clr/1984/1984_1_225.pdf

(1984)5 The respondent further alleged that the disputed piece of land belonged to him by virtue of undisputed and uninterrupted W possession for the full prescriptive period, and he adduced a counterclaim for a declaration, inter alia, of the Court that thedisputed area belonged tohimbylong lawful possessionand/ or adverse possession and that he was entitled to registration by the D.L.O. 15 On the 15th November 1924, following a local inquiry both plots were transferred inthe name of Ioulios D. Loizides. Plot 112 was transferred on the 25th November, 1933 as a result of a forced sale and public auction in thename of Melissa Bank and on the 20th January, 1934 it was transferred in the name 20 of the appellant. Plot 392 was transferred in 1936, as a result of a forced sale and public auction in thename of Evlambia Omirou Demetriadeswho transferred it inthename of Andriani Iouliou Loizides in

1. The latter sold it to the wife of the respondent in 25 August 1946; and in May 1954 ihe wife transferred it, by way of gift, to her husband-the respondent. With regard to the possession of the disputed land the trial Court found that "this hasbeen proved to have begun on 25.
2. 1933when plot 112wasregistered in the name of Melissa Bank 30 whilst its previous owner Ioulios D. Loizides retained the registration of plot 392and continued possessingthe last mentioned plot includingthe disputed area; and that this beingso, byvirtue of the first proviso to section 10 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, the law 35' to be applied for prescriptive right by possession isthe Ottoman Law as the period of possession began before the date of the coming into operation of the said Law (Cap. 224) i.e. before 1.9.1946". The trial Court further found that witheach transfer 226 1 C.L.R. 5 10 15 20 25 EHiruis v. HjiSolomou and registration of plot 392 the disputed area was transferred and registered also independently of its possession; that the boundaries mentioned in each regtstiation of plot 392 covered the disputed area and, therefore, the disputed area was also transferred and registered; and that, inviewofthefact that each such registration, save that in the name of the respondent, was madebefore 1.9.1946whenCap.224cameintooperation, section 50 of that Law, which provides that "the area of land covered bya registration oftitleto immovablepropertyshall bethearea of the plot to which the registration can be related ". had no application in the present aclion and Article 47 of the Ottoman Land Codeapplied bywhichtheboundaries menlioned fixthe area of land ofeach registration irrespectively ofwhether the extent was fixed or not. Inview ofthe above,the trial Court found that the period of prescriptive right by possession of ten years from 25.11.1933 in favour of respondent of the disputed area has been proved to be completed and also that in view of Article 47 of the Ottoman Land Code even the ownership itself of the disputed area has been transfeired to the successive registered owners up to and including the registration of plot 392 in the name of Defendant's wife, which took place on 9.8.1946, i.e. before 1.9.1946 the date of the coming into operation of Cap. 224, when (respondent's wife) transferred to respondent a complete and perfect title of plot 392together with the disputed area. Upon appeal byplaintiff' owner ofplot 112: 30 35 40 Held,per Malachtos J., L. Loizou J. concurring and Hadjianaslassiou J. dissenting, that formal transfer of immovable property in cases where the certificate of registration is based on the survey plan means the transfer through the D.L.O. of the plot to which the registration relates and nothing more, nothing less; that land which ispossessed bythetransferor over and above the plot to which hiscertificate of registration relates does not pass to the transferee of that registration; that it is immaterial whether such transfer was made before the 1st September, 1946,thedateofcominginto force ofthe Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, or after such date; and that the position,is different when the registration of the transferor is not based on the survey plan; that, therefore, assuming that possession of the disputed 227 Ellinas v. HjiSolomou (IMW) portion of land by thepredecessors intitle of thewife of the res­ pondent, could be added up, so that she could complete the ten years required period under the old Law, as found by the trial Judge, since the transfer of the property in thenameof the respondent took place after the coming into force of the new 5 Law, her possession could not be added up to that of the res­ pondent,as thecertificate of registration was based onthesurvey plan and did not include the disputed portion; accordingly the appeal must be allowed. Appealallowed. 10 Cases referred to: Papageorghiou v. Komodromou

(1963)2 C.L.R 221; HjiKyriacou and Another ν Manuel, 10 C.L.R. 15; HadjiSawa v. Maroubu, 7 C.L.R. 89; Ibrahim v. Souleiman, 19 C.L.R. 237 at p. 238; Spanou v. Savra

(1965)1 C.L.R. 36; Millington-Ward v. Roubina

(1970)I C.L.R. 88; Terzian v. Michaelides, 18 C.L.R.

1. 15 Appeal. Appeal by plaintiff against thejudgment of the District Couit 20 of Paphos (Pitsillides, D.J.) dated the 9th September, 1971 (Action No. 1076/68) whereby his claim for a declaration that th.2defendant has no right over plaintiffs field under registration No. 6153 was dismissed. L. Papaphilippou, for the appellant. A. Triantafyllides, for the respondent. 25 Cur. adv. vult. The following judgments were read. HADJIANASTASSIOU J.: The main question in this appeal is whether the land described in the statement of claim is the pro- 30 pcrty of the respondent, loannis HjisoIomou, having established a prescriptive right for a period of over 10 years. The facts of the case are these: On September 30, 1968, the plaintiff, Gcorghios Nicolaou Ellinas, filed action 1076/68claiming that the defendant, loannts 35 HjisoIomou, has no right at all on the land in question covered by plot 112 and was seeking an order of the Court to prevent the
2. I C.L.R. Ellinas v. HjiSolomou Hadjiaoastassiou J. latter from interfering with thesaid plot of land. Furthermore, hewas claiming, inthealternative,an order to annul oramend the registration and/orto pievent himfiom interfering with the rights of the plaintiff. 5 On June 5, 1969, the defendant repudiated the averments of theplaintiff andalleged thatthepieceof land of about3 donums was never inthepossession of theplaintiff andthat, by mistake, itwas includedinhistitle. Inanyevent,thedefendantpointed out that the plaintiff has lost any rights on that piece of land 10 because he never had any possession of it; and that for the first time he claimed the ownership of that land after a local enquirywas carriedoutinapplication No. 863/67,by theLands Registry Office in Paphos. Furthermore,itwas thecasefor thedefendantthatthe plainliff 15 is estopped from raising suchaclaim,i.e. thathehas trespassed on that piece of land,and alleged thatthe said land belongs to himbecause heremained in lawful possession and withoutpro­ test by anybody for a continuous adverse period of 30 years; and/or inaccordancewith lawful, continuousuninterrupted and 20 undisputedpossession by himof aperiodof over 10years; and that in accordance with the law, he was entitled to seek regi­ stration in his name. On October 3, 1970, theDistrictLands Officer, Mr.Neophytos Michael,toldtheCourtthatonJanuary 28, 1970,hecarried 25 out a local enquiry on thebasis of the pleadings of thisaction by order of the Court. Present were the parties; thewife of defendant, Maria Evangclou, the rural constable of Emba, Georghios Demetriou, and themuhktar of Emba. Theparties hadagreed thatthedisputedarea oftheland,exhibit Γ was that 30 colouredred,of anextent of 3donums, 1 evlek. and 1,800 sq.ft. Turning to thepurchase of the land in question,he said that the plaintiff purchased plot 112 (coloured blue and red on the sketch prepared) from Melissa Bank, which was the registered owner under Registration No.6104 dated November 25,
3. 35 Itwas transferred tothesaid bankby acertainIouliosD.Loizi­ des, who was the registered owner under Registration No.4945 dated November 15,
4. That piece of land was transferred 229 HadjianaslasMou J. Ellinas >. HjiSolomou (19W) earlier to Ioulios Loizides by a certain Demetrios Christodoulou Loizides by inheritance and division. The said Demetrios Loizides was tho registered owner under Registration No.1228 dated November
5. That registration described the extent as 4 donums. The Registration No.4945in thenameof Ioulios 5 Loizides was preceded by a local enquiry because of an appli­ cation No. 1610/
6. After that local enquiry, the registration No. 4945 was issued and described the property as plot 112, a field of theextent of 22 donums and 3cvleks. That description was the first one made, and all the subsequent registrations 10 followed that description. It appears further that plot 392 was transferred to defendant by Maria Evangeli Charalambous, the wife of the defendant. who was the registered owner under registration No.6373 dated August 9, 1946, by a declaration of gift. It was transferred to \> her by Andrianou louliou Loizides, who was the registered owner under the same registration No. 6373 dated August
8. This piece of land was transferred to the said Andrianou louliou Loizidou by Evlambia Omirou Dcrrotriadou who was the registered owner under the same registration No.6373 dated 20 May 21,
9. This very same piece of land was transferred earlier to the said Evlambia Omirou Dcmetriades by Ioulios D. Loizides who was the registered owner under Registration 4952dated November 15,
10. The last mentioned registration was made by application No. 1610/
11. The said registration 25 No.4952described theproperty as plot 392, Frakti,of theextent of 5 donums and 2 evleks of arazi miric catcgoiy. This des­ cription was the first made and all subsequent registrations followed that description. Mr. Ioulios Loizides acquired plot 392 by inheritance and 30 division from his father, Demetrios Christodoulos Loizides, who was the registered owner under Registration No. 1235 and described the property as a field of 2 donums, arazi miric cate­ gory, Maria Evangcli purchased plot 392, Registration No. 6373 of an extent of 5 donums and 2 evleks from Andrianou 35 Loizidou. The D.L.O.clerk further added that plot 111 is Hali Land with big rocks. But the remaining of the red area was cultivated. The red line between the red and blue areas was 323 ft. long and comer A to corner Β was 238 feet. Regarding the disputed area, the witness added that there is a 230 40 I C.L.R. Kllinas v. HjiSolomou Hadjianastassiou ,|. decision of the Director, dated July 1, 1968(secexhibit 2). Th-· disputed area, in fact, appears in the plan attached to the said decision in red colour. This witness was cioss-cxamined at length and he conceded 5 that if the led area formed part of plot 112, Ioulios Loizides would be boundary on threesidesofplot 392,but headded that he did not know if the clerk who fixed the boundaries in Registiation No. 7724 meant the red line or not. He further went on to add that he would record in any case, only once, Ioulios 10 D. Loizides, because this is their practice today. He admitted. however, that up to a few years ago, one boundary was mentioned as many times as the sides it occupied. ft iscorrect, he added, that since 1928,for the fixing of a plot and its extent, they used the boundaries, but it isnot correct, he 15 added, that the plot number is decisive for the fixing of a plot since
12. Plaintiff's plot isscale 1:5000at the locality "Elies" and is described as a field. Defendant's plot is on scale 1:1250 in the village and is described as "fracti". Finally, he added that the decision of the Diicctor was based 20 oa the existence of ths sxirvey plan of the boundary line which sepatates the yellow area from the red area. He also conceded that th/"-rchave been mistakes made by the D.L.O. in the survey plans and in the registrations. In re-examination, he said that he did not know if the defen25 dant was ever the owner of plot 393, bvt admitted that plots 392and 393weie assessed in thename ofdefendant atthe general survey. He also conceded that there have been mistakes as to theexistence of treesina plot and many mistakes of theextent of property before the general survey. 30 The case was adjourned to May 10, 1971 foi further hearing, but on that dateno further evidencewas called in support of th; caseof theplaintiff. The defendant called Mr. D. Loizides who told the Court that his father had a lot of property at Emba including the field at locality "Elics", and a fiacti by the narm 35 "'Ktiston", which was adjacent to that field. The fracti was sold by public auction and was purchased by Melissa Bank and latsr on by the plaintiff. The field at Elics was distinctly separate from the said fracti 231 Hadjianastassiou J . Ellinas \. HjiSolomou

(1984)which was 2 - 6 feet higher than the field in question. They wereseparated by a dry wall and by a pathway leading from the main Paphos-Emba load through the boundaries of the said field and fracti and was proceeding towards the south. He knew that pathway, the witness added, and that he had seen it 5 on that date (10.5.71) and it had the same route, being about 6 -8feet wide. There wasa diy wall between the pathway, and thefracti and the latter had adry wall allaround it, and that was. the reason why it was called "Ktiston". The fracti was purchased at a public auction along with the 10 otherplotson itseast sidebyEvlambia Demetriadou. TheVvitn;ss further explained that his mother later on purchased ths said fracti with the other plots but she transferred them in the name of his sister Andriani- He also added that Evlambia did not purchase the field "Elies". 15 In 1942,a permit was issued to sink a well in the name of his sister and a well was sunk during that period in the fracti which still exists. They used to sow the remaining part of the fracti with cereals up to the side which was near the fisld "Elies". Finally, the witness addsd that on the side of the fracti which is 20 near the field Elics,there were, and still aic two carob trees and a teiebinth tree. There were oth^r trees there and he remembeled that they used to gather the carobs. In cross-examination, he said that the dry wall existed ever sincehe remembered, but he did not know which was the dispu- 25 ted land which the parties claimed. In re-examination, he said that the plaintiff never interfered with the fracti or with the well and that he never had any claim on them. There was further supporting evidence by Papagregorios 30 Nicolaou (apriest of Emba),74years ofage, who told the Court that he knew the parties, the field and the fracti in questions. Thefield, he said, was on the level of thepathway and the fracti wason a higher level. Theyboth belonged to Loizideswho had thefracti even after the plaintiff acquired ownership of thefield. 35 Thehigher level of thefracti isbetween 2and 5feet higher. The pathway there existed for the last 60 - 65 years, and a lot of people used it. He wasusingthat pathway sincehe was a small boy. 232 I C.L.R. Kllinas v. HjiSolomou Hadjianastassiou J. In 1944,the plaintiff brought an action against PapaGregorios for that pathway, but finally they arrived at a settlement. They placed poles to separate the pathway which was 4 ft. wide from thefield oftheplaintiff, on thewestern sideof thepathway. He 5 also added that they did not agree to place thepoles on the side of the fracti. On the fracti a well was sunk, whilst it was the property of Mr. Ioulios Loizides, and it was used for watering animals; the water was raised to the surface with a hand mill. Thewell was visible from a longdistance. Finally, he said that )0 the defendant has been gathering the carobs. In cross-examination, he said that the oktus separating the field from the fracti was made of stones. He remembered the public auction in which the plaintiff purchased the field, but he did not remember if Evlambia owned the fracti. He also remem15 bered that it belonged to Ioulios Loizides and it was sold by public auction in a compulsory sale and someone purchased it along with other property. In ic-cxamination, he said that the plaintiff never possessed the disputed area, and that plaintiff admitted in public and in 20 his presence, that he never possessed the disputed area, but claimed it because the plan shows that it was his. He agreed that the defendant cultivated the disputed area with tractors. The wife of the defendant, Maria Evangeli, in supporting further the caseof her husband, said that shepurchased the said 25 fiacti from Andnana Loizidesby a declaration of saleon August 9,1946, and this plot was known as fracti or Ktiston. The fbld of the plaintiff is separated from the fracti by a pathway which passes on the side of the plaintiff's field. Over that pathway there is an oktus. The plaintiff used to sow and plant his field, 30 but henever tried to use thefracti or toclaim ownership over it. Mr. Loizidesused thewater of the wellfor watering animals and for irrigating some vegetables in the fracti. fn explaining the reason whythecertificates of registrationwerenot produced, she said that the D.L.O. lost her certificates of registration which 35 she gave with the declaration of gift to her husband. In cross-examination, she said that the certificate of registration wasread over to her before shepurchsed the fracti from Andriana Loizidou. She was positive that the contents of the 233 Hadjianastassiou .1. Ellinas t. HjiSolomou

(1984)registration were read to her and that thearea was 5donums and 2 cvleks. In re-examination, she said that the boundaries of the field were shown to her and that the aigaki ran from east to west, and 5 had been filled by them with a bulldozer. The defendant told the Court that the fracti which was pur­ chased by his wife was higher than the field of the plaintiff and that the plaintiff never interfered with any part of their property. In cross-examination he said that they rais:d water every day fiom the well and they used it for giving water to their animals and for irrigation purposes. They lowered the depth of the well about 15 years ago. The learned trial Judge, having reviewed the evidence before him, accepted the evidence for the defence, and said:- It) 15 ' Ί η view of th? location of the pathway which has been proved by the D.L.O. clsrk and by defendant and all his witnesses to be within the blue area of exhibit I, alongside the oktus separating the blue area from the yellow and red (disputed areas), no doubt can arise that by the inclusion in 20 the above condition of the words 'At the eastern end of his (plaintiff'

1. s)field along the boundary of the adjoining field of Ioulios Loizides, the plaintiff admitted that the property beyond the eastern side of that pathway (including the disputed red area in exhibit I) did not belong to him but 25 that it belonged to Ioulios Loizides, that pathway being the eastern landmark of his property'". Then the learned Judge - having no doubl, went on to add that (a)when theplaintiff purchased plot 112,he and the vendor knew that he purchased only the blue aiea and that the red dis- 30 puted area was not included; that neither tho plaintiff nor his prcdeccssor-in-title of plot 112 (Melissa Bank) ever possessed the disputed area or even showed any act of ownership thereon, and that he first started asserting his claim upon it by his appli­ cation No. AI862/1967 to the D.L.O. of Paphos, under s.58 of 35 Cap. 224; after he discovered that according to the survey plan the red area was included in plot 112; (b)when the defendant's wife purchased plot 392, she and the vendor knew that the dis­ puted area was included in the property purchased, and that the 234 1 C.L.R. Ellinas v. HjiSolomou Hadjianastassiou J. disputed area was always in the exclusive possession of the defendant. ofhiswife and of their prcdeccssors-in-title to plot 392; (
2. c)the survey plan was wrongly drafted to include the disputed area in plot 112 whereas it always formed part of plot 392 and 5 that this error resulted from the drawing of the separation line between Emba village and locality Elies; and (
3. d)that the decision of the Director was based on the existence of the survey plan of the said separation line which was wrongly drafted. Then the learned Judge, having dealt with the legal points 10 regarding possession reached this conclusion: 15 20 "I find that the period of prescriptive right of possession of 10years from 25.11.33 in favour of defendant of the disputed area has been proved to be completed and also that in view of Article 47 of the Ottoman Land Code, even the ownership of the disputed area has been transferred to the successive registered owners up to and including the registration of plot 392in thenameof defendant's wife which took place on 9th August 1946 i.e. before 1st September 1946 the date of the coming into operation of Cap. 224, who, (defendant's wife) transferred to defendant the complete and perfect title of plot 392 together with the disputed area." With that in mind, the learned trial Judge dismissed the action of the plaintiff and gavejudgment in favour of the defendant on 25 his counterclaim as per paragraphs (a), (
4. b)and (c)with costs in favour of the defendant. On appeal, counsel made four propositions in support of his contention that the learned trial Judge was wrong in law in reaching the said decision. 30 On the contrary, counsel for the respondents, in a strong and full aigumcnt, contended that the decision of the trial Court was rightly taken, both factually and legally. I have alieady stated that the learned trial Judge had before himevidenceas tothephysical stateofthe land andalso evidence 35 as to possession and documentary evidence. On the contrary, there was a complete lack of evidence on behalf of the appellant. There isno doubt that thephysical stateofthe land isan important one,ifone considers whether therewas a mistake in law, and 235 Hadjianastassiou J. Ellinas v. HjiSolomou

(1984)thisfindssupport inIbrahimv.Souleyman, 19C.L.R. 237. Halinan, C.J., speaking about the question whether there was a mistake, said at p. 238:•'lf there has been such a mistake then we consider that it must be presumed that Djaffer Haul, the transferor to the 5 respondent, was, before the mistake was made, the registeicd owner of the land claimed by the respondent, and that Djaffer Haiti in 1946 legally transferred all his right; in the land of which he was owner to the respondent. Defendant-appellant acquired her interest in plot 29/1 by gift; 10 sheisnot abonafidepurchaser for value. Ifthe appellant's predecessor in titlebyerror obtained registration for part of Djaffer HahTs title, the register must be rectified. (Mihtat v. Loiza, 6 C.L.R., 13). Jn our view, the true issuein this caseiswhether delinea- 15 tion of plot 30 on the survey plan is correct or not, having regard to the description of the boundaries in the certificates of title No. 12,342, the evidence of trees in the certificates oftitle of both appellant and respondent, the changes in the areas of plots 29and 30over the material period, and 20 lastlytheevidence of actual possession of the land in dispute by either party or thiir piedecessors in title. If the respondent succeeds in this issue then it is not necessary to consider whether he has obtained a prescriptive right to the land in dispute. Under the law relating to 25 lands prior to 1946 it isvery doubtful if a person who has obtained by prescription alone a right to be registered, can transfer his right verbally to another unless he perfects his title by registration so as to give the transferee a right of action." I would reiterate that although there was ample evidence on behalf of the defendant and hispredecessors-in-title, the plaintiff never gave evidence, and no evidence was adduced regarding his possession. This is indeed one of the few cases, as far as 1 can remember, where counsel for tire plaintiff did not even 35 challenge the ciedibility of the witnesses. Turning now to the law which governs this case, I think one can derive some assistance or guidance from the case of Spanou v. Savva,

(1965)1 C.L.R. 36, with regard to transfers 236 30 1 C.L.R. Ellinas v. HjiSolomou Hadjianastassiou J. which were completed on September 1,

1. This was an appeal against the judgment of the District Court of Nicosia, whereby it was declared, inter alia, that a strip of land adjoining defendant's ptoperty belonged to plaintiff byprescription. This 5 appeal was concerned with transfers effected prioi to the enactment of Cap. 224, which th; trial Court determined upon the law in force at the time of the transfer, i.e. the law as it stood before Cap. 224 came into force in September,
2. Vassiliades, J., as he then was, in a short judgment, in dismissing 10 the appeal, said at pp. 37-38:"The appeal was based mainly on the authority of a land case decided in May, 1963, Rodothea PapaGeorghiou v. Antonis Savva Komodromou,

(1963)2 C.L.R.

1. specifically referred to in the grounds of appeal. 15 20 25 30 As pointed out in the course of the argument this morning, the subject-matter in that case were transfers of registration effected after the enactment ofthe Immovable Property (Tenure, Registration and Valuation) Law, 1946, now Cap. 224; and the case was decided on certain provisions of that statute. Here we are concerned with transfers effected prior to the enactment of Cap. 224, which the trial Court determined upon the law in fotce at the time of the transfei, i.e. the law as it stood before Cap. 224 came into force in September,
2. We are unanimously of opinion that the learned trial Judge was right in deciding this case on what he described inhisjudgmentasthc 'old law' which,wethink,hecorrectly applied. Having reached this conclusion, we can dispose of this appeal without discussing theeffect of the judgments in Georghiou v. Komodromou (supra) which, as already stated, turned mainly on the provisions of the present law. the Immovable Property (Tenure, Registration and Valuation) Law, 1946". Having quoted this case, and in view of the various 35 registrations, it appears that the law governing the present case is Article 46 of the Ottoman Land Code which provides that a man buys what he sees physically, and this was exactly what had happened in this case when the wife of the defendant purchased the field which was pointed out to her and its 40 boundaries. 237 Hadjianastassiou J. Ellinas v. HjiSolomou

(1984)After 1946, the position has changed, and one can contrast section 50 of Cap.

1. with regard to the mode of determining the area of registered land. This section says that: "The area of land covered by a registration of title to immovable property shall be the area of the plot to 5 which the registration can be related or any Government survey plan or any otherplan madeto scale by theDirector: Provided that where the legistration cannot be related to any such plan, such area shall be the area of the land to which the holder of the titls may be entitled by adverse 10 possession, purchase or inheritance". With this in mind, it appcan that when the defendant's wife bought the land in question in August, 1946, the period of 10 years' prescription had already been completed. It is equally true to say that the property transferred by hc-r into the name 15 of her husband in 1954, included all the land or area of the land which was possessed by her since
2. It is equally true to say that Cap. 224 which came into foice on September I, 1946, has no retrospective effect, and conse­ quently, the provision? of the law in force immediately prior 20 to the enactment of Cap. 224, govern the rights of the parties in the present case. (Sec Millington-Ward v. Roubina,

(1970)1 C.L.R. 88). This principle finds further suppoit in Terzian v. Michaelides, 18 C.L.R.

1. The respondent's father became owner in 1925 25 by purchase of a house and a yaid adjoining his wife's hous^, and in the same year, he gaveas agift tohis wife, thethen owner of the respondent's house, a small space from his plot, 6 ft. χ 6 ft. on which a W.C. was constructed foi the wife's house. On the 31st July, 1939, the wife transferred her house to their 30 daughter, the respondent, and by the dcclaiation of sale, admit­ tedly in the handwriting of the father who was a Land Registry Official, the mother asked for the tranfer to the respondent of this W.C. along with othsr additions to the house. In effect, the title deed issued to respondent in pursuance of this 35 declaration, and after a local enquiry, specifically mentioned the W.C. in question. It was necessary to exclude this space from the father's registration, for which the father's consent would be required, but inadvertently this was not done. On 238 1 C.L.R. Ellinas \. HjiSolomou Hadjianastassiou J. the evidence, it was clear that the father acquiesced in the inclusion of the space in the respondent's title deed. In
2. the father transferred his own house..as it was originally registered in his name, to another daughter, who sold and trans5 ferred it in thefollowing year to theappellant, who, in February. 1945,contended that he was the owner of the space in question. The lespondent then brought an action claiming ownership by registration or prescriptive adverse possessior, and the Court had to determine which of the two registrations should prevail 10 in respect of the space in dispute. The Court of Appeal held (I) that the appellant's prcdeccs'Orin-title, namely respondert's father, remained inadvertently formally registered for the space in dispute, and appellant, who inspected the premises before his purchase cannot be considered 15 a bona lidc purchaser without notice. The transfer to respondent waseffective to include this space, but even if doubts were to persist as to this result, the respondent's title was perfected by the lapse of the prescriptive period of 15years. Griffith Williams. J., in dismissing the appeal, affirmed the 20 judgment of the District Court, and said at p.128:- 35 "On this head of claim the evidence, in our opinion, is conclusive in favour of respondent both as to exclusive possession and as to adverse possession. We do not overlook the fact that the husband, the donor, was residing with his wife in her house until his transfer to Kyrenia in
3. This circumstance does not change the adverse character of the wife's possession during her ownership of the house. The wife as owner was in possession of the whole house including this W.C. space which was, as we said, permanently attached to her house as best they could make it, and the owner's intention on her part could not but extend over this space. The husband's intent on the other hand to part with the ownership of this space in favour of the wife isclear from the fact of his having made a gift of it to his wife. 40 This exclusive and adveise possession of the wife was continued down to and beyond the completion of the prestriptive period by her daughter, the respondent. So that the respondent's claim based on piescriptive possesion is unanswerable. 25 30 239 ludjtanustassiou J. LUUiias \. HjiSolomou

(1984)The result is that in our opinion the appellant's predecessor in title, namely respondent's father, remained inadvertently'formally jegistcied for thi» space, and appellant cannot be considered a bona fide purchaser without notice. The transfer to respondent in the circumstances enumerated was effective to include this space, but even if doubts were to persist as to this result, the responent's title was perfected by the lapse of the appropriate prescriptive period of 15 years". 5 Finally, in Rodothea PapaGeorghiou v. Antonis Savva Chara- 10 himbous Komodromou*

(1963)2C.L.R., 221 thefacts were these:"The appellant (defendant) is the owner of a plot of land No. 631 under title deed under registration No. 6555 dated the 28th March. 1955. The respondent (plaintiff) is the owner of the adjoining plot No. 632 under 15 Registration No. 6231 dated the 21st September, 1949. A dispute has arisen between the parties as to Hie ownership of a strip of land 2,500 sq. ft. inextent whichwas found to be included in the plot No. 632 registered as aforesaid in the lespondent's name. The previous regulations of 20 the lattcr's title deed No. 6231 were Nos. 2343 and 2344 in the name of the father of the respondent. After a local inquiry held some time in 1949, the said two registrations were identified to the survey plan and the new title deed No. 6231 was issued to the father who shortly afterwards 25 transferred the land to his son, the respondent. The registrations of the appellant's title deed No. 6555 were Nos. 2308 and 2309 in the name of her mother for which after local inquiry the new title deed No. 6555 was issued to the mother, who transfen-ed the land to her 30 daughter the appellant, some time in 1955. The disputed portion of land was being cultivated by the mother at least as fur back as from 1915 till 1938 or 1939 when she informally gave the whole field (including the disputed area) to her daughter (appellant)as dowry who as from that 35 date was cultivating the whole field until the present day. The respondent instituted his action against the appellant claimingonfoot of hisaforesaid titledeed under registration No. 6231 an injunction restraining the appellant from interfering with the portion of land in dispute. The appel- 40 240 I C.L.R. 5 10. 15 20 25 Ellinas v. HjiSolomou Hadjianastassiou.1. lant (defendant) disputed the claim and .counter-claimed for an ordei of the Court directing the legistratton in her name of the land in dispute on account of: (

1. a)undisputed adverse possession for fifty year» and (
2. b)mistake whereby the said portion of land ha^ been included in the title deed of the plaintiff (respondent) _ The trial Court found that the disputed area is included in the plaintiff's (respondent'
3. s)title deed under reg. No.6231, dated the-21st September, 1949. To the question whether theperiod of possession bythe mother of the appellant could be added to that of the daughter-appellant, the trial Court answered in the negative inasmuch as the disputed portion possessed by the mother from 1915 to 1938 or 1939 could not be transferred informally to the daughter and, therefore, the latter, having not completed from 1938 or 1939 to the 1st September, 1946 (on which date Cap. 224 (supra) came into force) a full period often years' possession of her own, was only entitled to the land actually transferred to her by her mother in 1955 under registration No. 6555 (supra) which title deed admittedly does not include the disputed area of land. Consequently. the, trial Court granted to the appellant (plaintiff) the injunction claimed for. On appeal by the defendant, the High Court (Vassiliades, J. dissenting), upholding the judgment of the trial Court Held, (Vassiliades, J. dissenting), (I) in our view two are the points of law which fall for decision: 30 35

(1)Whether theappellant's mother'speriod of possession or part thereof over the disputed portion of land might be added to the period actually possessed by the appellant so that, prior to the 1st September, 1946, the date of the coming into force of the immovable Property (Tenure. Registration and Valuation) Law, 1946,shewould complete the required 10 years' period to enable her to obtain prescriptive right over the disputed land.

(2)Whether the plaintiff-respondent was entitled to the injunction restraining the defendant ftom interfering with 241 H;i<l(iitn:istaviiou J. HMirm \. HjiSolomou

(1984)the disputed land notwithstanding that the former was never in possession of the said land and ttv inclusion of the disputed portion of land in his title deed might as well be due to a mistake". Zckia. J., in delivering the judgment of the majority, said at p. 233:- 5 *'As to the first point, possessory rights, prior to the enactment of the Immovable Property (Tenure. Registration and Valuation) Law. Cap. 224, ueic governed by Article 20 (in the case of lands of Arazi Miric category) of the 10 Ottoman Land Code and by the Immovable Property Limitation Law. 1886 (Law 4 of 1886)". Then, having quoted Article 20, and sections 2 and 3 of Law 4 of 1886, and having observed that the main object of Law 4of 1886was inhisview,to amend the second part of Article 20 15 of the Ottoman Land Code so that a person who adversely possess^ a pailicular piece of land would not be debarred of the right of acquiring ownership of the land even if he acknowledges that he arbitrarily possessed such land, he said that "it is clear from the old and new law relating to the trans- 20 fcr of immovable property that registration in one way or the other was necessary for the validity of the transfer". "In this case the mother, the predecessor-in-title of the appellant was not, as far as the evidence goes, the registered owner in respect of the disputed portion of land and when she 25 made a gift of the land possessed by her including the disputed portion as dowry to her daughter, the appellant, in 1938 or 1939,that gift not havingbeen made inaccordance with the Law, could not be considered to be a transfer in the legal sense of the word. Cn the other hand, when she transferred the land 30 registered in her name, which registration did not include the disputed portion, in 1955 that transfer couid not comprise the disputed portion on account of section 50 of the Immovable Property (Tenure. Registration and Valuation) Law, which reads as follows:_._ „ 35 "The periods of possession of an aTea of land by successor and predecessor-in-title could be added up in cases of devolution by inheritance and in transfers where the title 242 1 C.L.R. 5 10 15 20 25 30 35 Ellinas \. HjiSolomou Hadjianastassiou J. deed is not related to a survey plan, excluding the area in question, and in such a case th: proviso to section 50 will operate and the period of adverse possession by transferor and transferee will then be added up. Prior to 1946, when Articb 47 of the Ottoman Land Code was in force in a transfer where theboundaries were indicated the extent of the area mentioned was not material but what mattered was the area included within the boundaries named: Article 47 reads: Before the General Survey and the system of registiaion with reference to a survey plan was introduced in this country, transfers by kotchans or tapou seneds were in vogue. These kotchans and seneds as a rule did not relate to any survey plan and therefore where a dispute between two neighbouring land-owners in respect of a portion of land falling between their properties arose the only way of deciding the dispute was to find out which of the neighbouring land-owners had undisputed possession over the disputed portion and in such cases possession by transferor and bytransferee of thedisputed portion could be computed together. The first proviso to section 10of the Immovable Property (Tenure, Registration and Valuation) Law has been interpreted by this Court in a number of cases and needsno further consideration. The period of prescription. if not completed by 1st Septembei, 1946, cannot be completed thereafter against a registered owner and in this case the possession started by the appellant in 1938 or 1939 being incomplete by 1st September 1946 it cannot be completed after that date against a registered owner. the father of the respondent and later the respondent in this case, by continuing to possess the land in dispute. I am of the opinion, therefore, that whatever possessor)' rights were vested in the mother of the appellant in respect of disputed land those rights did not pass to the daughter either by virtue of the agreement of dowry in 1938 or 1939 or on the strength of the transfer in 1955 which transfer did not include the disputed land". Turning now to the second point, viz. whether the plaintiff respondent was entitled to the injimction sought, Zekia. J. 40 in dismissing the appeal, had this to say at pp. 238-239:243 Hudjiumistassiou J. Kilinas \. HjiSolomou

(1983)". .1 think the case of I/jiGeorghiHjiKyriacott and another ' v. Kypriano •Manuel

(1910), 10C.L.R. p. 15,is to thepoint. Thoic the defendant by a cross-action claimed a right to registration on the ground of piescription but failed to prove his claim. On the other hand, it had been proved 5 that the plaintiff's title deed was obtained by a false certi­ ficate and on this fact the district Court dismissed the plaintiff's claim. The Supreme Court, however, allowed the appeal with costs. Tyser. G.J.'.at p. 16 states: 10 "The Courts ate not Courts of Appeal from the Land Registry. Office. All that the Court does is this, that where by. subsistence of·any registration injury is done to some one\vru>is entitled to"the land, and where the person agrieved conies into"Court' to"assert his rights as against 15 the person registered, the Court hears his claim and makes a declaration of his rights, and the Land Registry Office acts upon the Court's declaration. The Court has no right to take the quochan into its own hands: and without the quochan's being challenged by any person entitled to the property, to decline to enforce it 20 Perhaps a brief reference might also be made to the case of Tsikinou HadjiSavva against Kynakou Georghiou Maroulou

(1907)7 C.L.R., p. 89, where it was held that in a dispute as to the boundaries between two adjoining 25 properties, both claiming under Kotchans, each of which is consistent with the claim of the person holding under it, and where erne of the parties is in possession of the land in dispute, the onus lies upon the party seeking to disturb that possession to establish his claim to the satisfaction 30 of the Court. Obviously this case is distinguishable from the present one because the title deeds of both parties are not equally consistent with claim and counter-claim. Had the transfer in the names of the litigants been made without ιefercnce to plots in a survey plan no doubt this case would 35 have a strong bearing in the present appeal. On the former authority quoted I am of the opinion that even if the registration in the name of the respondent in 244 I C.L.R. Ellinas \. HjiSolomou Hadjianastassiou J. this case included the disputed portion by mistake he was entitled to have judgment in hi? .favour". I have very carefully consideied the material and substantial facts of this case,and in myview, the present case is distiuguish5 able from the facts of that of Rodothea's case. In any event, the ratio decidendi lays down that the transfers should bemadeformally, and not infoimallyaswastheeaseinRodothea v. Komodromou(supra). On the contiary, in the present cas^·. the Court came to the conclusion that the said transfers wcic 10 made formally, and I would support the judgment of the' trial Judge on all three issues raised and argued before him. For the reasons I have given at length, and in the light oi~ the various decisions I have quoted, I think Iwould express my indebtedness to both counsel—once they have argued their 15 case very ably and wcic indeed very helpful to this Court in reaching its decision. Appeal -is ther:fore, dismissed. MALACHTOS J.: This is an appeal by the plaintiff in Action No. 1076/68 of the'District Court of Paphos against the'judg20 ment of a District Judge of that Court where his claim was dismissed andjudgment was given in favour of the defendant on his counterclaim. The dispute arose over a piece of land of an extent of 3 donums, one evlek and 1800 sq. feet situated at Emba village 25 between plot 112, the property of.the appellant-plaintiff under Registration No. 6153dated 20.1.1934and plot 392,the property of the respondent-defendant under Registration No. 7724 dated 25.5.1954. In 1967 the dispute between the litigants was brought by the 30 appellant before the Director of Lands and Surveys in D.L.O. Application No. 1862/67 as a boundary dispute under section 58 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, who decided that the disputed piece of land was covered by the registration of the appellant.as being 35 part of plot 112 and the relevant decision.dated 1.7.19.68-.was communicated to the parties. As a result of non compliance with the said decision of the 245 Malachlos .1. tilling v. HjiSolomou

(1984)Director by the respondent.,the appellant on 30.9.1968 instituted the present proceedings claiming: (

1. a)a declaration of the Court that the defendant has no right in any way over plaintiff's field, plot 112 S/P 45/5!. Registration No. 6153; 5 (
2. b)an injunction ordering the defendant to cease inter­ fering in any way with the plaintiff's said field; (
3. c)an oidi.r for the cancellation or alteration of any registration or impediment affecting plaintiff's right: and 10 (
4. d)£60.- damages and/or otheiwisc. In the statement of his defence the defendant pleaded that the disputed area was never in the posicssion of the plaintiff but it was always in the possession of the defendant and, possibly, by mistake, it was included in the registration of the 15 plaintiff, and that the plaintiff claimed its ownership for thefirst time after the local inquiry was madein Application No. 1862/67 and so he is estopped by conductand/οι otherwise from claiming it. Ths defendant further alleged that the disputed piece of land belongs tohimby virtue of undisputed anduninterrupted posses­ sion for the full prescriptive period, and he adduced the fol1owing counterclaim: (
5. a)a declaration of the Court that the disputed area belongs tohimby long lawful possession and/oradverse possession and that he is entitled to registration by the D.L.O.; 20 25 (
6. b)an order for the registration of the disputed area in defendant's name setting aside and cancelling any other existing registration and/or amending it to the 30 extent that the rights of the defendant are affected; and (
7. c)a declaration of the Court that the plaintiff has no right on the disputed area and/or that he lost his rights. if any. At the trial before the District Court the plaintiff relied exclusively on the strength of his certificate of registration and 246 35 I C.L.R. Lllinjs v. HjiSolomou Malachlot J in suppoit of his case called as a witness only the D.L.O. cleik who carried out a local inquiry on 28.1.1970 by Order of tlu. Court on the basis of the pleadings. 5 On the other hand, the defendant in support of his case besides giving evidence himself, called three more witnesses namely, his wife, Demetrakis 1. Loizides, the son of loulio: D. Loizides late of Emba, and Papagiegorios Nicolaou. tlu priest of Emba. On the evidence adduced the trial Judge found that botf 10 the property of the plaintiff and the defendant as well as th«. disputed piece of land, originally belonged to Demetrios Chr Loizides of Emba under Registration Nos. 1228 of an exteni of 4 donums, and 1235 of an extent of two donums, both datei November, 1890. 15 20 25 30 35 On the 15th November, 1924, after a local inquiry botl registrations, which were of Arazi Mine catcgoiy, WOK transferred in the name of Ioulios D. Loizides, the ί>οη υ" Demetrios Chr. Loizides. Registration No. 1228 was identifier as plot 112 comprising 22 donums and thixe cvleks in exte.v of S/P 51/45 and was transfened in the name of loulioD. Loizidus under Registration No. 4945. Registration No 1235 was identified as Plot 392 comprisingfive donums and twi evleks in extent and was transfen-ed in the name of Ioulios D Loizides under Registration No. 4952. It must be noted here that Plot 112 including the disputes portion is to scale 1/5000 whereas Plot 392 it to scale 1/1251 and that the General Survey for the Paphos area was compbtei on 27.5.1924. Registration 4945 was transferred as a result of a forced sal· and public auction in the name of Melissa Bank under Registra tion No. 6104 dated 25th November, 1933, and later was transferred in the name of the plaintiff under Registration No. 6153 dated 20th January, 1934 and is registered in his name ever since. Registration 4152 was transferred also as a result of a forced sale and public auction in the name of Evlambia Omirou De metiiades under Registration No. 6373 dated 21st May, 1936. It was later transfeircd in the name of Andrianou louliou Loi- 247 Mahiehtos J. UNinas \. HjiSolomou

(1984)/.ides under the same registration No. 6373 dated 20th August, 1942 and was latei transferred in the nam; of Maria Evangelou Charalambous, the wife of the defendant, under the same registration No. 6373, dated 9th August, 1946. Finally, it was transferred by way of gift in the name of the defendant under 5 Registration No. 7724 dated 25th May, 1954. On the question of possession of the disputed piece of land the trial Judge made the following findings as they appear at page 37 of the record: "From all the evidence add\tccd in this action, including 10 that of the D.L.O. clerk (P.W.I). J have no doubt that:(

1. a)When Plaintiff purchased plot 112 he and tire vendor knew that he purchased only the blue area and that the red disputed area was not included; that neither the Plaintiff nor his predecessor in title of plot 112 15 (Melissa Bank) ever possessed ths disputed area or even showed any act of ownership thereon and that h; first started asserting his claim upon it by his application No. AI862/1967 to the D.L.O. Paphos under section 58 of Cap.224 after he discovered that accor- 20 ding to the Survey plan the red area was included in plot 112. (
2. b)When Defendant's wife purchased plot 392 she and the vtndor knew that the disputed area was included in the property purchased and that the disputed area 25 wasalwaysintheexclusivepossession of the Defendant, of his wife and of their predecessors in title to plot 392. (
3. c)The Suivcy plan was wrongly diafted to include the disputed area in plot 112 whereas it always formed 30 part of plot 392 and that this error resulted from the drawing of the separation line between Emba village and locality 'Elics'. (
4. d)The decision of the Director was based on the existence on the suivey plan of the said separation line which 35 was wrongly drafted. The first legal matter which falls for consideration in the present action iswhether Defendant acquired ownership of 248 I CL.lt. 5 Ellinas v. HjiSolomou * Malachlos'.L tire disputed area by long period of possession; but before this point is discussed, mention should be made that Civil Appeal No.4012 (Akil HusseinArnaout v.'Emine'Hu.ssem Zinouri)

(1953)C.L.R. Vol. XIX. pages 249-258,-at,p.-255. leaves no ·doubt ·that registration canLbe- defeated by .evidence of possession by another". Pausing hero for a moment I must say that the findings of . the trial Judge undei (

1. a)and (
2. b)above are correct, with; this modification as regards (b); that when defendant's wife, pur10 chased plot 392 shs and the vendor wcic under the impression that the disputed area was included in the property purchased. As regards his findings undei (
3. c)and (tt), that,the survey plan was wiongly diafted to include the disputed area in plot 112, arc arbitrary and, consequently,, not correct. Besides 15 the fact that this issue is not raised in the pleadings of ιthe defendant, it is also not supported by the evidence adduced. Having gone through the record of proceedings, the only evidence 1could trace on this point was the. evidence.-of, the D.L.O. clerk who in answer to a· general question," in, cross20 examination, stated that "there have been mistakes, made b\ the D.L.O. in the Survey plans and in the registration". It appears that the trial·Judge took into, account this piece • of evidence and applied it to th: case in hand on.the assumption that mistakes must have been made in the present case. 'The 25 trial Judge then proceeded further and concluded his.judgmcm at page 38 of the record as follows: 30 35 "With regard to the legal point in hand; i.i:'that of posses­ sion of the disputed area, this has* been proved to, have • begun on 25.11.1933 when plot 112 was registered in the name of Melissa Bank under registration No. 6104. whilst its previous owner Ioulios D. Loizides retained the regi­ stration of plot 392 and continued possessing;'the' last mentioned plot including· the disputed area. VThist being so, by virtue of the first pioviso to section 10 of the Immo· vable Property (Tenure,1Registration and-Valuation) Law, Cap. 224, the law to. be applied for, prescriptive right by possession is the Ottoman Law as the period of posession began before the date^of the coming into operation of the ;-249 Mtthtchtos J . Ellmas \. HjiSolomou

(1984)said Law (Cap. 224), i.e. before 1.9.46. This has been decided in a number of appeal cases, two of which arc: Civil Appeal No. 4106 (Enver Mehmet Chakarto v. Hussein tzzet Liono)

(1954), 20 C.L.R. part I, page 113, and Civil Appeal No. 4787 {Aspasia Millington-Ward v. Chloi Rou- 5 bina)

(1970)3 J.S.C. page 277. As to the category of the disputed aiea 1 have no doubt that thisfalls within the arazi mirie category, as both plots 112 and 392 aie arazi mine; the period of prescription foi arazi mirie istcnyeais asprovided by Article 20 of the Ottoman Land Code. Plot 392, 10 however, changed tegistered owners and those successive owners came into possession of the disputed area as well; the said successiveregistered ownerswere: Evlambia Omirou Demetriades (registration No. 6373 dated 21.5.36), Andrianou louliou Loizides (regi-tration No. 6373 dated 20.8.42), 15 Defendant's wife (registration No. 6373 dated 9.8.46) and lastly Defendant (registration No. 7724 dated 25.5.54). The question which now remains is: if the periods of possession of the said successive owners can be added to make up the ten years required for ownership bypossession. 20 Civil Appeal No. 4393 (Rodothea Papa Georghiou v. Antonis Savva Charalambous Komodromou

(1963)C.L.R. part 2, pages 221-265, is clear on this point and it decided that possessory rights vested in a person cannot pass to his successor in possession in case of an informal transfer 25 because a transfer of ownership is not made in accordance with the Law, i.e. without transferring the land with the D.L.O., and therefore void. However, in the present action transfoi of plot 392was made legally in the names of the successive registered owners and therefore the period of 30 possession of each such registered owner was transferable and added to the period of possession of. his successor in title. The question left is whethsi with each transfer and registration of plot 392 the disputed area was transferred and registered also independently of its possession. From 35 the evidence of ths D.L.O. clerk (P.W.I) no doubt is left that the boundaries mentioned in each registration of plot 392 covered the disputed area and therefore the disputed area was also transferred and registered, and, in view of the fact that each such registration, save that in the name of the 40 Defendant, wasmadebefore 1.9.46when Cap.224came into 250 I C.L.R. 5 10 15 Lllinas v. HjiSolomou Malachlos .1. operation, section 50 of that Law, which provides that "the area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration can be related *,has no application in the present action and Article 47 of the Ottoman Land Code applies by which the boundaries mentioned fix the area of land of each registiation irrespectively of whether the extent is fixed or not. In view of the above. Ifind that the period of prescriptive right by possession of ten years from 25.11.33 in favour of Defendant of the disputed area has been proved to be completed and also that in view of Article 47 of the Ottoman Land Code even the ownership itself of the disputed area has been transferred to the successive registered owners tip to and including the registration of plot 392in the name of Defendant's wife, which took place on 9.8.46, i.e. before 1.9.46 the date of the coming into operation of Cap. 224, who (defendant's wife) transfened to defendant a complete and perfect titleof plot 392together with thedisputed area". 20 Imust say at the outset that the trial Judge was unfortunately mistaken in taking the view as to what is meant formal and informal transfer in the case of Rodothea Papageorghiouv. Antonis Savva CharalambousKomodromou

(1963)2 C.L.R. 221 and distinguished it from the case inhand. The present ease, in 25 my view, is on all fours with that case. The facts of that case and the reasoned decision appear in the majority judgment of Zekia J., as he then was, from page 232 to 239 of the report and are worth quoting them verbatim. 30 35 "The plaintiff's property is registered under reg. No.6231 dated 21st September, 1949, and is of one donum and two evleks in extent (plot 632). Defendant's plot has registration No. 6555 (plot 631) dated 28th March, 1955.and is of two evleks and 900 sq. feet in extent. Both lands are at Polemi village. The title deeds of the litigants arc based on a survey plan bearing No.45/13. The previous registration Nos. of the title deed of the plaintiff were 2343 and 2344. After a local inquiry, held in 1949, the said registrations were identified to the survey plan and a new title deed, bearing No.6231, wa; issued. 251 Mfllachios J. Ellinas v. HjiSolomou

(1984)The'father of the plaintiff transferred the land, covered by the new title deed, to his son, the plaintiff, in

1. The previous registrations of the title deed of the appel• lart were 2308 and 2309 for which, after a local inquiry, a new title deed, bearing No.6555, was issued in the name of her mother who transferred it in the name of her daughter, the defendant, some time in
2. 5 The Court found that the disputed portion of land was cultivated by the defendant's mother,at least as far baek as 1915 till 1938 or 1939,when thedefendant's mothergave the 10 field Iο the defendant as dowry and from that date the dis­ puted portion of the land was cultivated by the defendant herself until the prisent day. There was an earth bank (ohto), before it was inteifcrcd with by the plaintiff, between the disputed portion and the undispu- 15 ted portion of the land covered by the plot of the plaintiff which bank was onefoot wide and half a foot high and,according tothe Land Registry Officer, whose evidence the Court accepted, the disputed portion is on a lower level, approximately 8" lower than the surface of the remaining portion of the land of the 20 plaintiff. The disputed land was formerly covered by mulbery trees. The trial Court,having recorded the facts, considered whether the period of possession by the defendant's mother could be added to that of the defendant so that the latter would be en- 25 titled to acquire the disputed portion on the stiength of long undisputed adverse possession. The Court held that, inasmuch as the disputed land possessed by Eleni, the mother, could not be transferred verbally, th: defendant was only entitled to the land actually transferred to 30 her under reg. No.6555 which registration did not include th; disputed portion and accordingly the plaintiff was entitled to the injunction claimed for. But, having failed to prove damage*·, the plaintiff's claim as to damages was rejected. Plaintiff was awarded his costs. 35 : There wa; ample evidence as to the facts found by the Court and could not further be challenged. It was the points of law 252 I C.L.R. Kllinas v. HjiSolomou Malachtos ,1 involved which were material in this appeal and which have been argued at length before us. In iny view two are the points of law which fall for decision: 5 10 15 20

(1)Whether the appellant's mother's pciiod of possession 01 part thereof over the disputed portion of land might bt added to the period actually possessed by the appellant so that, prior to the 1st September, 1946, the date of the coming into force of the Immovable Property (Tenurt Registration and Valuation) Law, Cap, 224, she woulc complete the icquired 10 years' period to enable her κ obtain prescriptive right over the disputed land.

(2)Whether the plaintiff-iespondent was entitled to thi injunction restraining the defendant from interfering will the disputed land notwithstanding that th; former wai never in possession of the said land and the inclusion ο the disputed portion of land in his title deed might a· well be due to a mistake. As to thefit st point, possessory rights, prioi to theenactmen of the Immovable Property (Tenure, Registration and Valuation Law, Cap.224, were governed by Article 20 (in thi case of land of Arazi Mirie category) of the Ottoman Land Code and by t h Immovable Property Limitation Law, 1886 (Law 4 of 1886) Aricle 20: 25 30 35 *In the absence of a valid excuse according to the Sacrci Law; duly proved, such as minority, unsoundness of mind duress, or absence on a journey (muddet-i-sefer) action concerning land of the kind that is possessed by title-dee* the occupation of which has continued without dispute fo a period of tenyears shall not be maintainable. The perio of ten years begins to run from the time when the excuse. above-mentioned have ceased to exist. Provided that if tht defendant admits and confesses that he has arbitrarily (fouzouli) taken possession of and cultivated the land nc account is taken of the lapse of time and possession andtht land is given back to its proper possessor'. Section 2 of Law 4 of 1886 reads: 'The period of prescription shall be computed tocommenct 253 Malachtos .1. l.llinas Λ. HjiSolomou

(1984)from the time when the right to brmg an action for the re­ covery of property adversely possessed first arose;' Section 3 of Law 4 of 1886 reads: 'An action for the recovery of immovable property of which some person inwhose namethesamehasnotbeen registered 5 has had undisputed adverse possession for the period of prescription shall not be maintainable unless the person instituting the action has, during some part of the time, of such adverse possession, prior to theexpiration of the period of prescription, been lawfully entitled to be and has been 10 actually icgisteied as the owner thereof; but such action shall bj maintainable where the peison instituting it has during some part of the time aforesaid been lawfully en­ titled to be and has been actually so registered'. Th.; main object of the Immovable Property Limitation Law. 1886 (No.4 of 1886} was, in my view, to amend the second part of Article 20 of the Ottoman Land Code so that a person who adversely possesses a particular piece of laud would not be de­ barred of the right of acquiring ownership of the land even if he acknowledges that he arbitrarily possessed such land. 15 20 Halis Eshref, commenting on Article 20 of the Land Code, at p.200, states: 'The period of possession or abandonment by pcr;on» fiom whom and to whom land devolves and the period of posses­ sion by the transferor and transferee is added up. 2i As the person from whom and the person to whom the property devolves and ;>1so the transferor and the transferee of a property arc deemed to be one person ihe period of possession by both persons should be added'. 1 have no doubt thatthis is a correct intepretationof Article 20 30 but the point in the present case is to find whether the appellantdefendant and her mother could be regarded as transferee and transferor within the scope of this interpretation. The words 'transfer1 and 'transferee' 'farigh' and "mcfroughunlch' are legal termsand, according to Professor Djema- 35 ledin, the corresponding words in French are 'cedant' and *cessionaire'. 254 1 C.L.R. Ellinas v. HjiSolomou Malachtos J. I am inclined to the view that the words "transferor" and "transferee", unless the context otherwise requires, could not be taken to include informal void transfers. The same words, transferor and transferee, occur in Article 36 of the Land Codi 5 which reads: 10 )5 20 25 Ά possessor by title deed of State land can,with theleaveof the Official, transfer it to another, by way of gift, of for a fixed price. Transfer of State land without the leave of the Official is void. The validity of the right of the transferee to have possession depends in any case on the leave of the Official, so thatif thetransferee dieswithout theleave having been given the transferor (farigh) can resum; possession of it as before. If the latter dies (before the leave is obtained) leaving heiis qualified to inherit State land as hereafter appears they inheritit. If thereareno such heirs it becomes subject to the right of tapou (musthiki tapou) and the transferee (mefroughunleh) shall have recourse to the estate of the original vendor to recover the purchase money. In the same way exchange of land is in any case dependent on the leave of the Official. Every such transfer must take place with the acceptance of the transferee or his agent'. The transfer of a State land (Arazi Mirie) without the leave of the official was void. The mode of transfer, however, was altered by a Law of 1890, the Land Transfer (Amendment) Law. By section 40 of the Immovable Pioperty (Tenure, Registration and Valuation) Law, 1946, Cap. 224, it was enacted that '

(1)No transfer of, or charge on, any immovable property shall be valid unless registered or recorded in the District Lands Office. 30 35

(2)No transfer or voluntary charge affecting any immovable property shall be madein the Distiict Lands Office by any peison unless he is the registcied owner of such property: Provided that the executor or administrator of an estate of a deceased person shall, for ths purposes of this subsection, be deemed to be the registered owner of any immovable property registered in the name of the de­ ceased'. It is clear from the old and new law relating to the transfer of 255 Malacbtos J. KHinat v. HjiSolomou (IW4) immovableproperty thatregistration inonewayortheotherwas necessary for the validity of the transfer. Inthiscas-*themother,thepredecessor-in-title of theappellant was not, as far as the evidence goes, the registered owner in respect of the disputed poition of land and when she made a 5 gift of the land possessed byher including the disputed portion as dowry to her daughter, the appellant, in 1938or 1939,that giftnothavingbeen madeinaccordancewiththe Law,couldnot beconsideredtobeatransfer inthelegalsenseofthewoid. On the other hand whtn she tiansfcrred the land registered in her 10 name, which registration did not include the disputed portion, in 1955thattransfer couldnot comprisethedisputedportion on account of section 50 of the Immovable Property (Tenure Registration and Valuation) Law, which reads as follows: 'The area of land covered by a registration of title to im- 15 movableproperty shall bethe area of theplot towhichthe registration can be related on any government survey plan or any other plan made to scale by the Director: Provided that wherethe registration cannot berelated to any such plan such area shall be the area of the land to 20 which the holder of the title may be entitled by adverse possession, purchase or inheritance'. Theperiods ofpossession ofan area of land by successor and predecessor-in-title could beadded up incasesof devolution by inheritanceand intransfers wherethetitledeedisnot related to 25 a surveyplan,excludingtheaiea inquestion, and insuchacase theproviso to section 50will operate and the period of adverse possession by transferor and transferee will then be added up. Prior to 1946,when Article47 of the Ottoman Land Codewas in force in a transfer where the boundaries were indicated the 30 extentoftheareamentionedwasnot material butwhatmattered wasthearea included within theboundariesnamed; Article47 reads: 'When thereisa questionas to land soldasbeingofa definitenumberofdonumsorpicsthefigurealoneistakeninto 35 consideration. But in the case of land sold with boundariesdefinitely fixed andindicated thenumber ofdonumsor picscontained withinthemarenot taken into consideration whether mentioned or not, the boundaries alone are taken 256. I CUR. 5 10 Lllinas v. HjiSolomou Malachtos J. ' into account. So for example if a piece of land which has • been sold, of which the owner has fixed and indicated the boundaries, saying that thay contain twenty-five donums, such owner cannot claim from the purchaser cither the separation and return of seven donums of land or an en­ hancement of the purchase money, nor if he dies after the transfer can his ascendants or descendants prosecute such a claim. Similarly if the piece of land only contains eighteen donums the transferee cannot claim the refund of a sum of money equal to the value of the seven donums'. Before the General Survey and the system of registration with reference to a survey plan was introduced in this country, trans­ fers by kotchansor tapousenedswerein vogue. These kotchans 15 and seneds as a rule did not relate to any survey plan and there­ fore where a dispute between two neighbouring land-owners in respect of aportion of land falling between their properties arose the only way of deciding thedispute was to find out which of the neighbouring land-owners had undisputed possession over the 20 disputed portion and in such cases possession by transferor and • by transfciee of thedisputed portioncould becomputed together. •Thefirst proviso to section 10of the Immovable Property(Tenu­ re, Registration and Valuation) Law has been interpreted by this Court in a number of cases and needs no further consideration. 25 The period of prescription, if not completed by 1st September, 1946, cannot be completed thereafter against a registered owner and in this case the possession started by the appellant in 1938 or 1939 being incomplete by 1st September, 1946 it cannot be completed after that date against a registered owner the father 30 ' of the respondent and later the respondent in this case, by con• tinuing • to possess the land in dispute. 1 am of the opinion, therefore, that whatever possessory rights • werevested in the mother of the appellant in respect of disputed land those rights'did not pass to'thedaughter either by virtue of 35 ' theagreement of dowry in 1938 or 1939 or on'the strength of the ι transfer in 1955 which transfer did not include'thcdisputed land. As to the2nd point,Ithink thecase of HjiGeorghiHjiKyriacou ••and anotherv. KyprianoManuel

(1910), 10 C.L.R. p.15, is to the point. TTierc the defendant by a cross-action claimed a right "'257 Malachtos J. Ellinas v. HjiSolomou (198-1) to registiation on the ground of prescription but failed to prove his claim. On the other, hand, it had been proved that the plaintiff's title deed was obtained by a false certificate and on this fact the District Court dismissed the plaintiff's claim. The Supreme Court, however, allowed the appeal with costs. 5 Tyser, C.J., at page 16 states: "The Courts are not Courts of Appeal from the Land Registry Office. All that the Court does is this, that where by subsistence of anyregistration injuiy isdoneto someone who is entitled to the land, and where the person aggrieved 10 comes into Court to assert his rights as against the person registered, the Courthearshisclaimand makes a declaration of his rights, and the Land Registiy Office acts upon the Court's declaration. The Court has no right to take the qochan into its own li hands, and without the qochan's being challenged by any person entitled to the property, to decline to enforce it". Further down, Bertram. J. says: "I agree. No claim to have this qochan set aside on the ground that it was given on a false certificate was made in 20 the cross-action, and even if it had been made it could not have succeeded, as the defendant was neither herself registered nor entitled to be registered cither on the ground of prescription or otheiwise. It is clear from the case of Juma v. Hal·'/ Imam

(1899)5 25 C.L.R. 16, that a person who has neither a qochan nor a right to a qochan cannot challenge a tresspasser. Much less can he challenge a person armed with a qochan. And if the defendant is not entitled to challenge the plaintiff's qochan by cross-action, still less can he do so by way of 30 defence'. Perhaps a brief reference might also be made to the case of Tsikinou HadjiSavva against Kyriakou Georghiou Maroulou

(1907)7C.L.R., p.89where it was held that in a dispute asto the boundaries between two adjoining proprietors, both claiming JS under kotchans, each of which isconsistent with the claim of the person holding under it, and where one of the parties is in possession of the land in dispute, the onus lies upon the party seek258 1 C.L.R. lillinas v."HjiSolomou Malachtos J- ing to disturb that possession to establiih his claim to the satisfaction of the Court. Obviously, this case is distinguishable from the present one because the title deeds of both parties arc not equally consistent with claim and counter-claim. Had the 5 transfer in thenames of the litigantsbeen madewithout reference to plots in a survey plan no doubt this case would have a strong bearing in the present appeal. On the former authority quoted Iam of the opinion that even if the registration in the name of the respondent in this case 10 included the disputed portion by mistake he was entitled to have judgment in his favour. I would, therefore, dismiss the appeal with costs". Itisclear from the above casethat formal transfer of immovableproperty in caseswherethecertificate of registration isbased 15 on the survey plan means the transfer through the D.L.O. of the plot to which the registration relates and nothing more, nothing less. Land which is possessed by the transferor over and above the plot to which his certificate of registration relates does not pass to the transferee of that registration. It is immaterial 20 whether suchtransfer was made before the 1st September, 1946, the date of coming into force of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, or after such date. The position is different when the registration of the transferor is not based on the survey plan. The case of Hji 25 Savva v. Maroullou (supra) is clear on this point. Applying the above principles to the facts and circumstances ofthecaseinhand, and assumingthatpossession ofthe disputed portion of land by the predecessors in title of the wife of the respondent, could be added up, so that she could complete the 30 ten years required period under the old Law, as found by the trial Judge, since the transfer of the property in the name of the respondent took place after the coming into force of the new Law, her possession could not be added up to that of the respondent, as the certificate of registration was based on the 35 survey plan and did not include the disputed portion. To make matters more understandable, let us suppose that the wife of the respondent was the purchaser of the pioperty instead of EvlambiaOmirou Demetiiades and was keeping it in her pos259 Malai-titos J. KHinas \. HjiSolomou

(1984)session till the time she transferred it in the name of the respondent in

1. Certainly she would have completed the required ten years period to enable her to obtain prescriptive right over the disputed portion prior to the 1st September,
2. the date of the coming into force of Cap.
3. 5 And 1 pose the question. Could the position of her husband be different from the position of the appellant in the case of Papageorghiov v. Komodromou (supra)? Certainly not. 11 would be exactly the same. However, a* I have already iaid carlhr in this judgment, the 10 trial Judge waswrong in decidingthat possession of the disputed piece of land could be added up to that of the wife of the respondent,ashehasmisinteipreted andappliedthe woids"formal transfer" referred to inthecaseof Papageorghiou v.Komodromou • (supia). 15 In the present case wehave it that the registrations of both the appellant and the respondent on25.11.24, shortly after the General Survey for the Paphos District had been completed, were issued in the name of Ioulios D. Loizides under Nos.4945 and 4952, respectively, both based on tht survey plan. Registration 20 No.4945, eventually the property of the appellant, was identified as being plot 112 comprising 22 donums and three cvleks in extent and covering the disputed piece of land, was transferred as a result of a forced sale at a public auction to Melissa Bank, as the higliest bidder, under Registration 6104 dated 25th No- 25 vember,
4. About two months later, this property was transferred in the name of the appellant undei Registration No. 6153 dated 20th January,
5. Registration No. 4952, eventually the property of the respondent. wasidentified a?plot 392 comprisingfivedonums and 30 2 cvleks in extent, was also transferred, as a result of a forced sale and public auction in the name of Evlambia Omirou Demetriades, as the highest bidder, under Registration No.6373 dated 21st May,
6. Obviously, what was put up for sale at the public auction of 35 1both'properties and formally transferred through the D.L.O.,was 260 I C.L.R. CHinas v. HjiSolomou Malachtos J. plot 112 which included the disputed portion in the name of Melissa Bank and plot 392inthe nameof Evlambia Omirou Demetriades. So,when thewife of the respondent bought plot 392 from Andrianou louliou Loizides, who had purchased it from 5 Evlambia Omirou Dcmctriades what was formally transferred inher name through theD.L.O.,wasapiece of land of an extent of 5 donums and 2 evleks which did not include the disputed portion. Consequently, the disputed portion was never formally transferred in the name of the successive owners of plot 392 10 and so no one of them had completed the ten years prescriptive period required under the Law in force prior to 1st September.
7. For the reasons stated above, 1would allow the appeal, set aside the judgment of the trial Court and give judgment and 15 Order as per paragraphs (a) and (b) of the claim of the plaintiff in the action, with costs, both here and in the Court below. L. Loizou, J.: I have had the advantage of reading and discussing the judgment of my brother Malachtos, J. with him and I am in full agreement that for the reasons stated therein 20 the appeal should be allowed. It is common ground that the disputed portion of land is included in appellant's registration 6153 of the 20th January, 1934; it is also a fact that shortly after the completion of the general survey in Paphos on ths 27th May, 1924, appellant's 25 plot was identified asplot 112and that of the respondent as plot 392,inboth instancesafter a local inquiry and that the respective titledeedsof the two properties arcrelated to a surveyplan made to scale. Having regard to the history of the registrations of the two 30 plots,whichisgivtnindetailinthejudgment, evenon the assumption that any possessoiy rights may have been vested in the prcdccessor-in-titlc of the respondent, his wife Maria Evangeli Chara!ambous, in respect of the disputed portion of land which does not seem to be the case - such rights could not pass 35 to her husband, therespondent, whenplot 392,which admittedly did not include the disputed land, was registered in his name on the 25th May, 1954 i.e. after Cap. 224 came into force on the 261 L. Loizou J. Ellinas >. HjiSolomou

(1984)1stSeptember, 1946.under registration 7724and this on account of s.50 thereof. Inthe result thejudgment of the trial Court issetasideand the appeal is allowed by majority with costs here and in the Court below. Appeal allowed by majority. Order for costs as above. 262 5