TSINKI AND OTHERS ν. KING'S ADVOCATE (V11) 1 CLR 10

TSINKI AND OTHERS ν. KING'S ADVOCATE (V11) 1 CLR 10 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 (V11) 1 CLR 10 1920 March 3 PRIVY COUNCIL. TSINKI AND OTHERS, Appellants, and KING'S ADVOCATE, Respondent. On appeal from the Supreme Court of Cyprus. CYPRUS-LAND TENURE-ARAZI-MIRI?-RIGHTS OF TENANTS-SINKING AND CONNECTING WELLS-PERMISSION OF GOVERNMENT. The tenant of State lands in Cyprus known as Arazi-Miri? has not the right, without the special permission of the Government, to sink wells or to connect a chain of wells for the purpose of supplying water to a village as distinguished from the exclusive purpose of cultivation. Quaere, whether he can do so, without permission, for the exclusive purpose of cultivation. APPEAL from a judgment of the Supreme Court of Cyprus (February 9, 1914) reversing a judgment of the District Court of Nicosia (January 23, 1913). The Appellants, thirteen in number, brought an action in the District Court against the Government of Cyprus, sued through the King's Advocate, claiming by the endorsement of the writ a declaration that they were "entitled to sink and connect chains of wells (for the purpose "of obtaining water and conducting water to their village) on Arazi-"Miri? land without having obtained the permission of the Government "so to do." The only issue framed in the action was whether or not the plaintiffs bad the right which they claimed. Arazi-Miri? is land which belongs to the Government Treasury, and which has been granted or perpetually leased to the mutessarif, with a right of user (hoquoq-tessaruf), the lordship (raqabe) remaining in the Government; a rent either in money or in produce is reserved and, in some cases, a rent in advance is paid. The Appellants were inhabitants of the village of Akaki; some of them were mutessarifs, and others sub-tenants holding from mutessarifs. No evidence was called at the hearing, the case being argued as a question of law upon the issue above mentioned. By Clause 25 of the Cyprus Courts of Justice Order, 1882, an Order in Council which dealt with the administration of justice in the Island of Cyprus after its occupation by Great Britain, it was provided that "in all actions relating to immoveable property the rights of the parties "shall be regulated by Ottoman law as modified or altered by Cyprus Statute law." Ottoman law is embodied in the Mejelle (civil law) and the Ottoman Land Code. The Mejell? does not deal directly with Arazi-Miri? tenure, but contains provision with regard to the hiring and letting of immoveables. The action was tried in the District Court by the President of that Court and Makrides, J., the former of whom was of opinion that the Plaintiffs were not entitled to the declaration which they claimed, while the latter was of opinion that they were so entitled; the action was accordingly dismissed. Upon an appeal to the Supreme Court (Tyser, C.J. and Fisher, J.) the judgment was affirmed. The learned Chief Justice, after an exhaustive consideration of the origin of Arazi-Miri? tenure, and the history of the Ottoman law with regard to it, said that the question depended upon the true construction of the Ottoman Land Code, remembering that it was a Code giving legislative authority to a number of Imperial orders and fetwas which previously existed. The effect was that the mutessarif of Arazi-Miri? had the right of possession and the right of taking the fruit, except so far as he was bound to give tithes to the State, in whom remained the raqabe-namely, the land itself and the mulk interest. Neither the right of possession nor the right of user, which was rigidly set out in Sections of the Code, included the right claimed. He said: "The intention of the legislator would no doubt be to create a tenure "which was good in all respects by the sacred law, and for this purpose "to set out clearly what use the mutessarif might make of the land. "Certain uses are set out. The intention of the legislator must have "been that the mutessarif is entitled to make such use of Arazi-Miri? "as is declared in the Land Code and no other. Therefore, his jus utendi "does not give the mutessarif the right to dig wells, and there is no "ground on which he can be granted the declaration which he claims." He concluded his judgment by observing as follows: "Any other interpretation might cause grievous harm to the community. In a country like Cyprus, where there is so often a dearth "of water, it would be a great misfortune to the community if a few "people could get control of the main source of the summer water "without any obligation to supply the needs of the community or any "restriction in the price they might charge, or any regulation to prevent "that lamentable waste which is sometimes seen when individuals "or communities have an uncontrolled right over water." Fisher, J. concurred with the judgment of the Chief Justice which is fully reported at 10, C.L.R., 54. Maugham, K.C. and Theodotou for the Appellants. The view taken by the Supreme Court that if the Ottoman Land Code did not expressly allow user of a certain kind it was not permissible, was wrong. Provided that a particular user is not forbidden, and does not amount to waste, it should be regarded as allowed. The declaration asked for may have been unfortunately formulated, but if the judgment stands, a holder of Arazi-Miri? is deprived of all right to sink wells, and that in many cases would render the land valueless. The land is occupied for the purpose of cultivation, and the mutessarif consequently has an unfettered right to sink wells for that purpose. He can also construct wells in combination with other holders for that purpose. If so, there is nothing in the Ottoman Land Code, or in the Mejell?, which prevents the application of surface water, to other purposes; it is not material on what terms. The Wells Act (Law VI. of 1896), Sec. 5, prevents any damage being done by the user. The Mejell? does not apply; the Supreme Court wrongly regarded it as having a bearing upon the construction of the Land Code. [Reference was also made to the Ottoman Land Code, Arts. 9, 14; Fisher's Ottoman Land Laws; Chiha's La propriete immobiliere en droit Ottoman (Alexandria, 1906), pp. 130, 131; and to Zade v. Tsinki.] Tomlin, K.C. and Giveen for the Respondents were not called upon. The judgment of their Lordships was delivered by: VISCOUNT HALDANE: This is an appeal from a judgment of the Supreme Court of Cyprus (Sir C. R. Tyser, C.J. and Fisher, J.) dismissing an appeal from the District Court of Nicosia in an action in which the Appellants were Plaintiffs and the Respondent was Defendant, and in which judgment had been entered in the Court of first instance for the Defendant, in consequence of the two judges in that Court having differed. The question decided was defined in an issue settled as being: "Are the Plaintiffs entitled to sink and connect chains of wells (for "the purpose of obtaining water and of conducting water to their "village) on Arazi-Miri? without having to obtain the permission of the "Government to do so?" The answer to this question is governed by Turkish Mohammedan law as obtaining, with such modifications as have been made in its application, to the Island of Cyprus by the Ottoman land laws and by Cyprus Statute law. Among other forms of land ownership under these laws is "mulk" land, which comprises special kinds possessed in full ownership, and State land or Arazi-Miri?, the legal ownership of which is vested in the Government, the title of the person in possession being derived from a grant made in consideration of what is called the" tapou" fee to the State and subject to the payment of a tithe. The right of possession by the tenant is in the nature of a burden on the radical title of the State, rather than of. a legal estate such as a tenant may own by English law. Although transmissible, and in this respect analogous to a leasehold, it is a usufruct granted in order that the land may be cultivated and rendered productive of tithe to the State as well as of profit to the person entitled to the possession. Neither in the Mejell?, the book which contains a code of Ottoman civil law, nor in the treatise on the Ottoman land laws written by Fisher, J., nor in the Statute Laws of Cyprus, have their Lordships found any distinct authority decisive of the points which have been raised in the course of the arguments before them. But they think that the rights of the mutessarifs, or tenants, of Arazi-Miri?, which burden the radical title of the Government, are limited by the end for which they were created, the cultivation of the land and the rendering it productive. If this be so, these rights do not extend to the sinking and construction of wells or chains of wells, without special permission from the Government, for the purpose of conducting water to supply villages, as distinguished from the exclusive purpose of cultivation. It may be that if the latter purpose is the only one, the mutessarifs may sink the wells required in order to facilitate cultivation and irrigation without such permission. Their Lordships express no opinion on the point, inasmuch as it does not arise in the case before them, and they only refer to it in order to guard against its being supposed that in affirming the judgment of the Court below they are endorsing certain somewhat general words used by the Chief Justice, who observes in passing that "his jus utendi does not give to the mutessarif the right "to dig wells." That point was left open in the earlier ase of Zade v. Tsinki, decided in 1910, and their Lordships do not propose to express an opinion on it. The only observation they desire to make in this connection is that they think that Art. 14 of the Ottoman Land Code does not, as was suggested in the argument for the Appellants, apply to their case, or affect either this or the larger question of the right claimed in this action. That Article provides that no one can arbitrarily make a water channel or a threshing floor on the land of another, nor do any other arbitrary act of possession on it without the sanction and knowledge of the possessor. Their Lordships are of opinion that the expression of this prohibition is not in itself enough to afford sanction for the claim to sink wells for purposes even of mere cultivation, apart from Government sanction. If the claim to do this can be sustained, as may be the case, it must rest, not on the words used in Art. 14, but on the general law. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο