(1987)1987 January 26 ΙΑ L01Z0U,DEMETRIADES, KOURRiS, JJ.] KYRIACOS GEORGHIOU PANAYl, Appellant-Defendant, v. MARIAK.ZOUVANl, Respondents-Plaintiff. (CivilAppeal 6888). Immovableproperty—De factopossession of—Gives rightto retain possession and undisturbedenjoymentasagainstallwrongdoers, butnotasagainstthe lawfulowners orpersons denvingauthorityfromsuchowner—~JustertO—rSot a defence to anactionby thepossessor,unlessdefendantcanshowi/iafacf complainedof wasdone bytheauthorityof thetrueowner. 5 Immovable property—prescription—Prescriptive rights cannot be acquired throughoraltransferEvidence—Secondary evidence—Immovable property—Loss of the recordsof D.L.O. Famagusta and of the certificate of registration by reason of the Turkish invasion and occupation—Secondary evidence admissible to 1 0 establishregisteredHue overaparticularplot, The trialCourtfound thatthe respondentwas theregisteredownerofplot 312 Sh/Pl.42/12inthevillageofSotera inFamagusta District,includingthe disputed portion, which was in the possession of the appellant and, consequently orderedtheappellanttostopinterfering withthe saidportion. 1 5 The sole ground argued on appeal was against the conclusion thatthe disputed portion was intheownership of the respondent.Thesaidportion wasoccupiedbythefatheroftheappellantsometimeafter theSecondWorld War and since 1976by the appellanthimself. Itshouldbenotedthatby reason of theTurkish invasion andthe occupationof a great part ofthe Districtof 2 0 Famagusta neithertheretevant recordsofthe DistrictLandRegistry Office of Famagustanorthe certificate ofregistration ofthe saidplotwereavailablefor use at the trial. As a result respondent's ownership was established by secondary evidence. Held,dismissingtheappeal, Kourris,J.dissenting:
(1)Adefactopossession gives to the possessor a right to retain his possession and undisturbed enjoymentasagainstallwrongdoers,butitisnotsufficient at againstthelaw* ful owner. He,whohassuch possession, maysueanyonewhodlstrurbshis possession andinsuchacasejustertiiisnodefence,unlessthe defendant can 58 *5 1C.L.H. 5 10 Panaylv.Zon van! showthattheactcomplainedofwas doneby theauthorityofthetrueowner. As in this case the appellant does not claim the disputed portion on the strength of ownership either registered or prescriptive, but only on the strength of hispossession, theissueswererightlynarrowed down totheone groundargued inthisappeal.
(2)ThelossoftherecordsoftheD.L.O.andinmanycases,asinthepresent one, thelossof thecertificates of registration themselves aswell,permitsone toinvoketherulesastosecondaryevidenceinordertoestablish hisregistered tide over aparticularplotofpropertyoncetheabsence of theprimarysource hasbeensatisfactorily explained.Thiscoursewas theoneopentoandindeed followedby thepartiestothese proceedings.
(3)Onthetotalityof thecircumstancesbefore thisCourtand inthelightof the findings of fact made by the trial Judge and the conclusions drawn therefrom the conclusion.' is that the respondent proved her case in 1 3 accordancewith thestandardrequiredina civil case,therebeing nothingto contradict her version that the whole of plot 312 was covered,by her registration and without excluding the disputed portion over which none couldhave atideeitherregistered orprescriptiveasitshould notbe forgotten that the appellant could not have acquired through oral transfer any 2 0 prescriptiverightthathisfathermighthaveacquiredbefore theappellanttook over. Appeal dismissedwithcosts. Casesreferredto: Adamou v. Christofi{\9ΊΛ)1C.L.R. 100; 2 5 r -—-Uassidou andAnother v. Papademetriou
(1975)1_C.LR.J2_2; Papahizou v. Themistodeous, 22 C.L.R. 177; Papageorghiouv.Komodromou
(1963)2 C.L.R. 221; CyprusAsbestosMinesLtd. v. Skoufaris andAnother,1964 C.L.R.6. Appeal. 30 Appeal bydefendantagainstthejudgmentoftheDistrictCourt of Famagusta (Constantinides,S.D.J.)dated the 19th February. 1985 (Action No. 74/83)whereby itwasfoundthatthe plaintiff wa*theregisteredownerofPlot312,Sh/Plan42/12intheareaof Sclera villageand an injunction restraining thedefendant from 35 interferingwiththeabove piotwasissued. G.Pittadjis,fortheappellant. Z. Myhnas,for therespondent. 59 Curadv. wit. Panayiv. Zouvani
(1987)The following judgments were read: A.LOIZOU,J.:Thisisanappeal against thejudgmentof aJudge of the DistrictCourtof Famagusta by which he,having found that the respondent was the registered owner of plot No.312 Sheet/ plan 42/12 inthevillageof Sotera inFamagustaDistrict,including thedisputed portion,orderedtheappellanttostopinterfering with the said portion and adjudged him to pay £283.- costs of the action. 5 The sole ground argued before us is against the conclusion of the learned trial Judge that the disputed portion of which the 10 appellant was inpossession was theownership of therespondent. Indeed one would expect to have the issue so narrowed down inasmuch as the aDDellant claims only on the strength of his possession that is the occupation or physical control of same but does not claim and rightly so in our view on the strength of 15 ownership either registered or prescriptive as a de facto possession gives a right to retain his possession and undisturbed enjoyment as against all wrong doers. Itisnot, however, sufficient as against the lawful owner. He who has such a possession may sue anyone who disturbs his possession just as may the lawful 20 owner, and in such an action itis no answer for the defendantto show thatthetitle andrighttopossession isinanotherperson;jus tertifis no defence to the action, unless the defendant can show that the act complained of was done by the authority of the true owner. (See Adamou v. Christofi
(1974)1 C.L.R. 100 and 25 Liassidou and Another v. Kyriakos Papademetriou
(1975)1 ζ C.L.R. 122 and ClerkandLindsel! on Tort14th Editionparagraph 1321). The plot in question abuts the State Forest otAyiosNikandros , in the area of Sotera village. The disputed portion is separated 30 from therestofplot312 byastraight lineofoldcypresstreeswhich must have been planted years ago -according to one version in 1926 -the rest of the portion of plot 312 has been occupied and cultivated by the respondent since the middle of the decade of 1960. Some time after the Second World War the disputed 35 portion was occupied by the father of the appellant and since 60 1C.L.R. Panayiv.Zouvanl A.LoUou, J. 1976, by the appellant himself. The dispute arose some time before the Turkish invasion. It appears, however, that the problems connected therewith have in so far proved by the ffligants of relevant issues are concerned by the loss of, and 5 nonaccessibility to,therecordsoftheDistrictLand Registry Office of Famagusta as a result of the occupation byTurkish forces ofa great part of the said district, including the place where the recordswere last kept. Moreso,thisaffectstheproof ofregisteredownershipinrespect 10 of land situated in that district. Hence the enactment of the Immovable Property (Transfer) (Temporary Provisions) Law, 1975LawNo.55of 1975,asamended byLawsNo.2of 1979and No.21 of 1982, making temporary provisions for the transfer of immovable property when L.R.O. recordsare lost. 15 Naturally the loss of these records and in many cases, as in the present one, the loss of the certificates of registration themselvesaswell,permitsonetoinvoketherulesastosecondary evidence inorder to establish hisregistered titleovera particular plot of property once theabsence of the primarysourcehas been 20 satisfactorily explained. This course was the one open to and indeed followed bythe partiestothese proceedings. The respondent claimed tobethe registered ownerofplot312 and aLandOfficer Chr.Parpottascarriedoutalocalinquiryinthe presence of the parties or their representative, and a certain 25 SoterisZachariou,anAssistantForestOfficer andprepared aplan whichwasproduced asExhibit1.Thisplanisareproduction ofthe planinuseonScale 1X2,500.He found thatthedisputed portion iscovered byplot312.Intheplan inquestionthereappearstobe a line from west to east cutting through plot 312 separating the 30 portion occupied by the appellant with the rest of the said plot. Thislinewastheboundary linethatappeared intherecordsofthe Forest Department of 1912,Exhibit4,delineatingthe boundaries oftheaforementioned forest. Ifone looksattheplan,Exhibit4,the boundaries of the said Forest as theywere marked in 1912 were 35 drawn in such a straight line all around that one cannot help thinkingthattheselinesweredrawninadraftsman'sofficeandnot inrelationtotheirregularshapesthataforest ofthatextentwould naturallyhave,particularlysowhenitcomestodividingorcutting off bitsandpiecesfrom surveyed plotsof landasplot312and the 40 restoftheplotsabuttingthesaid boundary lineare. 61 A.Lotzou,J. Fanaylv.Zoavaiil U$*7) On this point, the said witness said that as regards forest boundary lines, the Forest Department, as a matter of practice, does not follow the detailsand the protrusions of private lands abutting the forest but draws a straight line which does not represent withaccuracytheextentoftheforest. Healsosaidthat 5 he found that hismeasurements inrelation totheLandRegistry Office Surveyplanstallywiththose ofthe Forest Departmentas evidencedbyanumberofboundarymarksplaced inthearea. Itappears,however,thatwhateverthepostionswasin1912,in 1940, the Forest Department prepared and marked on Survey 10 plansidenticaltothoseinusein1912theboundarylineofthesaid Forestfollowingthedetailsasregardsboundariesinrelationtothe boundariesoftheadjacent privatelyownedplotsoflandmoving moreorlessinazig-zagmanneranditisthisplanof1940,Exhibit 3,thatistakentodaybythesaidDepartmentintoconsiderationIn 15 delineating the Forest land of the Republic. In that way and following the said zig-zag boundary line the disputed portion clearlyfallswithinplot312andoutsidetheforestland. Alsoontheplansof 1940,Exhibit3,thereisclearlydelineated andcolouredyellowtheextentofthelandleasedtotheappellant 20 by the Forest Department which does not include the disputed portion. ThelearnedtrialJudgeaftersumminguptheevidenceadduced andhighlightingthesignificantaspectofit,said:«....the inevitable conclusion that the disputed portion 25 whichwaspossessedbythedefendantispartofplot312.The existenceofthestraightlinewhichgoesthroughtheproperty and the reference totheplans of 1912,cannot weaken the positive and clear evidence of the appropriate Lands RegistryOfficer whohadtheoccasiontointerprettheplans, 30 andalsotofixonthegroundtheboundariesofplot312inthe context of the local inquiry which he carried out for the purposesofthepresentcase.IfeelthatIcansafelyrelyonthe evidenceofChr.Parpotta.» He then went on to say that the evidence of Yiamaki and 35 Senjhiouaccordingtowhich,since1940untilto-dayonthebasis oftheplansinusebytheForestDepartment,thesubjectproperty 62 1C.L.R. Panaylv.Zouvanl A.Lolzon, J. isnotconsideredforestlandcannotleadtoadifferentconclusion. Hethenwentontosay:«Consequentlyitcannotbeaccidentalthe fact that the sa^ie Forest Department when ceding to the defendanttherightofuseofpartoftheForestfollowedasalready 5 mentioned, the boundaries of plot 312 as fixed by the Lands officer.» ThelearnedtrialJudgewasnotsatisfied thatin1912the situationwasdifferent, andthatindependentlyofthefactthateven ifhehadreachedthecontraryconclusionthatwouldnotaffecthis aforesaid finding. He also noted that even the defendant inhis 10 defenceinvokedtheSurveyplansinuseandheremindedhimself thattheplansof1912didnotdifferfromthepresentones,theonly difference beingthelinedrawnbytheForestDepartmentandthat even then beyond that line there existed the zig-zag line of the boundariesoftheprivatelyownedland. 15 ThelearnedtrialJudgeconcludedhiselaboratejudgmentwith thefollowing:«InthepresentcaseIconcludethatthereissufficient evidence establishingthattheplaintiff istheregistered ownerof plot312,theevidence oftheplaintiff regardingtheacquisitionof the ownership of the property, the evidence of her husband 20 regarding the existence of a certificate of registration for this property which, however, was left behind in Famagusta, the evidence for the possession as owners of the south part of the nrnpprh» sinrp ahntit tu/p'nty years without any auestioning of the rights oftheplaintiff byanybody,theclaimofthenorthpartofthe 25 propertywhichwasoccupiedbythefatherofthedefendantaspart of plot 312 which wasmanifested by a local inquiry whichwas carried out before the Turkish invasion when the Lands Office could ascertain who was the registered owner, the declaration regardingtheownershipofthepropertytotheLandsOffice after 30 the invasion and the nonsubmission of a corresponding declarationbyanybodyelse,inmyviewsubstitutestheweakness of the Lands Office to refer to the contents of its books and establish for the purposes of this action that the plaintiff isthe ownerofplot312.» 35 Learnedcounselfortheappellantveryfairlystatedthathiscase stands or falls depending on whether the disputed portion is coveredbytheregistrationoftheplaintiff ornot,andthathedoes notclaimthatpartasbelongingtotheappellantbutthathemerely assertsthatitdoesnotbelongtotherespondent. 63 A.Lolzou,J. Panayiv.Zouvanl
(1987)He based his argument in support of his contention that the disputed portion is not covered by the registration of the respondent, mainly to the fact that the extent of the property claimed byher issmallerthan that of the twopiecesput together. That the respondent descnbed her property asbeingof an extent 5 ofone donum and one evlek, whereasthe disputed portion being ofan extent of one donum and 700sq. feet raises the whole lotto about 2 1/2 donums.Onthispointthereisampleevidence thatas regards the extent of plots they are not accurately given in old registrations. 10 On the totality ofthe circumstances before usand inthe lightof the findings of fact made by the learned trial Judge and the conclusions drawn thereon, I am satisfied that the respondents proved their case in accordance with the standard required in a civil case, there being nothing to contradict their version that the 15 whole oi plot 312 was covered by their registration and without excluding the disputed portion over which none could have a title either registered or prescriptive as itshould not be forgotten that the appellant could not have acquired through oral transfer any prescriptive right that his father might have acquired before 20 the appellant took over. (See Papaloizou v. Themistocleous, 22 C.L.R.177; Rodothea Papageorghiou v. Anton! Sawa Komodromou
(1963)2 C.L.R. 221.) For all the above reasonsthisappeal should be dismissed with costs. DEMETRIADES, J.: I have had the advantage of reading the judgment of my brother Judge Loizou and Ifully agree with the reasoning given and the result reached. KOURRIS,J.:Thisisan appeal againstthejudgment ofaJudge of the District Court of Famagusta by which he found that the 30 respondent was the registered owner of PlotNo.312, Sh. Pi.42/ 12inthe area of SoteravillageintheDistrictof Famagusta and he issued an injunction restrainingtheappellant from interfering with the disputed portion of land as forming part of thesaid plot. The respondent by her Statement of Claim alleged that she is 35 registered owner of Plot 312, Sh. PI.42/12 inthe area of Sotera villageofanareaofonedonnum andoneevlekandsheprayed for an injunction restraining the appellant from interfering with the said plot. 64 25 1 C.L.R. Panaylv.Zouvanl KourrisJ· The appellant by paragraph
(5)of his Statement of Defence makes a vague assertion that the disputed portion is part of the Aylos Nikandros State Forest but his main allegation is that the disputedportiondoesnotformpartofthecertificateof registration 5 ofthe respondent. The learned trialJudge concluded that the disputed portion of land forms part of the certificate of registration of the respondent andthesoleissuearguedbefore usisagainsttheconclusion ofthe learnedtrialJudgethatthedisputedportionofwhichthe appellant 10 wasinpossession, wascovered bythe certificate of registrationof the respondent. Thefacts asthey emerge from thejudgment of thelearned trial Judge,shortly, are as follows:Theplotinquestionadjoins theState ForestofAyiosNikandros 15 in the area of Sotera village. The disputed portion is separated from the rest of plot 312 by a straight line of old cypress trees planted years ago, presumably in 1926. The northern part was cultivated by the father of the appellant since 1947 when partof Ayios Nikandros Forest was leased to him. As from 1976 it is 20 cultivated by th<> appellant. The southern part of the plot was possessed by the brother of the respondent when in 1968 he exchanged it with another piece of land belonging to his sister, whoistheappellant inthepresentcase,and itiscultivatedbyher husband eversince. 21 " The"dispute arose before the-Turkish invasion of Cyprusandaccordingto theStatement of Defence, thisdisputewassettledin an action before the DistrictCourt of Famagusta in 1969 but, the appellant abandoned this assertion during the hearing of the case. It should be noted that there is no counterclaim. The 3 appellant does not claim that he is entitled to be registered as ownerofthedisputedportionbyadversepossessionorotherwise. He merely challenged the respondent to the strict proof of her claim. Plot312isshowninthesurveyplans,exhibits3and4,andthere 35 isno doubt thatthe disputedportion forms part ofplot312 andit isnotclaimed bythe Forest Department. Therespondent inherStatement ofClaimallegedthatthe area 65 KouirisJ. Panayi v.Zouvanl
