SOTIRAKI EMPHIEDJI ν. A.F.G. LAW. (V1) 1 CLR 122 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V1) 1 CLR 122 1890 December 23 [BOVILL, C.J. AND SMITH, J.] SOTIRAKI EMPHIEDJI, AS AGENT FOR THE ARCHBISHOP OF CYPRUS Plaintiff, v. A.F.G. LAW, PRINCIPAL FOREST OFFICER Defendant. [It is thought desirable to report this case, the facts of which Differ in some respects from the case above reported though the decision proceeded on the same grounds.] APPEAL from the District Court of Famagusta. The plaintiff sued, as the duly appointed agent for His Beatitude the Archbishop of Cyprus, and the claim was to restrain the defendant, who had acted as President of the Forest Delimitation Commission, from interfering with about 850 donums of land, and for damages for including the same within the boundaries of State forest. These lands were claimed as appurtenant to the Monastery of Ayia Napa of which the Archbishop was the acknowledged head, and, consequently, the person having the lawful right to right to possess the same. Part of the lands had been cultivated for many years by persons paying rent to the agent of the Archbishop, but the greater part had been used us pasture land by the same and other persons, who also paid a rent, and the lands claimed in the writ were entered in the Mallieh Essass Books of 1288, and the Government has since then been taking verghi tax in respect thereof. It was admitted by the defendant that the lands claimed had been included within cairns set up by the delimitation Commission. The District Court gave judgment for the plaintiff, holding that inasmuch as the Government had been receiving verghi in respect of these lands for about nineteen years, the defendant was estopped from now claiming them as State forest, and that the legislature recognized that monasteries should hold land without registration under the terms of Section 5 of Law IV. of 1886. The defendant appealed. Collyer, Q.A., for the appellant: The evidence for the plaintiff in the Court below was,
(1)the production of an Essass book shewing that for purpose of taking verghi the pieces of land in dispute had been recognized as the property of the plaintiff;
(2)the evidence of certain villagers that they have always known the land as the property of the monastery. The Essass book does not confer a title to the lands, and the evidence of the villagers is not evidence of ab antique possession. There is no evidence of the registration as an ab antique property of the monastery, nor are there any title deeds in the names of monks [Article 122 of the Land Law]. I contend no evidence of title has been adduced. Pascal Constantinides, for the respondent: There is evidence that these lands have been cultivated for more than ten years. I do not rely on the Essass book as conferring a title, but the book, shews that the Government consented to the lands being broken up, that they have been in plaintiff's possession for a long time, that he has paid verghi on them, and practically that the Government acknowledged for twenty years that the lands belonged to the monastery. The Government cannot turn round now and say they will take away the lands. It is impossible to obtain a title from Constantinople, and, moreover, since the law of 1885, the formality of getting a title from Constantinople has been done away with. Section 11 of that law, as translated into Greek, says "all immoveable property shewn by witnesses to belong ab antique to any church or monastery shall be registered in the Central Office of Land Registration at Nicosia." There is proof here that for many years the monastery has had possession of these lands [quotes Articles 20 and 78 of the Land Law]. Judgment: The plaintiff claims that certain lands, situate neer to Ayia Napa, are attached to the monastery of Ayia Napa, and that the Archbishop as head of the monastery is the person having the lawful right to possess the same. We treat the action as an action instituted under the Forest Delimitation Law for objecting to a certain forest delimitation by which the lands claimed by plaintiff have been included in an area delimited as State forest. The plaintiff has no documents of title, and relies, as to certain portions of the land, on evidence that they have been continuously cultivated by the representatives of the monastery for some years past, and as to another portion, that the representatives of the monastery have exercised rights of grazing over it. We have held in the case of the Kykko Monastery v. the Principal Forest Officer, that no lands can be considered as appurtenant to an ecclesiastical institution, excepting such as are registered in the Imperial archives at Constantinople as lands attached to such institutions, and that State lands are not susceptible of being dedicated to religious uses except under an Imperial grant by which the reversionary interest of the State in such lands is wholly relinquished. Mr. Pascal has contended that evidence of registration in the Imperial archives at Constantinople is rendered unnecessary by the provisions of Clause 11 of the Titles Registration Law, 1885(VII. Of 1885), and we understand him to contend that the evidence of cultivation by persons connected with the monastery, and of such persons having exercised rights of pasturing over the lands claimed for a considerable period of time (over ten years in the case before us), establishes the fact that these lands are ab antique the property of the monastery. As we have explained in our judgment in the case of the Kykko Monastery v. the Principal Forest Officer, it appears to us necessary to conclude that Clause 11 of the Titles Registration Law, and other clauses as to monastery property, were drafted and enacted under an entire misapprehension of the effect of the law as it then existed. Clause 11 does no more than provide that ab antiquo property of monasteries may be registered in Nicosia. It says that "all property shewn by evidence to belong ab antique to a monastery" may be so registered, and it is on the words "Shewn by evidence" that Mr. Pascal has endeavoured to argue that oral evidence of cultivation is sufficient evidence that the lands cultivated have belonged ab antique to the monastery. Now our construction of the law is, that at the time when the Titles Registration Law was passed, the only method by which the representatives of an ecclesiastical institution could prove that land was attached to such institution was by production of evidence that such land was registered in the Imperial archive at Constantinople as land attached to such ecclesiastical institution; and we are unable to assent to the suggestion that when the Titles Registration Law said "immoveable property shewn by evidence to belong ab antique to a monastery," it was intended by the use of these words that the rights of monasteries should be in any way enlarged, or that the reversionary rights of the State should be in any way diminished. Whatever evidence was intended to be referred to by the persons who drafted and enacted that clause, it must be taken to be evidence to show that the lands had been lawfully made appendant to the monastery, and we know of no means by which that can be proved save by proving an Imperial grant, which would be assumed on production of evidence of registration in the Imperial archives. This action is avowedly instituted and prosecuted on behalf of the Archiepiscopal See of Cyprus. If the evidence before us establishes the fact that certain individuals have cultivated and exercised rights over the lands claimed, it might, in an action instituted on behalf of those individuals, justify a decision that they have thereby acquired a right to the possession of such land, and to obtain from the State a grant of such right of possession. Such rights, however, were they established, could not be regarded as rights appendant to the Archiepiscopal See. This conclusion renders it unnecessary for us to consider the other points that have been dealt with in the Court below, and that have been discussed before us. As the plaintiff proves no title, his action must fail, and this appeal must be allowed with costs. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο