NAIM H. ALI AND OTHERS ν. CHRISTOFORO ELIA (V5) 1 CLR 68 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 (V5) 1 CLR 68 1900 April 28 [HUTCHINSON, C.J. AND MIDDLETON J.] NAIM H. ALI AND OTHERS, AS HEIRS OF HAJI ALI, DECEASED, Plaintiffs, v. CHRISTOFORO ELIA, Defendants. IMMOVEABLE PROPERTY-HOUSE AND GARDEN-MULK-SALE WITHOUT REGISTRATION BY ONE HEIR WITHOUT ASSENT OF OTHERS-REPAIRS AND PLANTING BY PURCHASER-CLAIM BY VENDOR AND CO-HEIRS FOR RETURN OF PROPERTY ON TENDER OF PURCHASE MONEY AND REASONABLE EXPENSES-WRONGFUL APPROPRIATION-BONA FIDES-REASONABLE GROUNDS FOR BELlEF-KOCHAN-LAW OF 28 REJEB, 1291, ART. I-LAND CODE, ART. 35-MEJELLE, ART. 906. N. without the assent of his co-heirs sold Mulk properly to C. without registration C. occupied the property for some years expending more than the amount of the purchase money on repairing and planting it. N. and his co-heirs then brought an action for the return of the possession of the property offering to repay the purchase money and the reasonable amount of expenses incurred by C. in repairing and planting HELD (reversing the decision 0/ the District Court): that C. Was not entitled to retain possession 0/ the properly on payment of its value to N. and his co-heirs in as much as C. having taken possession without registration would not reasonably have thought he Was justified, in law in expending money in repairing and planting the property, and there/ore, that the co-heirs of N. were entitled to recover Possession against C. as a wrongful appropriator. HELD further, that as N. and his co-heirs had tendered, the repayment of the purchase money and a reasonable sum to meet the sums expended by C., N. and his co-heirs might have judgment to recover possession of the property on payment of these sums. APPEAL from the District Court of Papho. Lascelles, Q.A., for the Appellants. Artemis (Pascal Constantinides with him) for the Respondents. The facts and arguments sufficiently appear from the judgment. Judgment: The claim in this case was for an order of the Court to compel the Defendant to deliver up possession of a house and garden formerly belonging to one Haji Ali Veli, deceased, predecessor in title of the Plaintiffs. In 1888 or 1892, it was not clear from the evidence in which year, but as the fact is immaterial to our decision it is not necessary to say which, the Plaintiff Naim Haji Ali purported to sell the property in question to the Defendant for £14, and since the sale it has remained in the Defendant's possession and e has planted trees in the garden and improved and repaired the house. The so called sale was not perfected by registration and apparently was the result of a verbal agreement between N aim, without the authority or assent of his co-heirs, and the Defendant. Naim says that he received the purchase money himself, and did not tell the other heirs until a year afterwards, as he intended to give them other property and that when he did tell them they agreed, hut to what they agreed it is not clear. The Plaintiff Naim declared his readiness to return the purchase money £14, and any reasonable sum which the Court might consider sufficient to cover the expenses incurred by the Defendant in building and planting. The property is .still registered in the name of H. Ali Veli. The defendant admits that he knew at the time of the sale that there were other heirs besides Naim, and says that he told Naim to bring the heirs themselves or a power of attorney from them, and that he did not pay the purchase money until Naim produced a paper in Turkish purporting to be an authority from the other heirs. The issues settled for trial were:
(1). Was the action properly instituted or not?
(2). Did the sale take place in 1888 or 1892?
(3). Was the sale effected only by Nairn H. Ali, or by him for himself and as agent for the other heirs?
(4). Is not the occupation by Defendant a bona fide one?
(5). How much did Defendant really expend on improvements of the property?
(6). In any event is the claim for return of the house renewed as it is by Plaintiffs a legal one? The District Court after hearing evidence on both sides, principally as to the value of the repairs and planting carried out by the Defendant, came to the following conclusions amongst others already indicated: (a). That the house described in the writ of summons belonged to deceased H. Ali Veli under kochan No. 1271 dated 14th March, 1292. (b). That Defendant had repaired the house and planted trees on the land to the value of upwards of £14, the sum expended being greater than the value of the land. (c). That Defendant repaired the house and planted the trees because he thought he was justified by law in doing so; and as he had thus acted ill good faith, the Court under Art. 906 of the Mejelle declared him the owner and dismissed the Plaintiffs' action. Against this decision the Plaintiffs appealed and for them it was argued by the Queen's Advocate that Art. 906 had no application to transactions purporting to be sales; that even if it had, the Defendant could not be said to have acted in good faith within the true meaning of Art. 906, inasmuch as he knew he was not registered for the property in question and the clear object of that article is to protect people who believe that the property on which they build is their own. The Defendant here had not obtained the assent of all the owners, and had no real ground for believing he was, or acting as, the legal owner. It was also argued, from the analogy of Art. 35 of the Land Code, that Art. 906 limits its protection to registered wrongful appropriators and that bona fides must be evidenced by registration. It was a question also here whether simple repairs were on the same footing as new buildings; and this was important to consider in arriving at a conclusion in regard to the values upon which the District Court based its decision, assuming their construction of the article to be correct. The Queen's Advocate also submitted that the Plaintiff' Naim not having been asked any question as to the statement made by the Defendant, that he had required and received the assent in writing of the other heirs to the sale, before paying the purchase money, it could not be taken as proved that such assent had been obtained. In support of the judgment Mr. Artemis contended that Art. 906 was applicable, and that if the building or planting took place with the knowledge of the owners, as it was submitted it did here, then the appropriator must he deemed to have acted with their tacit permission, and therefore in good faith: that Art. 906 of the Mejelle had no analogy Lo Art. 35 of the Land Colle and did not require either expressly or impliedly that the wrongful appropriator should have a title-deed to give him its protection: that this was an exceptional case not governed by previous rulings of the Supreme Court, and that in any event the Defendant ought not to be ordered to pay the costs. Before proceeding to deal with the construction of Art. 906, we consider it necessary to state that in our opinion the Defendant is not justified in contending that he had the assent of the other heirs to the sale to him by Nairn. The Defendant does not produce the Turkish document he speaks of, nor does he say when it was brought to him; nor that he knew what its contents were; and not a single question on this point was addressed to, the Plaintiff Naim by the Defendant's Advocate. As regards ratification, it appears from the evidence that only Emine of all the other Plaintiffs was resident in the same village property is situate, and there is nothing to show that she knew of the Defendant's proceedings, or assented to what Naim had done. It is impossible to say then from this meagre evidence that the 'other Plaintiffs did in fact assent to and ratify Naim's action. Now the question which we have to consider is, whether a person who has purported to buy a Mulk property like a house and garden from one of the joint owners without the asset of the other joint owners, and who has repaired the house and planed trees in the gardens, is entitled to claim the protection of Art. 906 of the Mejelle, upon an action brought against him for the recovery of the property by all the joint owners, included the vendor tendering the return of the purchase money and a reasonable sum for expenses incurred by the purchases. Art. 906 enacts that, if land having been wrongfully appropriated be build or planted on, the buildings and trees must be removed and the land returned to the owner. Should the removal however be prejudicial to the land, its owner can become the owner of the building or trees by paying to the wrongful appropriator the value of the material after deduction of expenses required for demolition of the building and the uprooting and cutting down of the trees. If however the value of the trees or of the building is greater than that of the land, and the person who planted or build did so because he thought he was justified in law in doing so, (that is, acted in good faith), then be become the owner of the property absolutely on paying its value to the owner. We think it is clear from the heading of the Chapter including Art. 906, which refers to akar or immoveable property, and from the fact that Arazi-mirie acquired under like circumstances is dealt with by Art. 35 of the Land Code, that the word "Arazi" of land includes Mulk land. The article would therefore apply to the property in question in the action, which is described as Sirf Mulk in the kochan; and it is clear, we think, that an acquisition by the Defendant without the assent of the co-owners other than Naim would as regards them be a wrongful appropriation. This being so the next question which arises is ,assuming the funding of the District Court to be correct that the united valued of the expenses of building and planting exceed the value of the property and that they were correct in considering repairs to be included in the word building, what construction are we to place on the meaning of the words "acting in good faith" used in the article? So far as we can gather from a careful perusal of that article the intention of it is to give protection to a person who, although a wrongful appropriator strictly speaking, really believed that his appropriation was a legal and propel one. If however it was evident that an appropriator had no reasonable grounds for such a belief, this would, of course, tell strongly against, and might indeed negative his contention of honest belief and bona fides If this were not so the door would be opened to every fraudulent or violent usurper of property to obtain possession of any land he coveted by building or planting on it to an extent exceeding its value and then simply asserting a belief that he Was the owner. This proceeding is contemplated and alluded to in the note to the latter part of Art. 906 in the Greek text of Mr. Dem. Nicolaides. In the case before us the, Defendant knew he had no kochall and could only have supposed that he might be able some day, if per chance his occupation were not interrupted, to obtain one by prescription. By Art. 1 of the Law of 28 Rejeh, 1291
(1874), it was laid down that "from henceforward the possession of Emlak without title-deed if; prohibited;" and at least since 1883 when the new Courts in Cyprus were instituted the observation of this regulation has been enforced and insisted on by many decisions of this Court and the District Courts. If therefore a person in 1888, and a fortiori in 1892, bought a property without obtaining registration how could he reasonably have supposed that he was justified in law in considering the security of his position was so far ensured as to warrant him in treating the property as his own by building and planting on it? In our judgment a man who took possession of immoveable property in Cyprus even in 1888 merely under a private sale would not have reasonable grounds for believing that, and acting as if, the property was his own. He would know perfectly well that his appropriation was not a legal or a proper one; and that no sale without registration would be recognised by the Courts; awl if he built or planted on the land he must know that he did so at his peril. In order therefore to bring a wrongful appropriator within the protection afforded by Art. 906, he must, in our opinion, have possessed some form of title either by Hojet or registration for the property he has improved. This view is also strengthened by the terms of Art. 35 of the Land Code, which become law previously to the promulgation of the Mejelle In our opinion then the judgment of the District Court was wrong on the ground which we have discussed and also on the further ground that it did not provide for the payment to the co-heirs not joining in the so called sale, of their share of the value of the property, assuming the judgment to have been correct as regards the point of bona fides. We have assumed all through that the District Court was right inconsidering the cost of repairs as being the same as cost of building,and it may be that the combined expense of planting and building,deducting what might properly he called repairs, would exceed togetherthe value of the property appropriated, i.e., £14. But whether this beso or not, is immaterial, as the protection the Defendant seeks is deniedhim by negativing the existence of a bona fide belief of ownership on his part. In our opinion the judgment of the District. Court should be set aside: and upon payment, into Court by the Plaintiffs of the purchase money £14, together with It fair and reasonable sum on account of the expenses incurred by the Defendant, in accordance with the Plaintiff Naim's offer, judgment should be entered for the Plaintiffs for the return of the property in question. If the parties cannot agree as to the amount to he paid on account of the Defendant's expenses we are prepared to fix what we think a. fair sum on the evidence as it stands. The Defendant must pay the Plaintiffs' costs in both Courts cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο