining lands do not constitute and do not prove ownership. That the said plot is at a distance of miles to the north west of the said village, and that the inhabitants of Ypsonas were never entitled to use same as grazing ground or to cut fuel therefrom. They never raised any such claim whereas the Kolossi people raised an unfounded claim. The land in question was never held by Tapou; it was Hali land and the plaintiffs are estopped from denying this. By counterclaim the defendant claims an order of the Coiirt directing the deletion of the words "Merra of Ypsonas village" from the government survey plan, a declaration that the inhabitants of Ypsonas have no right whatsoever over plot 65 s/p 53/54 of Ypsonas village, and that-the aforementioned plot is the exclusive and absolute ownership of the State. An injunction restraining the plaintiffs from interfering with the above plot is further prayed for.

The immovable property (Tenure, Registration and Valuation Law 26/45) effected radical changes in the system of Land Tenure. The categories of immovable property known under the Ottoman Land Code as "Mulk", "Arazi Memlouke", Arazi Mirie", ''Arazi Metrouke", and "Arazi Mevat" were abolished. [*254]

All immovable property known as "Arazi Metrouke" lawfully held or enjoyed communally by a town,

village, or quarter at the date of the coming into operation of the Law (1.9.1946) continues to be held or enjoyed as

the communal property of such town, village or quarter. (Section 3 sub-section

5 of Law 26/45 now Cap. 224 of the 1959 edition of our Statutes).

Sub-section 6 provided that all immovable property known as "Arazi Mevat" and all immovable property other than that specified in sub-sections 2-5 and all vacant or unoccupied immovable property, not privately owned or lawfully possessed at the time of the coming into operation of the Law, shall be owned, held and enjoyed by the Crown, as Crown property. After the establishment of the Republic all Crown property was vested in the Republic of Cyprus.

Section 19 as amended by Law 8/53 reads:

"Whereby Law or custom any immovable property in this section referred to as 'The Communal Property') is held or enjoyed communally by any town, village or quarter, the following provision shall have effect, that is to say:-

"(a) The inhabitants of such town, village or quarter shall have in common to the exclusion of all persons not being inhabitants thereof, the right of holding or enjoying the communal property subject to any condition under which the communal property is by Law or custom held or enjoyed. [*255]

"(b) No person shall have or acquire at any time any private or exclusive right to the communal property or to any part thereof.

"(c)………………………………………………………………………

"(d)……………………………………………………………………………”

The sole question for our determination is whether the subject property is property of the Republic or communal property lawfully held or enjoyed communally by the village of Ypsonas.

The matter is governed by the Law obtaining during the Ottoman occupation of this country and the English administration until the coming into operation of Law 26/45.

The evidence comes from officials of the Lands and Surveys Department and villagers of Ypsonas.

We shall consider the evidence of the officials of that Government Department, and of the villagers of Ypsonas separately. The plaintiffs, called -

(1) Andreas Christofis, Senior Land Officer in charge of surveys since 1965,

(2) Kriton Karseras, Asst. Land Officer, in charge of the management section of Limassol D.L.O. , Angelos Constantinides, District Land Officer of Limassol was the sole witness for the defence.

There is no record at all about this property prior to the general survey and valuation effected in 1919 under Laws 5/1880 and 12/1907. In 1919, P. Kokkinos, a surveyor, [*256] surveyed the area and prepared the original plan. That plan covered part of each of the villages of Kolossi, Ypsonas, and Erimi and three village representatives, one from each village, accompanied the surveyor in the fields. There were two advisers to the surveyor; the procedure envisaged in the relevant Law was followed. In the original plan prepared by the surveyor the whole area covering the subject matter of this action and plot 64 of Kolossi village was given the plot number

136 and was included within the boundaries of Kolossi village. On this plan in plot 136 the word "Merras" was written. When the examiner examined this plan, he changed the delineation of the boundary line between the two villages by marking the dotted lines appearing on Exhibit 1 , and wrote on it "Boundary cancelled". The portion of plot 136 within the boundaries of Kolossi village was given the number 64 and that within the Ypsonas area the number 65. The draughtsman at the office copied this plan on another sheet of paper and without reason or authority he wrote in plot 65 "Merra of Ypsonas village” and in plot 64 "Merra of Kolossi village”. These words appear in all plans. In 1962, however, after a long process which lasted for more than two decades the words ’’Merra of Kolossi village” were erased.

At the time of the General Survey and Valuation form 105 was completed. This form had eight columns.

The headings of these columns were: town, quarter or village; surveyor's plot number; locality; kind of property; area or extent

under cultivation; are or extent uncultivated; name of proprietor as stated by village representative; residence; and remarks. This form completed and the original plan, were [*257] sent to that government department, and it was then that the draughtsman copied the plan. From forms 105 forms 115 were prepared. Forms 115 are the Valuation Register. All the information contained in form 105 plus additional information was entered in form 115. From form 115 the Tax Register, form 116 was prepared. Form 116 is not original work but a compilation of the particulars of form 115. In form 115 of Ypsonas village (Exhibit 6) the subject property is described as "Hali". The names of the valuers appearing on Exhibit 6, are A. Dallas and HadjiStyllis HadjiGeorghiou. Dalias was the valuer appointed by the High Commissioner and HadjiStyllis was appointed by the elected members of the Legislative Council, as provided by Law 12/1907.

Exhibit 6 is signed by both valuers

under the following printed certification: "We, the undersigned valuers, duly appointed under the Immovable Property Registration and

Valuation Laws, 1907 to 1913, certify that, in accordance therewith we have valued the properties in the above described plan as the sums respectively stated against each in the respective column and that we agree to the same, save in the properties disagreed the valuation of which has been shown on the prescribed schedule N. 117." The date of this document is 22nd July, 1921. No valuation is recorded for plot 65, it is described as "Hali" in the columns "kind of property" and "name of the prorietor".

In form 116, the Tax Register of Ypsonas, at page 596 (Exh. 7) headed "Schedule of properties of Hali lands of Lofou" plot 65, is included. The explanation of the

insertion of the name of the village "Lofou" was given by P.W.2 Karseras: [*258] Ypsonas was a very small community and most of the property were

owned by Lofou people who used to come from Lofou to Ypsonas and cultivate their land. P.W.7 HadjiKyri stated that the permanent residents of Ypsonas were two or three families only, and all the other persons were coming from Lofou for farming, and Ypsonas was in effect the annex of Lofou. A Greek version of form 116 is always kept by the mukhtar of the village concerned and the mukhtar of Ypsonas was keeping form 116 in

which the subject plot was described as Hali. Plot 64, however, of Kolossi village in form 115 of Kolossi was originally described

"Merras" and the name of the proprietor is given "Merras of Kolossi". These words were deleted in red ink and the word "Hali" was written instead pursuant to inquiries which started in the twenties under A 25/67/29 as it appears in Exhibit 10. Form 115 of Kolossi was prepared prior to the issue of circular, R.G. 258/1921 , Exh. 5, issued by the Registrar General of the Land Registration and Survey Department. We consider pertinent to quote the contents of this circular.

"With reference to the Hali Chapter of the Cadastral Survey Industuctions part I please note that whenever a tract of land is claimed by the Village Authorities or Village Representatives to be a Merra of the Village such area will not be recorded in the Surveyors’ Schedules

N. 105 as 'Merra' but as 'Hali land' with a note in the remarks column of Form

N. 105 to the effect that it is claimed as Merra.

"After the completion of the Survey, enquiry will [*259] be made by the Land Registry Office into the claim, and if the claim is substantiated by a registration or a record in the Tapou Books, the entry in the Form N. 105, will be rectified”.

After this circular on instructions from the Registrar General files A. 2100/22 and A. 2567/29 were opened and inquiries were carried out in respect of properties affected by this circular in 37 villages in Limassol district. The object of the inquiry was to ascertain whether there was any "Merra" in any of these villages.

Form 105, the original work could not be traced. Indeed P.W.1 Christofis, stated that the only forms 105 in his department are only for two villages in Larnaca district.

In a number of certificates of registration, in respect of immovable properties which have the subject property as one of their boundaries, the subject property is described as "Merra" or "Merra of Ypsonas". These registrations are set out in list Exhibit 4.

In the procedure of issuing a title-deed no special investigation as to the owner of the adjoining property is made. At the local inquiry the clerk sees the plan and the mukhtar or the applicant gives to the local inquiry clerk the names of the owners of the properties adjoining the subject of the registration. The boundary itself is not an indication of ownership. The probable explanation given by P.W.2 Karseras, for the registrations in Exhibit 4, is the writing on the plan of the words ’’Merra of Ypsonas village". [*260]

The plans are neither proof or indication of ownership. The plan is a miniature of the ground drawn to a certain scale, preserving the shape and the area. The plan contains the plots and each plot is numbered and each plot has a reference, so that there is a complete, a universal system of reference.

We ascribe no significance at all either to the words appearing on the plan (Merra of Ypsonas village) , or to the description of the property in forms 115 and i 16 as "Hali" or to the description in the registrations set out in Exhibit 4. Form 105 which is the original work is not before us. It is not in existence. Forms 115 and 116 were prepared after the circular of the Registrar General, Exhibit 5. Either the property was described as "Hali” in form 105 or the compilers of forms

115 and 116 inserted the description "Hali" in obedience to the circular of the head of their department. We cannot guess and we cannot rely on this document. The reasons why we cannot rely on the words appearing on the plan and in the certificates of registration in Exhibit 4, of the adjoining properties are evident from what we have earlier stated.

In the original plan before it was taken up by the examiner the word "Merras” was written by the surveyor in plot 136. Plot 136 was never an operative plot. The examiner changed the boundary line of the two villages. The words "Merra of Kolossi" in plot 64 were erased after an inquiry which was carried out. The files of that inquiry were not admitted in evidence as they fall short of the definition of "public document" given by the Privy Council in Thrasyvoulos Ioannou and others v. Papachristof oros Demetriou and others, [*261] 19 C.L.R., p.72, and the certificates contained therein were not admitted as they are hearsay evidence ( Elinas v. Yianni and others, 23 C.L.R. 22).

Each side alleged that the other was estopped from denying that the property is a "Merra" or "Hali" respectively.

Having regard to the facts and circumstances of this case we are of the view that no estoppel arises in this case. Estoppels only arise when a person by words or conduct makes a representation which he intends to be acted upon, or which, whatever his intention may be, a reasonable man would take as intended to be acted upon, and thereby causes another to alter his position because he relies upon the act so done or the representation so made. Conduct by negligence or omission, when there is a duty cast upon the person who disclosed the truth may often have the same effect. (See Freeman v. Cook (1848) 2 Ex., 663, 76 R.R. 719; G. Smith and others v. Ahmet Kenan and others, 9 C.L.R. 48 at p. 51).

P.W.3, Kyriakos P. Zacharia, an 83

year old inhabitant of Ypsonas was the mukhtar of Ypsonas from 1925-1930. In the olden days his permanent home was at Lofou but, as the other

Lofites did, he was moving to Ypsonas for his farming business. This witness stated that the subject property was described in the form 115 held by the mukhtar, as "Merra of Ypsonas" and that they had title-deeds for this property. Both these allegations are untrue in view of the evidence of the officials and the exhibits to which we have already referred. He further stated that it was used only by the village of Ypsonas that they did not allow any stranger to enter

the "Merra", they prevented and reported Kolossi [*262] people who trespassed upon this land. He is contradicted by all the

other plaintiffs who testified in the action. He

stated, however, that when POMGRAD started cutting stones, the Kolossi people claimed the property as belonging to Kolossi village and actually they tried to interfere with the

quarry works.

P.W.4, Agathos Stylianou, aged 67, was the rural constable of Ypsonas from 1938-1952. He stated that the inhabitants of Ypsonas were pasturing in both Ypsonas and Kolossi "Merra" and the inhabitants of Kolossi were similarly grazing their animals in both areas. That the villagers used to cut fuel and take stones for building purposes from the same area, which the Kolossi people were not doing. He confirmed that the first to raise the claim on the subject property were the inhabitants of Kolossi.

Stylianos Georghiou, P.W.5 aged 70, comes also from the twin villages Lofou and Ypsonas. But for the last 20-23 years, he lives continuously at Ypsonas. From 1915 until 1926 he was looking after about 50 oxen. He used to graze those animals in the"Merras". The inhabitants of Kolossi, Ypsonas and Lofou used the whole area, meaning the area within the boundaries of Kolossi and Ypsonas villages as pasture ground. The inhabitants of both villages were cutting from the whole area bushes and wood for fuel. The whole area was "xapoliti". Though he did not see any person from Erimi going to that area, he stated that it was not prohibited to Erimi people to use the area.

Cleanthis Alkiviadou, P.W.6, born in 1900 - shepherd by occupation - stated that the villagers of Ypsonas [*263] and Kolossi herded their animals indiscriminately in the "Merras”, meaning the area both in Ypsonas and Kolossi. The inhabitants of both villages used to cut "shinies" bushes which they used to fence their threshing floors.

Zacharias HadjiKyri, P.W.7, 68 years old, stated that Ypsonas during his time was an annex of Lofou, only two or three families were permanently residing there,whereas Kolossi village has always been a substantial village. Though Ypsonas is 14 miles away from Lofou he considered these two villages as one village as the inhabitants of Ypsonas were the inhabitants of Lofou. The inhabitants of Ypsonas and Kolossi were pasturing their animals in what was described in Court as '’Merras” i.e. both "Merras of Ypsonas" and "Merras Of Kolossi", and were cutting fuel for their ovens and .for their threshing floors. There was no separate area for Kolossi and separate area for Ypsonas.

We accept that the whole uncultivated area and not privately owned, situated within the boundaries both of Kolossi and Ypsonas, was used indiscriminately by the people of Kolossi and of Ypsonas for herding their animals and cutting bushes. Ypsonas was a much smaller village than Kolossi, the permanent residents were only two or three families, though periodically the inhabitants of Lofou lived in Ypsonas for their farming business.

We watched carefully the demeanour of the witnesses who testified and we examined with the utmost care the evidence adduced. Our findings åre in brief as follows:-

(a) The land subject matter of this action is rocky uncultivated land, situated more than a mile away [*264] from the houses of the village of Ypsonas.

(b) It is part of a larger area, the other part having been included during the general survey within the boundary of the neighbouring Kolossi village.

(c) The writing on the plan "Merra of Ypsonas village" was done by a draughtsman in the office without good reason or authority.

(d) The entry in forms 115 and 116, Exhibits 6 and 7, is that this land is "Hali". These forms bear the signature of the two officials, one appointed by the High Commissioner, and the other by the elected members of the Legislative Council. We cannot, however, overlook the circular of the Registrar General dated 25.4.21, about three months before the date of form 115. As form 116 was prepared from the particulars contained in form 115, no significance can be ascribed to it. The only form which could have been of some importance is form 105 which, however, was destroyed long ago.

(e) Neither the government nor the plaintiffs are estopped in any way as estoppel does not arise in this case.

(f) No assignment has been established or could be established by evidence.

(g) The area of similar land situated within Kolossi village, though described in form 115 as "Merra”, [*265] it was later described as "Hali" after an inquiry and the relevant correction was effected.

(h) The land in question was used for grazing animals and cutting fuel, both by the inhabitants of Kolossi and Ypsonas.

We reject the evidence of the old mukhtar, D.W.3, who was contradicted with regard to form 115 by the District Land Officer and the Assistant Land Officer of Limassol, and Exhibits 6 and 7 and with regard to the use of the land by his co-villagers co-plaintiffs.

(i) The State does not guard "Hali" land. "Hali" land is not fenced. Only some of those who cultivated without authority government land were prosecuted. No one was prosecuted according to the evidence by the State, simply for grazing animals or cutting wild bushes ’’shinies” anywhere in Limassol district, in "Hali” land. Certainly no reference was made by any witness to the forests. Therefore, we may reasonably conclude that with the sufferance of the State the acts of grazing and cutting fuel in "Hali" land did not attract the prosecuting power of the State.

Is the subject matter of this action "Arazi Metrouke" and particularly "Merra" as claimed by the plaintiffs or "Arazi Mevat" as alleged by the defendant.

The Law applicable is the Ottoman Land Law obtaining in this country, prior to 1946. [*266]

The Ottoman Land Law has its origin in the disposition of the Cheri Law which was in force in the Mousoulman world, before the foundation of the Ottoman Empire. During the first centuries of the Islam the lands acquired by the conquerors constitute the most important part of the wealth acquired by the conquerors and it was term "butin”. "Butin” was disposed by the conquerors as follows. The 1/5 of it was kept for the State treasury (Beit-ul-mal), the rest was divided between the warriors who took part in the conquest. We need not, however, deal in any detail with the various categories of land during the first years of the Ottoman Empire as the Law governing the present case is the Law set out in the Ottoman Land Code which came into operation on the 21st April , 1858.

Two of the categories of land which could not be either owned or possessed by private individuals were the "Arazi Mevat" and the "Arazi Metrouke".

"Arazi Mevat" is defined in article 6 of the Land Code. "Dead land (Mevat) is land which is occupied by no one and has not been left for the use of the public. It is such as lies at such a distance from a village or town from which a loud human voice cannot make itself heard at the nearest point where there are inhabited places, that is a mile and a half, or about half an hour's distance from such”.

The same definition is found in article 1270 of the Mejele. ‘This is a primitive definition and means that this land is situated at a considerable distance from the built up area of a village. They are vacant lands, rocky [*267] places, stony fields, which are not in possession of anyone by title-deed, nor have been assigned ab antiquo to the use of inhabitants of a town or village. This land could be left by the official for cultivation but the legal ownership always belongs to the treasury.

We need not enter into the matter, how and in what circumstances this "Arazi Mevat" could be granted to the individuals.

According to this definition for land to be considered as "Mevat" four conditions are necessary:-

(1) The land must be uncultivated.

(2) It must not be in the possession of anybody because otherwise it would become a private land either or "Arazi Mirie" or "Mevcoufe". This land must not be a private property of anybody.

(3) It must not be land left or assigned to the use of the public in general or communal land.

(4) Finally, it should be away from the inhabited quarter. The Law sets out the distance of 1½ miles or half an hour walk, but as we have stated earlier this description of distances being of a very primitive measurement it must be at a considerable distance from the built up area of a village.

"Arazi Mevat", according to Ottoman Law, was the property of the Sultans as Caliphs. But the consent for cultivation was given by the officials as representing the Sultan as Caliphs to whom all "Arazi Mevat" in theory belonged and not in their capacity

as representing the State or the [*268] beit ul-mal. During the English occupation, by virtue of the convention of 1878, such land was vested in the British

Government as the representative of the Sultan and after the annexation when this country became a British Colony it vested in the Crown and naturally became the ownership of the Republic of Cyprus on the formation of the Republic and the coming into operation of our Constitution.

The lands which were assigned for the use of the public in general or for the benefit of one community and which in the olden days were known under the name "Mahmie" they took the name "Metrouke" which means abandon, because they were abandoned for the public or for one community. "Metrouke" later acquired the meaning of communal. In the Mejele article 1271 "Arazi.Metrouke" was defined as places which are near towns and are left to be grazing grounds and places for threshing floors and places for getting wood.

Article 5 of the Ottoman Land Code reads:-

"Land left for the use of the public (Metrouke) is of two kinds, (1) that which is left for the general use of the public, like a public way for example: (2) that which is assigned to the inhabitants generally of a village or town or of several villages or towns grouped together, as for examples pastures (Merras)".

The Law distinguishes between the lands left to the public at large and those left to one community, such as the population of a certain village, but it is understood that the public did not acquire a proprietary right of these [*269] lands. It had only a right of limited enjoyment which cannot even be considered as a right of possession. It could not be given to one or more persons and could not be exercised but by virtue of title-deed given to each one, showing his right of possession. But in the case of "Arazi Metrouke", according to articles 92 and 96 of the Land Code, no possession, no title could be given to any individual or to a number of persons jointly.

