Court allows heirs to register land based on adverse possession prior to new registration law.

[*191] 1979 April 11

(PIKIS, P.D.C. AND ARTEMIS, D.J.)

IN THE DISTRICT COURT OP LARNACA

Constandis Panayi Abdoulla and Others,

Plaintiffs,

v.

The Attorney-General, of the Republic,

Defendants.

(Action No. 296/75).

Immovable property - Old registration - Not relating to a Government Survey Plan - Effect - Section 50 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224.

Immovable property - Adverse possession - Arazi mirie land - Period of prescription before the enactment of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 - Articles 20 and 78 of the Ottoman Land Code - Prescriptive possession - Burden and standard of proof - Heirs of person that has completed prescriptive period entitled to succeed to his rights over the land.

G. Constantinides, C. Varda (Mrs.) and Z. Mylonas, for the Plaintiffs.

A. Angelides, Counsel of the Republic, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

PIKIS, P.D.C.: The plaintiffs claim as heirs of Demetris Panayi Abdoulla, late of Livadhia, to be registered as the owners of a plot of land shown on an L.R.O. plan (exh.1), of an extent of approximately ten donums. This plan was prepared by Mr. Adamos Nikiforou [*192] (P.W.1), the employee of the Lands Department, who carried out a local inquiry in the presence of interested parties in order to identify and record on the plan the disputed land. He also researched the records and documents of his department and was able to outline the history of the dispute of the parties as well as inform us of the feasibility of relating an old registration dating back to the times of the Ottomans on the Government survey plan.

The deceased relation of the plaintiffs, through whom they claim to be entitled to be registered as owners of the property, died in the year 1943, that is long before the enactment of the Administration of Estates Law, Cap. 189 that provides for the vesting in personal representatives of the estate of a deceased person. It is settled that prior to the enactment of the Administration of Estates law, Cap, 189 the estate of a deceased person devolved on his heirs who could, in turn, maintain an action for the protection of their inheritance rights, The evolution of the system of personal representatives was the offspring of statute, it did not form part of the genera. principles of the common law and therefore it did not permeate into Cyprus Law until the enactment of the Administration of Estates Law in 1954. (See Eleni K. Papadopoulos and Others v. The Law Union and Rock Insurance Company, 10 C.L.R. 66 - Demeira G. Patikl v. A.G. Patiki and Co. and Others, 20 C.L.R. (Part I) 36; A.G. Patiki & Co. and Others v. Demetra Georghiou Patiki, 20 C.L.R. (Part II)77). The relationship of the plaintiffs to the deceased has not been seriously disputed and in our judgment they are entitled to prosecute the present action [*193] by virtue of their relationship to the deceased.

It is the case for the plaintiffs that the deceased was the owner of the disputed land and was entitled to be registered as such and the plaintiffs as his successors on the basis of an old registration of the year 1870 September (Eylul / 1288) that the Lands Department erroneously or inadvertently omitted to record in the general survey and that the deceased and his successors are entitled to be registered as the owners of the land inasmuch as the land encompassed by the aforementioned old registration can be related to an approved survey plan. Alternatively they claim ownership of the property contending that the deceased became the owner of the property by prescriptive possession for the period envisaged by the law then in force.

The defendants deny the plaintiffs' claim on three separate grounds. These are:-

(a) The old registration relied upon by the plaintiffs notwithstanding the name of the beneficiary could not refer to the deceased ancestor or relation of. the plaintiffs for the mere reason that he was not alive at the time of its entry in 1870;

(b) the property covered by the registration of 1870 is not identifiable on an approved survey plan and, therefore, it cannot be registered save to whatever extent it is established that the deceased had acquired a prescriptive right over it (see s.50 and the proviso thereto. Cap.224); and [*194]

(c) they denied plaintiffs' allegations that the deceased was, for any period of time, in possession of the whole or any part of the immovable property subject matter of these proceedings.

The three issues arising for consideration are:-

(a) Was Demetris Panayi Abdoulla the beneficiary of the registration of 1870?

(b) If the answer to (a) is in the affirmative can the old registration be related to an approved survey plan? And in the event of the first two questions being answered against the plaintiffs a third question arises;

(c) Whether their predecessor had become the owner of the land by virtue of prescriptive possession.

(a) The Implications of the Registration of 1870.

On any view of the evidence before us the ancestor of the plaintiffs could not have been born prior to the year 1885 and very probably he was born subsequent to that date. Also on any view of the evidence of his contemporaries on the subject of the age of the deceased it appears that if alive he would have been at present in his early nineties and no more. We received the evidence of a number of septuagenarians and octogenarians who knew the deceased well and all referred to the deceased in terms of a contemporary and indicated that if alive he could not have been much older than 90 years old, age being one of the subjects on which opinion evidence may be received. Faced with this [*195] fact we cannot but conclude that the registration of the year 1870 could not refer to the deceased and that such synonymity, as there is, should he explained away as coincidental.

Had we accepted the plaintiffs' contention that the beneficiary in question was their predecessor the question would arise whether such registration could he related to a Government survey plan. Our finding that their ancestor had no connection with such registration makes it unnecessary to probe further into the matter. However as we have all the available evidence before us, including documentary evidence, we may, for the sake of completeness, endeavour to answer that question as well before going on to examine the question of prescription.

(b) Old Registration - Relation to a Government Survey Plan. In accordance with section 50 of the Immovable Property Law, Cap.224, an old title to immovable property, old in the sense that it had been issued before the

introduction of the present system of land registration, gave rights of ownership to such area of land as could appropriately be related on any Government survey plan or any other plan made to scale by the Director. The ability to establish such relationship is, according to law, a prerequisite to the issue of a valid title to land. (See Rodothea PapaGeorghiou v. Antonis Savva Charalambous Komodromou (1963) 2 C.L.R, 221). Failing the establishment of the necessary link between an old registration and an approved survey plan adverse possession of a given piece of land was the only means by which to establish ownership [*196] over it in accordance with the proviso to s. 50, Cap. 224.

Mr. Nikiforou testified that notwithstanding arduous efforts on his part he found it impossible to relate the registration of 1870 to any survey plan and therefore such title to property is not registrable under the provisions of the law. He pointed out that it is misleading to attempt to locate without further inquiry property covered by an old registration considering the great changes that were brought about in the landscape, particularly since the year 1900 when the Larnaca/Famagusta road was constructed. Therefore, he explained, one of the boundaries indicated in the old title, namely "dromos", could not be taken as referring to the Larnaca/Famagusta road but some other road in the area though which one does not know.

It appears that the Ottomans had a loose system of land registration that the British inherited and allowed to subsist for a period of time before the undertaking of a number of general surveys that streamlined land registration along its present pattern and line. Before this possession was more often than not the best way to establish ownership over land considering that title deeds could not be related to any general survey plan or be easily translated to cover a given portion of land. Such plans as there existed were sketch plans giving at best a rough indication of the area covered by a title deed and its locality. The inability of the Lands Department to relate the old registration to any Government survey plan is, in our view, well founded. [*197]

Before ending with this chapter it is fair that we should refer to the complaint of the plaintiffs as to unequal treatment compared to the assertions of other persons to be registered as the owners of property in the vicinity on the basis of similar or comparable material. Even if there is a germ of truth in this complaint this could not carry the case for the plaintiffs any further for discriminatory treatment, though it may vitiate and render null an administrative action in the domain of the public law it does not confer positive rights nor could it conceivably find a basis for the acquisition of property rights.

We, therefore, hold that plaintiffs failed to establish a right to be registered as the owners of the property subject matter of these proceedings by virtue of any registration of the property in the name of their deceased ancestor. The only remaining matter on which we must adjudicate is whether Demetris Panayi Abdoulla became the owner of the property by virtue of prescriptive possession. This entails, in the first place, an examination of the principles relevant to the acquisition of a prescriptive title over immovable property prior to the death of the deceased in 1943, that is before the enactment of the Immovable Property Law, Cap.224 that introduced a system of land law fundamentally different from the Ottoman Land Code that it replaced. The new law, though it abolished the Ottoman system of division of the land into several categories, it did not attempt to interfere retrospectively with rights that crystallized under the old system. Consequently we must examine under what [*198] circumstances land of the arazi mirie category to which the disputed land belongs, as Mr. Nikiforou informed us, could be prescriptively acquired.

(c) Prescription of Immovable Property under the Ottoman Land Code. We shall not in this judgment undertake any analysis of the Ottoman land system beyond what is necessary for a proper understanding of the issues before us and in order to give a valid answer to the issue in hand. Land of the arazi mirie category could be defined as cultivable State land that could appropriately be contrasted with khali land, that is unbroken State land that could not, under the Ottoman Land. Code, be broken up except with the leave of a responsible State official. Therefore the term "khali land”, as encountered in the Ottoman Land Code, is not synonymous with the term "hali land" as used nowadays connoting State land of every description. It seems, on a purview of the history of Ottoman Land Law as applied in Cyprus, it was the Government's policy not only to suffer but to encourage the breaking up of khali land for the purpose of increasing agricultural production increasing

thereby State revenue exacted in the form of tithes (Bee Raghib v. Gerasimo, 3 C.L.R. 139; Michael Panayi Kizourou v. Michael Yianni Karaoli and Another (1965) 1 C.L.R. 88). In 1904 a

Government proclamation reactivated the need for the prior approval of the authorities for the cultivation of khali land. Thereafter khali land could not lawfully be turned into cultivable land amenable to private ownership except with the prior approval of the appropriate State agency. [*199] However this proclamation had no application to land of the arazi mirie category that the public could lawfully continue cultivating without the consent of a State official and could thereby acquire rights of ownership over it if the prerequisites to prescription under the Ottoman Land Code were satisfied. (See Sava Hadji Kyriako v. The Principal Forest Officer, 3 C.L.R. 86). This state of affairs continued up to the year 1941 when the Government Lands Law was enacted, Cap. 221 requiring approval for the cultivation or cession of Government land. Neither this law nor the Immovable Property Law that was subsequently enacted in 1946 attempted to interfere with rights that accrued or vested under the Ottoman Land Code. On the contrary, such rights as had accrued were specifically safeguarded. (See the provisions of s. 3, Cap. 224).

By virtue of the combined effect of articles 20 and 78 of Ottoman Land Code, land of the arazi mirie category could be acquired by a prescriptive possession of ten years. And prescription was equally possible over private as well as State land. (see Mehmet v. Kosmo, 1 C.L.R. 12; Hassan v. Sava, 2 C.L.R. 58 and Hji Kyriako (supra); see also Fishers’ Ottoman Land Laws, Oxford University Press, 1919). The attributes of prescription were defined by s.1 of the Immovable Property Limitation Law 1886. The definition of adverse possession supplied by the above enactment is very similar to that given by s.2, Cap. 224. In Christofis Yianni Diplarosv. Photou Nicola (1974) 1 C.L.R.198 HadjiAnastassiou J. contrasts the two definitions and adverts to their differences observing that the principal difference between the two [*200] definitions relates to the reaction of the owner over possession by a third party. The present definition unlike its predecessor requires a kind of sufferance, express or implied, on the part of the owner to the continuance of adverse possession whereas the emphasis toy the former definition was on possession and not the implications of inactivity on behalf of the owner.

Before ending this discussion we may note that the heirs of a person who completed the prescriptive period were entitled to succeed to his rights over the land. (See Della v. Haji Michaeli,

6 C.L.R. 23).

Guided by the principles above referred to the question we must answer is whether the plaintiffs proved that their deceased ancestor acquired a right to toe registered as the owner of the land in question of the arazi mirie category, the whole or any part of it, toy prescriptive possession. The burden of proof is on the person alleging prescriptive possession, that is the plaintiffs and the standard of proof is fairly heavy entailing positive proof of acts of possession. (See Andrea and Others v. Dourmoush (1962) C.L.R. 7 and Thecla Yiangou Aradlpioti v. Christos Kyriakou and Others (1971) 1 C.L.R. 381).

