(1986)1984 November 29 [L. Loizou, HADJIANASTASSIOU AND MALACHTOS, JJ.] PETROS PAPAYIANNI IN HIS CAPACITY AS TREASURER OF THE IRRIGATION DIVISION ENGLISIS-PSILO-PELENDRIOU, Appellant-Plaintiff, v. STYLU CHARALAMBOUS PATSIAOUROU AND 3 OTHERS, Respondents-Defendants. (Civil Appeal No. 5111). Irrigation Division—Formation—Evidence as to—Sections 3, 4, 5 and 9 of the Irrigation Divisions (Villages) Law, Cap.
- Civil Procedure—Pleadings—Issueraised in the Statement of Claim—But not disputed in the statement of Defence— Whether Court can find against plaintiff. 5 The plaintiff, in his capacity as Treasurer of the Irrigation Division of Pelendri village "Psilo" Spring Englisis river, claimed an injunction restraining the defendant from using the water of the upper channel and damp of the 10 said Irrigation Division to irrigate their properties over and above the time of 6 hours and 29 minutes for every 8 days. The trial Judge dismissed the action after, inter alia, finding that there was no evidence as to the observance of 15 the provisions of the Law as regards the formation of the said Irrigation Division in accordance with sections 3, 4, 5 and 9 of the Irrigation Divisions (Villages) Law, Cap.
- Upon appeal by the plaintiff: Held, that the evidence as to the formation of the Irrigation Division in accordance with the Law was over- 376 20 1 C.L.R. 5 Papayianrti v. Patsiaourou whelming; that, further, the formation of the said Irrigation Division, under the provisions of Law Cap. 342, was never disputed and that the defendants in the action and their parents never lodged any objection to the list of proprietors which was posted under section 16 of theLaw, and that, accordingly, the appeal must be allowed. Appeal allowed. Appeal. 10 15 Appeal by plaintiff against the judgment of the District Court of Limassol (Michaelides, Ag. D.J.) dated the 8th July, 1972 (Action No. 2972/70) whereby his claim for an injunction restraining the defendants from using the water of the upper channel and damp of the Irrigation Division of Pelendri village was dismissed. A. Neocleous, for the appellant. Y. Potamitis, for the respondents. Cur. adv. vult. L. Loizou J.: The judgment of the Court will be delivered by Mr. Justice Malachtos. 20 MALACHTOS J.: This is an appeal by the plaintiff in his capacity as Treasurer of the Irrigation Division of Pelendri village "Psilo" Spring Englisis river in Action No. 2972/70 of the District Court of Limassol, against the judgment of a District Judge of that Court where his claim for an 25 injunction restraining the defendants, their agents and servants and/or their assignees, from using the water of the upper channel and damp of the said Irrigation Division to irrigate their properties over and above the time of 6 hours and 29 minutes for every 8 days, as well as his claim 30 for £50.- by way of compensation for damage caused to the proprietors of the said Irrigation Division as a result of the above interference, were dismissed. The facts of the case, shortly put, are the following: The Irrigation Division of Pelendri "Psilo" spring Engli35 sis river, consists of two channels with two corresponding water damps in the said river. From the upper channel and 377 Malachtos J Papayianni v. Patsiaourou
(1985)damp the gardens of about 12 riparian owners "proprietors", are irrigated, among whom, the parents of the respondents. At the material time the respondents, were the proprietors of the said properties by way of grant from their pa- 5 rents. In the statement of claim there is an allegation that the respondents are members of the above Irrigation Division and are entitled to water their properties for 6 hours and 29 minutes every 8 days. There is also an allegation 10 that the respondents as from May, 1970, till the 24th October, 1970, the date of the filing of the action, were using the water of the said channel for more time than the time they were entitled and so they caused damage to the other proprietors of the said Irrigation Division, which 15 damage was assessed at £50.In their defence the respondents admit the formation of the said Irrigation Division and that they were using for the irrigation of their properties the water of the first channel and damp but they allege that they had a right 20 from time immemorial (ab antiquo right) to water their said properties without any time restriction. In order to prove the allegations in the statement of claim, 8 witnesses were called by the plaintiff, including a D.L.O. clerk, a former director of the D.L.O. Limassol, 25 a clerk from the office of the District Officer of Limassol and a clerk from the Irrigation Development of Limassol. In support of the case for the respondents four witnesses gave evidence, including the first respondent and his father. The trial Judge, after analysing the evidence, made the following findings: 1. That there was no evidence as to the observance of the provisions of the Law as regards the formation of the said Irrigation Division in accordance with sections 3, 4, 35 5 and 9 of the Irrigation Divisions (Villages) Law, Cap. 342; 2. That the defendants or their parents ever gave their 378 30 1 C.L.R. Papayianni v. Patsiaourou Malachtos J. consent to become members of the said Irrigation Division; and 3. That the defendants and their predecessors in title were irrigating their said properties without any restriction, 5 as regards time, from time immemorial before and after 1946 when the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, came into force. . Counsel for the appellant in support of the grounds of appeal submitted the following: 10 (
- a)Inspite of the fact that the defendants in the action never disputed in their statement of defence the formation of the said Irrigation Division and inspite of the fact that the evidence adduced before the trial Court was not only sufficient but was the only evidence under the circum15 stances possible to be adduced, the trial Judge wrongly decided that the provisions of the Law for the formation of the said Irrigation Division were not observed; (
- b)The judgment of the trial Court, that the defendants were never members of the plaintiff Irrigation Division and 20 that their properties were never covered by the said Irrigation Division, is wrong and against-the weight of evidence and of the provisions of the Irrigation Divisions (Villages) Law, Cap. 342; (
- c)The judgment of the trial Court that the defendants 25 acquired a right on the spring in question, is wrong in Law and against the weight of evidence adduced before the Court and is also contrary to the provisions of section 42 of Cap. 342 and the provisions of section 22 of the Immovable Property (Tenure, Registration and Valuation) 30 Law, Cap. 224; and (
- d)On the basis of the pleadings and the evidence adduced as well as the relevant Law Cap. 342 the judgment of the trial Court ought to have been in favour of the plaintiff Irrigation Division, and not against it. 35 Counsel for the appellant finally stated that he did not insist on the claim of £50.- damages. Having gone carefully through the record of proceedings before the trial Court, we must say that we are in full 379 Malachtos J. Papayianni v. Patsiaourou
(1985)agreement with the submissions of counsel for the appellant. The evidence as to the formation of the said Irrigation Division in accordance with the Law is overwhelming. Furthermore, it is clear from the evidence of P.W. 2, who is in charge of the Water Development Department of Limassol, that the parents of the respondents were included in the list of proprietors, exhibit 2, who submitted on 17th May, 1942, the application for the formation of the Irrigation Division in question. 5 Another piece of evidence, which escaped the attention 10 of the trial Judge in the present case, is that the formation of the said Irrigation Division, under the provisions of the Law, Cap. 342, was never disputed and that the defendants in the action and their parents never lodged any objection to the list of prorietors which was posted under 15 section 16 of the Law, but, on the contrary, defendants 1 and 3 on the 21st May, 1961, addressed exhibit 9 to the District Officer of Limassol, where they admit that they are members of the said Irrigation Division and that they were applying to include in the said Irrigation Division 20 additional properties which they cultivated after the formation of the said Division and that the water which is allotted to them for 6 hours is not sufficient and were suggesting to be allotted water for 12 hours every eight days. For the reasons stated above, this appeal is allowed and 25 the judgment of the trial Court is set aside and judgment is entered in favour of the appellant in his capacity as Treasurer of the Irrigation Division Pelendri Village "Psilo" spring Englisis river, for an injunction restraining the respondens-defendants, their agents and servants and/or 30 their assignees, from using the water of the first channel of the said Irrigation Division for watering their properties for more than 6 hours and 29 minutes every 8 days. As regards costs, we hold the view that the appellant is entitled to his costs against the respondents, both here and in the Court below and, an Order is made accordingly. 35 Appeal allowed. Order for costs as above. 380