1C.L.R. 1987February19 [A LOIZOU, DEMETRIADES, PIKIS.JJ]
- KYRIAKI MICHAEL ELIA
- ANDRIANITHEOCHAROUS. Appellants-Defen danrs. v. KYRIACOU ALEXANDROU, Responden t-Platntiff. (CivilAppeal No. 6700). Immovable Properly—Right of way—The immovable Property (Tenure Registration and Valuation} Law,Cap.224—Sections 11,
- and 55—Right of way recordedby virtueofjudgment of acompetent Court—Oncethiswas proveditwasup tothedefendants—the ownersof theservientplot—τοsatisfy ** the Courtthatthejudgment was obtainedunlwafully orillegally The trial Court found that plaintiff/respondent's property had acquired a right of access, 4 in width over defendants/appellants' property, thatsuch right was recognised by ajudgment of aCourt,thattherightwas-recordedm the Land Registry Office and also inserted jn the plaintiff's certifica'e of 1U registration and thatatthetime thedefendants were registered as owners o r theirsaid property,the above nghtof way was notrecorded or registeredm theLandRegister.ThetnalCourtconcludedthattheplaintiff's claimwasnot foundedonthesaidjudgment,butonadulyregistered nghtofway whichw->? recorded because it was recognised by ajudgment of a competentCourtas " 1 5 - -- provideabysectionsll,12and_55*ofCap.
- 20 Held,dismissing theappeal,thatoncetherespondentproved thatthenght of way was recorded in the D.L.O. books by virtue of a judgment of a competent Court,it was up to theappellants to satisfy the Court thatsuch judgment was obtainedunlawfully orillegally,something thattheappellants failed todo. Appealdismissed with costs Appeal. Appeal by defendants against thejudgment of iheDistrictCourt 25 of Paphos (Anastassiou, S.D.J.) dated the 11th February, 1984 (Action No. 509/78) whereby itwas found that the plaintiff had a *Thesesectionsarequotedatpp.54-55post. 53 EllaΛ Anotherv.Alexandrou
(1987)rightof way in favour of her property under Reg. No. 3899 over the property of defendants under Reg. No.3696 situated at K. Pyrghos. E.Komodromos withY.Droushiotis, for theappellants. E.Efstathiou,for therespondent. 5 Cur. adv.vult. A. LOIZOUJ.: The judgment of theCourtwillbe delivered by H.H.Judge Demetriades. DEMETR1ADESJ.:Thisisanappealagainst thejudgmentofthe Senior DistrictJudge of theDistrictCourtof Paphos,by wnich he 10 found thatthe respondent in thisappeal, who was theplaintiff in Action No.509/78 of the DistrictCourt of Paphos, had a right of way in favour of her property under Registration No.3899, plots 447/1 and 447/2 of Sheet Plan 18/36 situated at Kato Pyrgos, over theproperty of theappellants,the defendants inthataction, 15 under Registration No.3696, plot 440/1 of the same Sheet Plan, alsosituatedatKatoPyrgos andthatthesaidrightofway hadbeen recorded inthe DistrictLandsOffice (D.L.O.)books by virtue of a judgment of theDistrictCourtof Nicosiasitting;atMorphougiven inAction No.516/69 recognising same. *' 20 Inthe 12th Editionof GALEon Easementsatp.l, one reads: «In addition to the ordinary rights of property, which are determined by the boundaries of a man's own soil, the law recognises the existence, as accessorial to these general rights,of certainotherrightstobe exercised over theproperty 25 of aneighbour, and therefore imposing aburden upon him.» For these types of rights our legislator has made specinc provisions in the Immovable Property (Tenure,Registration and Valuation) Law, Cap.224, section 11 of which provides: «11.
(1)Noright of way or any privilege,liberty, easement, 30 or any otherright or advantage whatsoever shall be acquired over the immovable property of anotherexcept (
- a)(
- b)(c)where the same hasbeen recognized by a judgment of a 54 35 1 C.L.B. EUa ft Another v.Aleundrou Demetriades J. competentCourt; or (
- d)(
- e)(
- f)5.
(9)* Relevanttosection 11aresections 12and 55ofthe same Law, which read: 10 «12.
(1)Where any right, privilege, liberty, easement or other advantage has been acquired as in subsection
(1)of section 11ofthisLawinrespect ofanyimmovable property. thesameshallbedeemed tobeattachedtosuchpropertyand tobeincluded inanydealingmade*with such property. 15
(2)Where any such right, privilege, liberty, easement or other advantage hasbeen abandoned bynotice inwriting to the DistrictLandsOffice orhasnotbeen exercised forthe full period of thirty years without interruption, the sarne shall be deemed tohave lapsed.
(3)20 55. Where any land is subject to or enjoys any right. privilege, liberty, easement or other advantage as in section 12 of this Law, the same shall, on the application of any ~—interested party,be recordedjnjhe^and Registerand inthe certificate of registration relatingtosuch land^ ~~ — The claim'of the respondent, as itappears in her Statement of 25 Claim,wasthatshe,asownerofheraforesaid property,hada right of way through the property of the appellants and that her said right was recorded in the D.L.O. books by virtue of a judgment given in her favour in Action No.516/69 of the District Court of NicosiasittingatMorphou andbywhichitwasrecognised thatshe 30 wasentitled tosuchright. Bypara.2 of their Statement of Defence and in answer to the aboveallegationoftherespondent,theappellantsdentedthatthe respondent was entitled to a right of way over their property in that35 (a)thesaidrightofwayhadnolegaleffect becauseontheda>. 55 Demetriades J. Elia&Anotherv.Alexandrou
(1987)of the transfer of the property in their name the said easement wasnot recorded on theirtitledeeds; (b)as they were bona fide owners of their property the respondent couldnotclaimtheexerciseofheralleged right of way;and 5 (c)at the time of the transfer of the property into'their names the said easement was neither recorded in the D.L.O. books nor was it recorded on the title deeds of their predecessor intitle. However, in para.4 of their Statement of Defence, the 10 appellants do admit the allegation of the respondent that their property isburdened witha rightofwayofa widthoffour
(4)feet infavour of the property ofthe respondent. The appellants by counterclaim pray for the annulment of any Court order given for a right of way in that the said order was granted unlawfully and illegally. After hearing theplaintiff, herwitnessesandtheevidence ofthe only witness called bythedefence, the trialCourt had thistosay: «Iwasverywellimpressedwiththeevidenceofthe plaintiff as well as with the evidence of all her witnesses and despite 20 the existence of some discrepancies of which Ihave not lost sight,yet,IbelievethattheytoldmethetruthandIaccepttheir evidence astrue and correct-and reliable toact upon, On the contrary, the onlydefence witness,didnot impress me favourably and Idisregard his evidence. He was biased 25 and came to Court to give evidence in an effort to help the defendants who are his relatives; he denied completely the existence of the said right of way over plot No.440/1, a fact which is not denied, {para4 of the statement of defence) by thedefendants themselvesandhecompletelyignoredthathe 30 had any knowledge of the existence of the proceedings in Action No.516/69, a case which wasagainst hiswife and his mother-in-law, somethingwhich ought tobe known byhim. In the light of the above findings, I reach the following conclusions:(a)That the plaintiff and the defendants are the registered 56 35 1C.L.R. Elia & Another v.Alexandrou Demetriades J. owners of the plots asmentioned above, under Reg.Nos. 3899and3696 respectively. 5 10 15 (b)That plot Nos.447/1 and 447/2 beingtheproperty ofthe plaintiff hasacquired arightofaccess,4'inwidthoverplot No.440/1,somethingwhichwaSrecognisedbyajudgment of the District Court ofMorphou inAction No.516/
- . (c)Thattheaboverightofwayhasbeen recorded intheLand RegistryOffice and alsoinserted intheplaintiff's certificateof registration by virtue of Application No. A1043/77 in accordance withs.55 ofCap.
- (d)That the defendants were registered as owners of Plot No.440/1since24.5.71andthatatthetimeofsuch transfer and registration, the above right of way over their said property was not registered or recorded in the Land Register. (e)That the said right of wayover the Defendants' property, plot440/1 isallalongtheboundary linewith plot440/2.» Andthen hemadethefollowing findings: 20 «Itisclear from the whole caset that the plaintiff's claimis founded notontheabovementionedjudgment butor,c:duly registered right of way in the L.R.O. Register which was recorded because it was recognised by a judgment of a competent Court as provided by sections 11, 12 and 55of Cap.224whichIhave enumerated.» 25 Considering the evidence adduced, the trial Judge rightly reached his conclusions as once the respondent proved that the right of way was recorded in the D.L.O. books by virtue of a judgment of a competent Court, that isthe Nicosia DistrictCourt sitting at Morphou, recognizing same, itwas up to the appellants 30 to satisfy the Court that such judgment and the consequential recording of it in the D.L.O. books was obtained unlawfully and illegally,somethingthat the appellantsfailed to prove. Aswefindthatthereisnomeritinthisappeal,wedismissftwith costsinfavour of the respondent. 35 Appealdismissed with costs, 57