(1987)ofplot312isonedonnum andone evlek.Also,thehusbandofthe respondent, whenhegaveevidencebeforethetrialCourt,hesaid thathesawthecertificate ofregistrationatFamagustaandthatthe area of plot 312 was stated therein asone donum and one evlek. The certificate of registration was left behind in the town of 5 Famagusta which is now occupied by the Turkish forces. The respondent and her husband were residentsof the townand they fled away when the Turkish forces wereadvancingtooccupy the town. Inview of the fact that Famagusta town isstill occupied by theTurkishforcestherecordsoftheDistrictLandsOffice couldnot 10 be produced in evidence before the trial Court and the plaintiff had to prove that the disputed portion was covered by her certificate of registration byoral evidence. There wasinevidence before the DistrictCourtthattheareaof plot312 wasabout twoandahalf donumsand thatthepartofthe 15 plot occupied by the respondent was one donum and one evlek;so,thedisputedportion occupied bytheappellantwasalso about half the area of plot312. The learned trialJudge, when dealingwiththeevidence before him, he reached the conclusion that the disputed portion which 20 was occupied by the appellant was covered by the certificate of registration of the respondent. Inreaching thisconclusion he had taken into consideration the evidence before him as well as the factthatthe respondent after theTurkishinvasionshesubmitteda declaration to the Lands Office, on the invitation of the 25 Authorities,thatshe isthe ownerofplot312andhealsotookinto consideration the non submission of a corresponding declaration byanybody else. Learned counsel for the appellant very fairly stated that the appellant'scasestandsorfallsdepending onwhetherthedisputed 30 portion iscovered bythecertificate ofregistrationoftheplaintiff or notand hesubmittedthattherespondentfailed toproveherclaim onthebalance of probabilities.Hebased hisargumentin support of hissubmission that the disputed portion isnot covered by the certificate ofregistration oftherespondent, mainlyonthefactthat 35 theareaofthepropertyclaimedbytherespondentisone·donum andoneevlekwhereastheareaofplot312,asshowninthesurvey plans, is about two and a half donums. On this point there is evidence that thearea of plotsof landarenot accuratelystated in oldregistrations. 40 66 1C.L.R. Panayiv.Zouvanl KounrlaJ. In reviewing decisions based on inferences from facts not in controversy,theAppellateCourtisinasgoodapositionasatrial Court to evaluate such facts as no question of credibility arises (See The Cyprus AsbestosMines Limited v. Theocharis Loizou 5 Skoufarisandanother, 1964C.L.R.6atp.12). Inthepresentcasetheproperinferencetobedrawnisthatthe registrationisnotoldbecausethesaidplotwastransferred inthe respondent's name in 1968 by way of exchange with another property. If we presume that the registration is old, then, one 10 shouldexpectthattheactualareaofaplotshouldbemoreorless theareastatedinthecertificateofregistration.Iamoftheviewthat acertificateofregistrationcouldnotstatetheareaasbeinghalfof theactualareaoftheplotasinthepresentcase.Further,thefact that the learned trial Judge took into consideration that the 15 respondent declared to the Lands Office, after the Turkish invasion,thatsheistheownerofplot312andthattherehasbeen no corresponding declaration by anybody else, does not carry weight,tomymind,becausetheappellantneverclaimedthathe waseithertheownerof(hedisputedportionorthathewasentitled 20 toberegisteredastheownerbywayofprescriptionorotherwise. Furthermore,theplaintiffdidnotexerciseanyactsofownershipin sometormoroiiieioverthedisputedportionofland.Shemerely asserts that the disputed portion is covered by her brother or father, whowerethepredecessorsintitledidnotbringtheirclaim 25 to the Court before the occupation of Famagusta town by the TurkishforceswhentherecordsoftheDistrictLandsOffice could bemadaavailableandthedisputecouldberesolvedsatisfactorily. Iwould conclude thatthe learned trial Judge went wrong in reachingthe conclusion,onthetotalityoftheevidenceasfound 30 byhim, that the respondentproved herclaim.Myconclusionis that-therespondent failed to prove her caseon the balanceof probabilitiesbecauseofthegreatdifference oftheareaoftheplot andtheareastatedinthecertificate ofregistrationandherfailure toproveanyactsof ownershipinsomeform oranothersuchas 35 occupationandcultivationofthedisputedportion. FortheabovereasonsIwouldallowtheappealwithcostshere andintheCourtbelow. 67 KOUTTU J. Panayl v. Zoimuil
(1987)A. LOIZOU,J. Intheresult, the appeal isbymajority dismissed with costs. Appeal dismissed bymajority. 68