The second category of "Metrouke" concerns the use generally by the inhabitants of one

village or group of villages. There was no exclusive individual right of use. The inhabitants of the village had a collective right of use of

this land and if one attempted to have exclusive use, the other inhabitants had the right to stop him.

"Merras" is only a pasture ground assigned ab antiquo to a village during the existence of such village or upon formation of a new village. Such pasture ground "Merra" assigned ab antiquo to a village, the inhabitants of such village only could pasture their animals. The inhabitants of another village could not bring their animals there. On occasions, however, a pasture ground was assigned ab antiquo to a group of two or more villages in common. These lands were inalienable and nobody could acquire by prescription a right over them. (Article 102 of the Ottoman Land Code and Article 1675 of the Mejele). So such assigned land that has been left and: assigned ab antiquo is deemed to be pasturing ground. The delimitations subsequently made are of no validity.

The object of the legal restriction to this ab [*270] antiquo delimitations, that is the prevention of the encroachment on land of the State on the part of the inhabitants of a village for pasture grounds, in a way is that if the inhabitants abused the limits of their pasture ground, as described in the archives or fixed ab antiquo, they could not, after the lapse of years, come forward and claim a right of pasture by usage for the benefit of their village. (Chiha, Traité de la Propriete Immobiliére en Droit Ottoman).

This communal property was not held by Tapou.

In HadjiKyriako v. Principal Forest Officer, III C.L.R. 87, it was said:-

"Whatever may have been the case in the early days of the Ottoman Empire, when the rules of the Sher Law, on which the Land Code is largely founded, were laid down, if it ever were really the case that lands surrounding a village to the extent of a mile and a half on every sign were presumed to be 'Arazi Metrouke', and therefore incapable of possession and cultivation by an individual, it seems to us that the presumption has in practice long ceased to have any force.

"A reasonable construction of the Law, and anyone that we should adopt, would be that such lands surrounding a village as are used in common by the inhabitants as threshing floors or grazing grounds or places for cutting fuel alone are ’Metrouke’". [*271]

Lands could be of the ''Metrouke" category if assigned to a village at the time of the conquest or on the formation of a village, but there is no reason in principle why the State could not grant "Arazi Mirie" as a "Merra" on any terms it pleased. (HadjiConstanti v. Principal forest Officer, III C.L.R. 151 at p. 157).

There is no evidence of registration in the Imperial Defter Khané of this property as "Merra" or "Ab antiquo Metrouke". There is no evidence of any assignment whatsoever. On the evidence before us, this land is more than a mile away from the built up area of Ypsonas. It is not cultivable and it was never cultivated, it is a rocky place. The only growth therein is herbs and wild bushes and some wild carrob-trees. There is no evidence that it was at any time recognised by the Government of Cyprus, that it was a "Merra". As we have stated, the writing by the draughtsman on the plan and the description in some registrations of adjoining land are not in any way evidence of the category of this land. It was not used by the inhabitants of Ypsonas exclusively. On the contrary, the evidence establishes that the inhabitants of Kolossi and those residing at Ypsonas, used to graze animals, cut stones, and cut bushes from that area. Exclusive ab antiquo use has not been proved. According to the evidence, persons in the island were prosecuted only if they cultivated Crown-Government property but not when grazing or cutting wild bushes.

Having regard to the whole evidence before us and our findings of fact, including the location of the land in

question, its distance from the houses of the village, the [*272] nature of the land, the non-existence of any valid record, the lack

of any registration, the use made of the property, by the inhabitants of two neighbouring villages, the prosecuting policy of the State, and the fact that the words "Merra of Kolossi" were erased from the plan and the adjoining similar land within the boundaries of Kolossi is State land, we have reached the conclusion that the property subject matter of this action is not a "Merra". It is not of the old "Metrouke" category. It is State land of the old "Arazi Mevat” category.

In the result the action is dismissed and judgment is given for the defendant on the counterclaim, as per claims A, B, C and D.

With regard to costs in all the circumstances of the case we make no order as to costs.

Action dismissed.Judgment

as per claims A,B,C, and

D of the counterclaim with no order as to costs.