of the Land Code, nor metrouk?,
If it be the fact that it is situate at a less distance than half an hour from Akroteri, it would appear to be not strictly within the definition of arazi-mevat, and it does not appear to us to come within that of arazi-miri?
as "such places as cultivated fields, pastures, etc., which have up to the present been granted by the State, the servitude belonging to the Beit-ul-mal, and which, when sales or reversions took place were formerly possessed by permission of the owners of Timars and Ziamets, who were considered as the owners of the soil, and during a certain interval by the grants of Multezims and Muhassils, but, subsequently, by reason of the abolition of these, they are up to the present possessed by the permission of the officer appointed by the State," etc. Arazi-miri?, in the opinion of the commentators of the law, is land which, at the time of the Ottoman Conquest of a country, was assigned to the Beit-ul-mal, or land which has been granted out since by the Sultan for purposes of cultivation, on condition that the "servitude" vests in the Beit-ul-mal. They also lay down that lands which, whether by becoming mahlul or in any other way, are left to the Beit-ul-mal are arazi-miri?, meaning by "left to the Beit-ul-mal," we suppose, lands of which the Beit-ul-mal has in any way acquired the servitude. It is not easy to define the meaning to be attributed to the word translated "servitude" : but it includes the obligation of the possessor to pay an annual tax, and. the right of the Beit-ul-mal to take possession of land left uncultivated without lawful excuse, or which has become mahlul owing to failure of heirs, and to re-grant the right of possession to those having the right to Tapu on payment of the Tapu value, or to sell the right of possession, on failure of persons having the right of Tapu, to strangers, by public auction. The Land Code does in one article contemplate that land, which in all probability has never been cultivated before, may be arazi-miri?. We refer to Article 123, which provides for the case where cultivable land comes into existence, if we may use the phrase, owing to the receding of the waters of lakes or rivers. Such land is treated as ara.zi-miri?, and follows the same procedure as other arazi-miri?. It is not easy to see why such land, assuming it in other respects falls within the definition of arazi-mevat, should not be so treated. Uncultivated lands lying near to villages, i.e., within a mile and a half, do not, therefore, appear to us to be strictly within the definition given in the law of arazi-miri?, arazi-metrouk? or arazi-mevat, but as they must be governed by some regulations, we must apply to them those provisions of the law which apply to that category of land to which they come nearest, i.e., those applying to other lands which have not before been cultivated-arazi-mevat, or, possibly, arazi-miri?. We proceed, therefore, to enquire what rights the plaintiff has acquired by reason of his cultivation, and possession of this land for the past. 16 years, if the regulations respecting arazi-mevat are to be: applied to it. Article 103 of the Land Code says that land of the category of arazi-mevat can be opened up and created into arable land by a person having need for it gratis with the permission of the official, meaning an officer of the Land Registry Office, and by the regulations regarding Tapu seneds, a kochan is to be issued to him on payment of three piastres, cost of paper, and one piastre, the clerk's fee. If any person has cultivated land of this category without permission, then he has to pay the Tapu value of the land. Regulation 5 of the regulations respecting Tapu seneds says: "As the opening up of 'boz' and 'kiratch' lands, and making "them into arable lands, is dependent on getting permission from the. Government, as stated in Article 103 "of the Land Code, land which has been opened up and "made into cultivated land, without getting permission "from Government after the publication of the said law, "shall be conferred on the owner on payment of the Tapu "value at the time of seizure and cultivation; but that, "if without excuse, the owner does not come within six "months and pay the Tapu value, as stated above, and "ask for a kochan, in that case it shall be conferred on him "on payment of the present Tapu value." It is not easy to say exactly what is the meaning of "boz"and "kiratch" : both words mean, according to Redhouse's dictionary, rough sterile land, and they probably mean rough uncultivated land. The judgment of the District Court, as we read it, lays down the proposition that the mere cultivation of arazi-mevat gives the cultivator a right to call upon the Government to register him as the owner. This is. a very wide proposition, and would appear to involve this, viz.: that a man who cultivates arazi.-mevat without the permission or knowledge of the owner, the Sultan, or, in Cyprus, the Island Government, can thereby convert the land into arazi-miri?, and force the Government to register him as, the possessor, even although his cultivation would .have been objected to had it been known, and even although the land be required by the Government for some other purpose. Mevat land is, in the Ottoman Empire, we believe, in theory, the property of the. Sultan as Caliph; and in Cyprus, since the Convention of the 4th June, 1878, by which the Island was assigned to be occupied and administered by England, such land must be regarded as vested in Her Majesty's Government as representing the Sultan. The persons to whom possession of such land is granted, are in the same position as tenants with fixity of tenure, their possession being subject to a condition, viz : that they will cultivate the land. To hold that a person by cultivation, without the assent or knowledge of the Government, is entitled to force the Government to recognise him as a tenant, is to place a limitation upon its powers which would place it in a worse position even than if it were a private owner. In our opinion Article 103 when it says "if a person cultivate this land and turn it into arable "land there is taken from him the Tapu value of the "land, it is granted to him and a Tapu sened given to him," does not mean that the Government is bound to grant the possession of the land to him, but may do so. The Government might, as owner of the land, object to its being broken up and cultivated, and we do not, therefore, think that the Government is bound to recognise a cultivation which has taken place without its knowledge. It is to the interest of the Government, undoubtedly, that as much land as is susceptible of cultivation should be brought under cultivation, as the individual cultivator, the community, and the Government are all thereby benefited, and in ordinary cases, no difficulty would be made in granting for its Tapu value arazi-mevat which bad been broken up and cultivated without permission; but in those cases in which the land so broken up without permission is required for purposes beneficial to the community at large, there is nothing in the mere fact that it had been cultivated which would disentitle the Government to refuse to grant the possession of the land to the person who had cultivated without obtaining permission to do so. Article 1272 of the Mejeile appears to contemplate that the Sultan may, if he chooses, grant the land as mulk; if the true principle of the law be that mevat land in the Ottoman dominions is the property of the Sultan as Caliph, which he may grant to individuals, as their absolute property (mulk) or on condition that they cultivate it, that the persons in the latter case only obtain a right to possession on fulfilment of that condition, and that on their decease those of their heirs who are defined by the law are entitled to the possession on the same condition, and that failing those heirs the land may be acquired by their relation's, or failing them by strangers, on the payment of the Tapu value, and that persons to whom possession of land is thus conceded, are in the position of @@@, then it appears to us that on principle the Sultan on the Government of Cyprus, as representing him, cannot be compelled without his or its consent to accept a person as tenant, merely owing to the fact that this person has @@@ and cultivated arazi-mevat. We proceed, therefore, to enquire in the next place whether the plaintiff by reason of his cultivation for the past 16 years has acquired any rights against the Sultan or the Government as representing him. The question at once arises as to whether a person by continuous cultivation of land that was arazi-mevat can acquire a prescriptive title against the Sultan or the Government of Cyprus. Article 103 of the Land Code, after defining what is arazi-mevat, and stating that this category of land can be cultivated gratis, on condition that the "servitude " shall belong to the Beit-ul-mal, goes on to say that "all "other provisions of the law concerning other cultivated "lands are applicable to land of this category also." The article then goes on to deal with lands which have been granted and have not been cultivated, and lands which have been cultivated without permission. Does the law, when it says that all other regulations applying to other cultivated lands are applicable to lands of "this category also," mean that these regulations apply to arazi-mevat that has been cultivated, or only to arazi-mevat that has been cultivated by permission of the official? The strict construction of the sentence, that the regulations applying to other cultivated land apply to land of this category also, would be that these regulations apply to arazi-mevat, but it is obvious that they cannot do so until arazi-mevat is cultivated. One of the regulations regarding cultivated land is, that if a person take possession of and cultivate, for 10 years, land which has become mahlul, he acquires a right to the possession against the State, and is entitled to be registered as the possessor without paying the Tapu value. If, then, the paragraph of Article 103 of the Land Law we have quoted above means that the regulations concerning other cultivated lands apply to all arazi-mevat that has been cultivated, whether it has been so cultivated with or without permission, the plaintiff in this case has obtained a prescriptive right as against the State to be registered gratis as the possessor of this land by reason of his cultivation for 16 years. But it appears to us that the true construction to be placed upon Article 103 is, that arazi-mevat can be granted to those persons who have need of it by permission of the official, and that when so granted, the regulations applicable to other cultivated land are to be applied to it. If the law intended that these regulations were to be applied also to the case of arazi-mevat that has been cultivated without permission, we should have expected that it would have said so explicitly: but, far from this, we find that after saying that arazi-mevat can be tuned into cultivated land with the permission of the official, and that all the regulations of the law as to cultivated and are applicable to lands of this category also, the article of the law goes on to deal with the case of a person who has obtained permission to cultivate but neglects to do so, before referring to the case where persons cultivate without permission. Had the law intended that the provision as to the applicability of the regulations concerning other cultivated lands should apply to lands cultivated without permission, we should have expected to find the provision inserted at the end of the article and worded so as to make it clear that it was intended to apply to both cases where arazi-mevat was cultivated with and without permission. Inserted, as it is, in the middle of the article and immediately after the provision dealing with the cultivation, by permission, of arazi-mevat, the strong presumption is that the words relating to the applicability of the provisions of the law with regard to other cultivated lands are intended to apply to the case with which the law has just been dealing. If this be the true construction of the article, then it appears that the law has designedly made the provisions which apply to arazi-miri?, apply also to arazi-mevat cultivated by permission, and has designedly omitted to make these provisions applicable to arazi-mevat cultivated without permission; in other words, arazi-mevat cultivated without permission cannot be regarded as arazi-miri?; if cultivated with permission, it is so regarded. It may be said that there is no distinction between the case where mahlul land is cultivated for ten years, and the right of the cultivator to be registered is acquired by prescription, the right of the State to the Tapu value being barred, and the case where arazi-mevat is cultivated without permission. On consideration, we think that the distinction is this: in the case of land which has become mahlul the prescription dealt with in Article 78 of the Land Code is a prescriptive right against the Beit-ul-mal which loses its right to receive the Tapu value of the land. With regard toarazi-mevat it is, in the eye of the law, the property of the Sultan as Caliph, and is, in the Otoman Empire, granted by him generally on condition that the "servitude" (@@@), belongs to the Beit-ul-mal or public treasury, though, as we have already mentioned, it appears from Article 1272of the Mejelle, the Sultan might, if he chose, grant the land as mulk. It may well be that the intention of the law is that as against the Sultan, the Caliph, prescription will not run, thought it does, as provided by Article 78, against the Beit-ul-mal. Nullum tempus @@@. In the case where a person cultivates arazi- mevat without permission there can be no prescriptive right @@@ against the Beit-ul-mal or the State, inasmuch accordance with the views of those jurists whose opinion been adopted in Turkey, the permission of the Sultan to cultivate is a condition precedent to arazi-mevat becoming arazi-miri?: that is to say, arazi-mevat cannot, by the mere fact of cultivation alone, for, however, long a period of time, acquire the character of arazi-miri?, inasmuch as one essential condition, the permission of the Sultan, as Caliph, to its cultivation, has not been obtained: and, if this is so, then there can be no question of prescriptive right having been obtained as against the State or Beit-ul-mal, as the right of the State or Beit-ul-mal to demand and receive the Tapu value of the land does not come into existence until the consent of the Sultan to the land being converted into arazi-miri? has been signified. If the Sultan could grant; arazi-mevat either as mulk or as arazi-miri?, and if we assume that a person by cultivation could acquire a prescriptive right to the possession of arazi-mevat which he has cultivated without permission, would it be open to him to contend that he had acquired a right to the land as mulk if he possesses and cultivates it for 15 years? If the land might have been granted to him either as mulk or arazi, and if by possession and cultivation for 10 years he is entitled to be registered for the land as arazi, be might just as well, if he possesses; and cultivates for 15 years, claim to be entitled to be registered for the land as mulk. This would involve this absurdity: that after the lapse of 10 years' cultivation, the land would be arazi-miri?, and. that after another five years' cultivation, land that was. arazi-miri? would become mulk. But no one can turn arazi-miri? into mulk without the express permission of the Sovereign, and hence this result would be impossible. This difficulty of ascertaining what rights a cultivator without permission of arazi-miri? acquires is another argument against holding that he acquires any rights of possession at all. If we turn to the law on prescription contained in the Mejelle, we find nothing to lead to the conclusion that prescriptive rights can be acquired be the possession of arazi-mevat. The law deals with the prescriptive rights that may be obtained as regards arazi-miri?, or mulk, but is entirely silent as to the possibility of any rights being acquired by the cultivation of arazi,-mevat, and, in our opinion, the law did not contemplate that any such prescriptive rights can be acquired. If our view of the theory of the ownership of arazi-mevat be correct, that is to say, that it is vested in the Sultan as Caliph when we find that it may be converted into arazi-miri? with his permission, but not without: but in the case of arazi-miri? the law distinctly allows of @@@ right being acquired by cultivation against the Beit-ul-mal or the State, and is silent as to the acquisition of any rights being acquired by the cultivation of arazi-mevat, and when we find that it would be impossible to define what rights a person could obtain by cultivation of arazi-mevat, if it were admitted that he could acquire any, we are driven to the conclusion that no prescriptive rights can be acquired by the cultivation of arazi-mevat without permission. The theory of the law that arazi-mevat is the property of the Sultan as Caliph, and is not the property of the State, is apt to become obscured owing to the fact that under the Land Code the permission to cultivate on condition that the land becomes arazi-miri? is given by the official of the Defter Khane, the department which has the control of arazi-miri? properties. It might thus appear that mevat lands were, in theory, the property of the State to the same extent as arazi-rnirie: but the view of those commentators, whose words we have had an opportunity of consulting, is that, at the time of the Ottoman Conquest, lands that were uncultivated, or whose owners were unknown, are regarded as booty which belongs to the Caliph as the successor of the Prophet. The Sultan has, by distinct legislative enactment in Article 103 of the Land Code, empowered his officials-meaning, we have no doubt, the officials of the Land Registry Department-to consent to arazi-mevat being converted into arazi-.miri?, but we think it necessary to hold that this consent is given by them as representing the Sultan as Caliph, to whom all arazi-mevat, in theory, belongs, and not in their capacity as representing the State or the Beit-ul-mal. We have, therefore, come to the conclusion that no rights are acquired by cultivation without permission of arazi-mevat. We, therefore, decide that the mere fact that land is cultivated does not afford any obstacle to its delimitation as State forest, unless the person cultivating has some legal right to the possession of the land, that the mere cultivation of arazi-mevat, without permission, will not give the cultivator a right to he registered, and that the right to registration for land that was arazi-mevat cannot be acquired by prescription; and we, therefore, think that the judgment of the District Court cannot be supported @@@ the grounds on which it proceeded, if the regulations @@@ mevat are to be applied to this piece of land. @@@ appears to us, however, that the facts admitted at the @@@ of issue and proved in the case, are sufficient @@@ us in coming to the conclusion that the judgment @@@ this piece of land to be excluded from the State @@@ correct, if it is to be regarded as governed by the @@@ of the law regulating arazi-mevat. The plaintiff alleged without any contradiction, that a notice was issued that anyone might break up khali land, that prior to the English Occupation he did break up the land, and has cultivated it ever since without disturbance. The statement as to the notice is rather vague, but we think that we are justified in assuming that the meaning is, that a notice was issued by or on the part of the Ottoman authorities. Had the plaintiff's allegation been denied, he would have been obliged to prove that such a notice was, in fact., issued, but it was admitted; and, considering that for a period of 16 years the plaintiff's cultivation has been allowed to continue without interruption, in spite of the fact that the Commissioner, who is the head of the Land Registry Office of the district, has for the last ten years sent a person each year to the land to see if it was cultivated, and the latter must have been aware that this piece claimed by the plaintiff was being cultivated, we come to the conclusion that the invitation to cultivate must be taken to be a permission to cultivate, and that the plaintiff is entitled to be registered as the possessor of this land, and is entitled to have it excluded from the limits of the State forest. It may be a question, too, whether when arazi-mevat is cultivated for a long period of time with the knowledge of those officials whose duty it would be to stop the cultivation, if the Government of Cyprus intended to object to it, the Government must not be held to have acquiesced in the cultivation and impliedly to have given permission for its cultivation; but it is not necessary for us to decide the point now. If, however, the regulations applying to arazi-mevat cannot properly be applied to this piece of land, and it should be treated as though it were arazi-miri?, the following considerations arise. The only fact known to us about this land is, that according to the plaintiff's statement, it was khali 16 years ago, the meaning of which, as we have before stated, we understand to be that it then bore no signs of cultivation. The only theory on which, according to our view, this land can be regarded as arazi-miri?, is on the assumption that it is mahul, and if it be considered as mahlul, then it appears to us that the plaintiff, by virtue of 10 years' undisturbed possession and cultivation, has acquired under Article 78 a prescriptive right, and is entitled to a kochan gratis. There are cases mentioned in the law in which lands are presumed to be mulhul, which appear to us to be much stronger than the present case. We refer to the cases mentioned in Article 123 which cultivable land is brought to light owing to the receding of the waters of lakes and rivers which have existed as such ab antiquo. The article provides that such lands are to be put up to auction and sold to the highest bidder, and the procedure relating to other arazi-miri? is to be applied to them. It seems clear from the words of this article that such land is not regarded as arazi-mevat, as might have been anticipated, assuming, at all events, that it happened to be at the required distance from an inhabited place; as, in the first place, the law itself does not say so, and, in the second place, it contemplates that the land shall not, like arazi-mevat, be given gratis to the person applying for permission to cultivate it. The commentators on the Land Code, to whose works we have access, all agree in the conclusion that such land is not regarded as arazi-mevat. Two of them say specifically that it is presumed to be mahlul, and that the regulations applicable to arazi-miri? which has become mahlul are applicable to these lands also. One says that whilst, according to the Sheri, such lands were regarded as mevat, now, under Article 123 of the Land Code, they cannot be cultivated, meaning in the same way as arazi-mevat, that is, gratis, on permission being given. On this point, then, the Land Code would appear not to have followed the Sheri. It is not easy to see why such lands should be regarded as mahlul. As by the hypothesis the rivers and lakes have existed in that condition ab antiquo, the probability of their beds having ever been cultivated is so remote as to amount practically to an impossibility. It does not appear to be because the lakes and rivers are regarded as the property of the State, and that, therefore, their beds may be regarded as arazi-miri?, because, according to the Mejelle, large lakes and rivers are regarded as common property. The Mejelle, after stating that, amongst other things, water is common to all and that all men are joint owners of it, goes on to say that the large lakes and rivers are common to all, and, therefore, their waters the property of all. If such lakes and rivers are considered as land covered by water, the inference should be that, as the water is the property of all men, the land under it is the property of all men, and there is nothing in the law to show how it comes about that the cultivable land under the water is to be regarded as land the servitude of which belong to the Beit-ul-mal. Here, therefore, we find a case of cultivable land which, in all probability, has never been cultivated regarded by the law as pure mahlul, and subjected to the regulations prescribed in Article 60 of the Land Code regarding such mahlul, that is to say, it is put up for sale by auction and the possession given to the highest bidder. It seems to us, about that other regulations regarding malhul lands would be applicable also, and including that one mentioned in Article 78 which enables a person by possession and cultivation to defeat the right of the Beit-ul-mal to the Tapu value of the land. If, in such eases as those we have alluded to, lands are presumed to be mahlul, it seems to us very reasonable to hold that cultivable land which appears to be neither mulk nor metrouk?, would be presumed to be mahlul also. We have considered whether the reason why the lands mentioned in Article 123 are to be regarded as mahlul and not as mevat, may not be because the lands are said in that article to be cultivable, and whether some distinction is meant to be drawn between cultivable lands and arazi-mevat. It is difficult to say how the distinction could be drawn, as arazi.-mevat is regarded as capable of cultivation: for it may be granted for the purposes of cultivation. There is no means laid down by the law of determining what is meant by cultivable laid as distinct from mevat: but if this is the reason for the cultivable land mentioned in Article 123 being regarded as mahlul, it seems to us that the same presumption may he made as regards all cultivable land, and that the piece of land in dispute in this action having been, as a matter of fact, cultivated for16 years, must be cultivable and presumed to be mahlul. We, therefore, come to the conclusion that, if the piece of land claimed by the plaintiff in this action is to he regarded as arazi-miri?, it must be considered as mahlul subjected to the same regulations as apply to mahlul, and that in this case also the plaintiff is entitled to have the land excluded from the State forest. There remains only one circumstance to be mentioned. It was alleged at the hearing of this action that the plaintiff's possession could not be regarded as undisturbed, inasmuch as the Sultan had claimed it "since the English," meaning, we presume, the English Occupation. No evidence was given as to what the Sultan's claim is, or how or when it was acquired or made, and the Sultans claims are not matters of which the Courts have judicial cognizance. But, assuming that the Sultan has claimed this piece of land, it appears to us that his claim must be that he is entitled as a private individual to the possession of the land, as, since the Convention of 1878, it appears to us impossible that he could claim qua Caliph, or as the head of the Uttoman State, any sovereign rights over the lands of Cyprus. No claim is put forward in the Court by or on behalf of the Sultan to the possession of this piece of land and whatever may be the rights as between the Sultan regarded as a private individual, and the plaintiff, it appears to us that, on the evidence before the Court, the plaintiff has succeeded in establishing that this is land @@@ which he is entitled to be registered as against the State. Appeal dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
Επεξήγηση AI βάσει του επίσημου κειμένου του νόμου. Ενδεικτική, δεν υποκαθιστά νομική συμβουλή.