The Evidence

The evidence adduced toy the plaintiffs tends to establish that from the early years of the 20th century and for a long time thereafter until his death, Demetris Panayi Abdoulla, late of Livadhia, was cultivating part but certainly not the whole of the property claimed [*201] by the plaintiffs. A significant part of the land near the Larnaca/Famagusta road was marshy land, unsuitable for cultivation. The width of this land was variably estimated between two to four donums. Subsequent to the death of Demetris his brothers Demetris and Constantis took over the cultivation of the land that continued to be planted, as in the past, with vegetables.

Summarizing the evidence of

plaintiffs' witnesses it can be abbreviated as follows: Petros Adamou (P.W.2), an old man of 85, recollected that since

the early years of his manhood and for many years subsequently he was sowing and ploughing the land on instructions from Demetris. In' his estimation the cultivable area ended at a point some 2½ donums from the boundaries of the road. Antonis Papouis (P.W.3), had an accurate recollection of the fact that the deceased was cultivating part of the disputed property from a point some, three donums from the road boundary inwards. His recollection goes back to the age of ten when he became a shepherd, that is a long time ago, considering he is now 76, and he had plenty opportunity to see Demetris cultivating the land as his family owned property situate nearby. Another co-villager of the deceased, Panayis Mousoullou (P.W.4), again an old man of 75,testified to the fact that Demetris had been cultivating part of the subject property; in fact the witness himself had been engaged to plough the land many times. In his opinion the width of the marshy land was between one to two donums. Loizos Milos (P.W.5), now aged 67, testified, without being challenged in cross-examination, that he had known the deceased to cultivate part of the land [*202] adjacent to the road but was unable to indicate with any precision the width of the flooded part of the land. Lastly, Antonis Constantinou, a nephew of the deceased now aged 51 made reference to the steps taken by the heirs of the deceased over the last twenty or so years to secure registration of the property in their names albeit without results. The history of the matter can also be traced through the documentary evidence before us, particularly the file produced as exhibit 3. Mr. Constantinou stated in evidence that from his early childhood he remembered his deceased uncle cultivating the property that was taken over, after his death, by his uncle and father.

The evidence of defence witnesses Panayiotis Loizou (D.W.2) and Christofis Eleftheriou (D.W.3) sheds little or no light and is of no assistance in resolving the issues in dispute. On the other hand the evidence of Nicolas Antoniou (D.W.1) is of some assistance. He testified that he knew the deceased to be cultivating a plot of land near the Larnaca/Famagusta road but estimated the distance of the cultivable portion of the land from the road to be equal to four donums whereas plaintiffs' witnesses put it at three donums or less.

Having carefully examined the evidence before us we have reached the conclusion that the deceased was, for a long period of time prior to his death, cultivating part of the land subject matter of these proceedings (hatched in red on exh.1) but not the whole of it. The uncultivated part extended over an area of three donums from the boundary [*203] of the old Larnaca/Famagusta road. Beyond that point the land was in the possession and it was cultivated by Demetris Panayi Abdoulla. In our judgment this piece of land was in his possession and he was cultivating it openly and continuously from about the year 1910 till his death in 1943.

In the light of the principles earlier expounded and haying regard to our findings we find that the deceased had acquired ownership of the property above specified and was entitled to be registered as the owner of it as far back as the early nineteen twenties. His rights passed to his heirs who are entitled to be registered as the owners of that part of the subject property that the Court has found to have been in the possession of Demetris Abdoulla as earlier indicated. Therefore we order that the above specified piece of land be registered in the name of the plaintiffs. The defendants are adjudged to pay costs for one advocate.

Order for the registration of a

piece of land in the name of

plaintiffs. Defendants to pay

costs for one advocate.