clr/1989/1989_1_359.pdf

(1989)Section 41 reads «(!) Any immovable property belonging or attached to a religious corporation at the date of the coming into operation ofthisLawwhichisnotalready registered initsname, and any immovable property which, though registered in the name of someperson, isheldfororonbehalf ofareligiouscorporationatthat 5 date, may be registered inthe name of such corporation, Provided that the corporation shall apply to the Distnct Lands Office notlaterthan eightyearsafter thatdate for theproperty to be so registered, and where the Director so requires shall pay the fees prescnbed for local inquiry 10

(2)After the expiration ofthe penod mentioned insub-section

(1)of this section no claim of title to or tn connection with any immovable property by and religious corporation shall be valid or shall be entertained or recognized m any Court or Distnct Lands Office unlessthe corporation files together with the wnt acertificate 15 of the Director that ithas applied to the Distnct Lands Office within the penod in sub-section

(1)of this section mentioned for the property to be registered in its name and, where the Director so required paid the fees prescnbed for local inquiry» It was not in dispute that the appellants had not submitted an 20 application as envisaged by section 41 within the penod therein prescnbed and that no certificate of the Director, as provided in subsection

(2),wasfiled together withthe action Counsel for the appellantssubmitted that (

1. a)Section'41 was not applicable because on 19 46 the land 25 neither«belonging to»or«attached»tothe appellants (
2. b)Secbon 41 does not apply to cases of claims by adverse possession, the Director of Lands and Surveys has no power to decide upon disputesemanating from adverse possession (c)Thedismissaloftheactionwaspremature ThetnalCourtought 30 tohaveheardevidence Perhaps,theevidencethatwouldhavebeen accepted as credible could lead tothe conclusion that the penod of prescnphon had not been completed by 19 1946 Held, dismissing the appeal (A)Per Koums, J ,SawidesJ concumng

(1)This appeal turns on the construction of Section 41 of Cap 224

(2)The legislator used the words «belonged and attached to»in view of the fact that undc• the Ottoman Land, Code, Article 122, 360 oc 1 C.L.R Mom Λ\. GeorghiouKontou ν Vontitsianou which applied toCyprus till 1stSeptember, 1946,amonastery which was an ecclesiastical corporation was unable toown any arazi-mine land because the ownership of such land could always revert tothe State 5

(3)The land inquestion was arazi,asitisdescnbed inthe pleading as (ξηρικόχωράφι».Itdidnotbelong orattachtotheappellants It is registered in the names of the respondents and there is no allegation that the latter held the property «for or on behalf of the appellants» 10

(4)Theobject of Section 41

(1)was tofinalize thenghtsorclaimsof ecclesiastical corporations over immovable property within acertain penod 15

(5)Theappellant's claimisthattheypossessedtheheldinquestion ab antiquo They ought tohave applied totheDirectorof Landsand Surveys for its registration in their name within the time limit prescnbed by section 41

(1)B)PerBoyadjis, J , Sawides, J concurnng 20

(1)Areligious Corporation isentitled,infact itisbound, to submit an application undersection 41

(1)for theregistration in itsnameof immovable property which on 1 9 46 — (a) though owned by thecorporation orthough itisattachedtoit ithad not,by thataforesaid date,been registered initsname,or (b)though registered inthenameofsome person, isheldfor oron behalf of the religious corporation 25 30 35

(2)Inthiscase the field was never «attached to» the appellants It was registered in the name of the respondents There is no suggestion that the latter ever held it «for or on account» of the appellants

(3)Can it be said that on 1 9 46 the land «belonged» to the appellants? Theclaim was based on adverse possession Section 10 of Cap 224 was invoked As it began before 1 9 46, all matters in respect of it are governed by the old Ottoman Law The land was arazimine Therefore, thepenod of prescnption was 10years It was obviously completed before 1 9 46 Even if the land was «makf», when the penod of prescnption was 15 years, again the penod was completed before 1 9 46 Therefore, itcannotbe asserted thatas on 1 9 46 thelandwas not«belonging to»the appellants A careful reading of section 41

(1), leaves no doubt that its main object was tocover cases where, onthedatethereinprescnbed, the 361 Mum Λ\ (>eorghiou Kontou \ Vontitsianou

(1989)religious coφorat]on was asserting, onanygroundwhatsoever, to be the owner of the immovable property in respect of which it was entitled to immediate registration which, however, had not already been effected for some reason orother

(4)Section41 provides that,unless thereligious corporationsavail themselves of its procedure within the time therein prescnbed, their existing nghts and claims over the immovable property in question are forfeited and lost for all practical purposes 5

(5)Issection 41 applicable tocases where theclaimfor registration 7 is based on adverse possession Theanswer isyes Thepower of the 10 Director toorder registration is discretionary Thelegislator used the word «may» The Director has no competence to adjudicate on conflicting claims Butsection 41 does notrequire himtoexceed his competence If the claim for registration is based on adverse possession, theDirector«may» proceedwith Registration,ifthereare 15 no nval claims If there are he simply issues the certificate that an application for registration was submitted intime

(6)Though the power underOrder27 Rule3 should be exercised onlyintheclearest of cases,itwillbe exercised ifthereisnochanceat all for theplaintiff tosucceed, inasmuchastoallowan action,insuch 2 0 circumstances,toproceed totrialwould be anabuse of the process of the Court

(7)The tnal Court was nght to rely on the appellant's pleaded version of the facts Appellant's argument as far as Order 27 Rule 3 was concerned, if accepted would render the provisions of Rule 3 nugatory In any event, if the penod of descnption had not been completedby 1 1 46, itwould have been interruptedas from 19 46 in virtueofsection 9of Cap 224 Insuch acasethelandcould notbe held tobelong totheappellants and, therefore,theirclaimin respect of its ownership could notpossibly succeed 25 30 C) Per Sawides J There is no doubt that the discretion of the Court under 0 27, r3 to dismiss an action should be exercised cautiously and after the Courtis satisfied beyond doubt thatthere is no reasonable cause ofaction Inthepresentcase theprovisions ofs 41 of Cap 224,areclearand 3 5 leave no room for any ambiguity or doubt for an interpretation contrary totheexpress provisions of enactment Appeal dismissedwithcosts Casesreferred to The Ayia Manna Church of Dhionos ν Hah! Agha and Another, 1 6 C L R 110, 362 40 1C.L.R. MoniAy.Oorghiou Kontou \. Vontitsianou Stokkos v.Solomi

(1956)21C.L.R. 209; Diplarosv. Nicola

(1974)1C.L.R. 198; Sawa v.Petrou

(1985)1C.L.R. 127; Agapiou v.Panayiotou

(1988)1C.L.R. 257; 5 The Inhabitantsofthe Village ofKarpashia v. The Church ofDiorios andAnother (197\)1 C.L.R.

1. Appeal. Appealbyplaintiffs againstthejudgmentoftheDistrictCourtof Larnaca (Papadopoulos, P.D.C.) dated the 17th January, 1987 10 (Action No.3219/85) wherebytheiraction against the defendants wasdismissed withoutbeingheardon itsmeritsinresponse tothe defendants' application under Order 27, rule 3 of the Civil Procedure Rules. G. Triantafyllides, for the appellants. 15 A.Markides,forthe respondents. Cur.adv. vult. SAWIDES,J.:Thefirstjudgment oftheCourtwillbedelivered by Mr.Justice Kourris and itwillbe followed bythejudgment ofMr. Justice Boyadjis and myself. KOURRIS J.: This is an appeal against the ruling of the Full •20 District Court of Larnaca whereby the action of the appellants/ plaintiffs against the respondents/defendants was dismissed without being heard on its merits under Order 27, rule 3 of the CivilProcedure Rules. Theappellantsare a«religiouscorporation» withinthe meaning 25 of Section 2ofthe Immovable Property (Tenure, Registration and Valuation) Law, Cap.
2. The appellants filed an action in the DistrictCourt ofLarnaca againsttherespondentswhereby, bythe generally indorsed writ claimed a declaration of the Court that they are entitled to be registered as the owners of a field of an 30 extent of about 14 donums in the area of Aradhippou village by virtue of adverse possession, and an order of the Court ordering the registration of the field intheir name. The respondents filed an application inthe action, under Order 27, rule3 oftheCivilProcedure Rules,askingfor thedismissalof 363 KourrisJ. Moni Ay. Georghiou Kontou v. Vontitsianou

(1989)the appellants' action on the ground that it was frivolous and vexatious in that the appellants failed to comply with the provisionsof Section 41

(1)and

(2)of Cap. 224. It is pertinent at this stage to set out the provisions of Section 41

(1)and

(2)which are asfollows:«

(1)Any immovable property belonging or attached to a religious corporation atthe date ofthe coming into operation of this Law which is not already registered in its name, and any immovable property which, though registered in the name of some person, isheld for or on behalf of a religious 10 corporation at that date, may be registered in the name of such corporation. Provided that the corporation shall apply to the District Lands Office not later than eight years after that date for the property to be so registered, and. where the Director so 15 requires, shall pay the fees prescribed for local inquiry.

(2)After the expiration of the period mentioned in subsection

(1)of this section no claim of title to or in connection with any immovable property by any religious corporation shall be valid or shall be entertained or recognized in any 20 Court or District Lands Office unless the corporation files together with the writ a certificate of the Director that it has applied to the District Lands Office within the period in subsection

(1)of this section mentioned for the property to be registered in its name and, where the Director so required, 25 paid the fees prescribed for localinquiry». The Court ruled that Section 41 of Cap.224 was applicable to the facts disclosed on the appellants' pleadings - who after the filing of the application by the respondents they filed their statement of claim - and that their failure to comply with its 30 provisionswasfatalfortheirclaimandconsequentlydismissedthe action. The appellants appealed against the ruling of the Trial Court alleging that the Court went wrong that the provisions of Section 41 of Cap. 224 were applicable to the circumstances of the case 35 and that the stage of the proceedings at which the Court reached itsdecision was premature. Itisnot in dispute that the appellants did not apply at allto the District Lands Office under Section 41

(1)of the Law for the 364 5 1C.L.R. Mom Ay deorghiou Kontou v. Vontilsianou KourrisJ. registration in their name of the fields and it is not in dispute that the appellants have not hied with the wnt of summons the certificate of the Director of Lands and Surveys enjoined by Section 41

(2)of the Law 5 Counsel for the applicant argued thatthe appellants' claim did not come under Section 41

(1)of the Law because on 1st September, 1946, when the Immovable Property (Tenure, Registration andValuation) Law, now Cap 224, was enactedthe disputed field was neither «belonging to» nor «attached to-*the 10 appellants, as expresslyrequired inSection 41

(1)of the Law He further argued thatSection41 doesnotapply tocases where registration of the immovable property is sought by the religious corporations on the ground of adverse possession in that the Director of Lands and Surveys has no power to decide upon an 15 application of such nature Thisappeal turnsontheconstructionof Section41 of Cap 224, UnderSection41

(1)of theLaw areligious corporationisboundto apply totheDistnctLandsOffice for theregistration initsnameof immovable property which at the prescnbed date, ιe on 1st 20 September, 1946, eitheritbelonged to, orattachedtoa religious corporation, or was held for or on behalf of a religious corporation. By theproviso the corporation oughttoapply tothe Distnct Lands Office within eight years from the prescnbed date for the property tobe so registered The legislator used the words 25 «belonged and attached to» in view of the fact that under the Ottoman Land Code,Article 122, which applied toCyprus till 1st September, 1946, a monastery which was an ecclesiastical corporation was unable to own any arazi-mine land because the ownership of such land could always revert to the State An 30 ecclesiastical corporation could not claim the ownership of it unless they produced evidence that the annexation of it to their church was recorded inthe ImpenalArchives atConstantinople It appears from the judgment of The Ayia Manna Church of Dhionos ν Ibrahim HahlAgha and Another C L R,Volume 16, 35 page 110, that an ecclesiastical corporation was incapable of owning landbutlandcouldbeheldby theStatefor itsbenefit, that istosay, thatland registered intheArchives And, underthe Titles Registration Law, 1885, later 1907, property of a class the corporation may own could be held for them by trustees 365 k o u r m J. MomΛ>.Georghiou Konlou v. Vontilsianou

(1989)ί propose to set out a long passage from the judgment of The Ayia Manna Church of Dhionos (supra) from the judgment of Gnffith Williams, J ,atpages 120-122, which isvery enlightening on the subject «Now the land law of Cyprus is theOttomanLandCode as 5 vaned by laws passed since the Bntish Occupation The fundamental principle of thislaw seems tohave been thatthe ownership of all land was in thv btate, and that the state allowed the surface of this land to become the property of individuals but tobe inalienable trom them without consentof 10 thestate - for which afine orpayment mustbemade to officers of the Government Should the owner die without heirs, the property would revert to the state and be legranted to the further profit of thestate Thisprinciple of ultimate ownership of land by the State provided wisely and effectively against 15 land getting into the dead hand of any corporation with perpetual succession, and as regards ownership of land such corporations do not seem to have been recognized In the archives at Istambu! certain lands were registered as belonging to certain monastenes and other buildings, but 20 these land1; were rather reserved by the Government for the use and enjoyment of the dwellers in such buildings, than property under the owneiship or at the disposition of any corporation housed in such buildings The corporation whether ecclesiastical orMohammedan did nothold by deed 25 and could notdispose oi such property The only article of the Land Code dealing specif cally with the rights of monastenes - which may be taken tobe the same for any ecclesiastical corporation -is No 122 According to Fisher's version the translation of this article is as follows 30 'Landattachedabantiquotoamonasteryassuchinthe Imperial archives (Defter Khane) cannotbe held by titledeed, it can neither be sold nor bought But if land after having been held ab antiquoby title-deed has afterwards passed by some means intothe hands of monks, or is in 35 fact heldwithout htledeed,asappurtenanttoa monastery the procedure as to state land shall be applied to it,and possession of it shall be given by tittle-deed as previously' 366 1C.L.R. 5 10 15 20 25 30 35 40 Mom Aj. CiMirghiou Konlou \ Vontitsianou Kourns J. Here it is recognized that certain land which from time immemonal had been annexed toa monastery and of which the annexation had been registered in the Impenal archives could notbe held by deed and could notbe bought and sold That is tosay, thiskind of land is inalienable since itisheld by the state for the use of the monastery in perpetuity Thenthe articlegoesontodealwithlandheldby deed (tapu)of thekind of land that can be sold and bought and to which the title is transferable, it says 'This land which was onginally held by tapu has fallen intohands of monks and held without tapu as annexed to a monastery shall be treated as other state land and shall as before be madetobe held by tapu 'The purpose of the latter part of this article was clearly to keep fluid the ownership of state land and prevent it passing out of the controlof thestate Ithadthesame object ashadtheStatuteof Mortmain in Plantagenet England Underthe OttomanCode a monastery orbody of monkswas incapable of owning land, but land could be held by thestate for itsbenefit, thatistosay that land registered in the archives, and under the Titles Registration Law, 1885 (now 1907) property of a class the corporation may own can be held for them by a trustee But the question of whether or not an ecclesiastical corporation can own Arazi-Mine landinitsown nameorinthe name of a trustee has already been decided for Cyprus inthe case of Sophronios Egoumenos of Kykko Monastery ν The Pnncipal Forest Officer (CLR , Vol 1 ρ 111) In an able judgment in that case the whole position of the law as tothe holding of landby oronbehalf ofecclesiastical corporationsis reviewed, and in itthe Courtgives itsversion of the meaning of Article 122 Itisas follows 'As we understandthisarticle,itmeans thatthelaw willnot recognize theannexation of any Statelandtoamonastery, as monastery property, unless its annexation is recorded in the Impenal archives, and that where the nght to possession of State lands hasbeen granted toindividuals, and any ownerof it has purported todedicate ittopious uses, thededication is in the eye of the law inoperative, and the nght to possession remains vested in the person who so puported todedicate it. and descends tohisheirsonhis death Such nghtcouldnotbe handedover by himtoany grantee,without thepermission of 367 KourrisJ. MoniAy. Georghiou Kontouv. Vontitsianou

(1989)the competent authority (Article 36), and must either remain vested in him or hisheirsorrevert tothe State'. AfterthisthejudgmentwentontoanalysetheTurkish Land Law and to show that the main object throughout is the safeguarding ofthereversionaryrightsoftheState.Hence the Court decided that ownership of Arazi-Mirie land in a monastery willnot be recognized bylaw. 5 Ido not think Icould improve on or add to the very clear and comprehensive exposition of the law contained in that judgment, and can only say that I find myself in complete agreement with it.Theposition now isquite unchanged from 10 the time when that case was decided. There is no means by which ecclesiastical corporations can hold Arazi-Mirie land save by virtue of the Ecclesiastical Properties Law, 1935, which protects the possession of ecclesiastical corporations who were in actual possession of land for ten years prior to 15

1. And there is no means by which they can lawfully acquire landofthiscategory.IfatrusteeownsArazi-Mirieland he mayhold itduringhislifetime astrusteeforthechurch;but on hisdeath itpasses tohisdescendants freed from the trust, and is not transferable to another trustee under the 20 Immovable Property Registration and Valuation Law,
2. The effect of section 12 of this Law (then section 12 of the Titles Registration Law, 1885) isconsidered at length in the Kykko Monastery case I have referred to.» Inthecaseinhand,thefieldclaimedbytheappellantsisofarazi- 25 mine category and itdid notbelong orattach tothem. Itwas and, stillisregistered inthejoint namesofthe respondents and thereis no allegation that itwas held for oron behalf of the appellants at the prescribed date, i.e. on 1stSeptember,
3. Ithinkthattheobject ofSection41

(1)wastofinalizetherightsor 30 claims of ecclesiastical corporations over immovable property within acertain period. Thisisapparent from the factthatthe time limit originally was five years and it was later extended to eight years by virtue of Law 8/53. Its main object was to cover cases where at the prescribed date, the religious corporation was 35 asserting that it was entitled to be registered as the owner of the immovable property. Inthe present case the appellants' claim isthat they possessed the field in question ab antiquo, «or from a time, whereof the 368 I C.L.R. Moni Ay.Georghinu Konlou v. Vontitsianou Kourris J . memory of man runneth not to the contrary». And they ought to have applied to the Director of Lands and Surveys for its registration in their name within the time limit prescribed by Section 41

(1). 5 For the above reasons Iam of the view that the provisions of Section 41 of Cap.224areapplicable tothecircumstances ofthe present case and I am also satisfied that the stage of the proceedings at which theTrialCourt reached itsdecision wasnot premature and their failure toapply to the Director of Lands and 10 Surveys for registration of the field in their name within the time limitprescribed bySection 41

(1)wasfatal totheirclaim. The appeal is therefore dismissed with costs against the appellants. BOYADJISJ.:Thisappealisdirectedagainstthedecision ofthe 15 FullDistrictCourtofLarnaca wherebytheclaimofthe appellantsplaintiffs inthe action below,againstthe respondents-defendants therein, was dismissed without being heard on its merits, in response to the respondents' application under 0.27, r.3,of the Civil Procedure Rules. 20 The salient facts are in short these: The appellants are «a religious corporation» within the meaning of section 2 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224.On 12th December, 1985,the appellantsfiled with the District Court of Larnaca Action No. 3219/85 against the 25 respondents. Inthe generally indorsed writissued inthe aforesaid action, the appellants claimed against the respondents: (A) A declaration of the Court that they are entitled to be registeredastheabsoluteandsoleownersofafieldofanextentof about 14 donums, described therein, situate within Aradippou 30 village, by virtue of their undisputed and uninterrupted adverse possession thereof fora period exceeding fifty years, and (B) An order of the Court ordering the registration of the aforesaid field intheir name on thesame aforesaid ground. Itiscommon ground that: 35 (i)Theappellantsdidnot everapply tothe DistrictLands Office under section 41

(1)of the Law, Cap. 224, for the registration in their name ofthe field, thesubject-matter oftheir aforementioned action; and 369 BoyadjisJ. MoniAy. (Jeorghiou Kimlou v.Vontitsianou

(1989)(ii) The appellants have not filed together with the writ of summons the certificate of the Director of Lands and Surveys envisaged by section 41

(2)of the Law, Cap. 224. On the 9th April, 1986, the respondents filed an application in the action, under 0.27, r.3,of the CivilProcedure Rules, praying 5 for the dismissal of the appellants' action against them, on the ground that it is frivolous and vexatious, in as much as the appellants had admittedly failed to comply with the aforementioned provisionsofsub-sections

(1)and

(2)ofsection 41 ofCap.224.The appellantsopposed theapplication andbefore it 10 was heard, they filed with the Court's Registry their Statement of Claim on 30th April, 1986,where they alleged that— (a) the disputed field is registered in the joint names of the defendants by virtue of registration No. 111124 dated 18th February, 1924,based onthesurvey map,covering 12/16shares 15 therein and by an old registration under No. 4664 dated 20th March, 1906, covering the remaining 4/16 shares; and (b)from timeimmemorialand inanycasebefore theyear 1930, the whole of the aforesaid field was,within the knowledge of the respondents, under the undisputed and uninterrupted adverse 20 possession of the appellants, their servants or agents until about 1978, and thereafter the appellants continued to cultivate it until the date of the filing of theirstatement ofclaim. The hearing of the respondents' application wasconcluded on 17th December,

1. By its reserved ruling delivered on 17th January. 1987, the Court ruled that section 41 of Cap. 224 was applicable to the facts disclosed ontheappellants' pleadings,that their failure to comply withitsprovisions was fatal for their claim and,consequently, made anorder dismissingtheaction asprayed bythe respondents. 25 30 Theappellantsnowappealagainstthewholeofthejudgmentof thetrial Court on the following four grounds: 1.The ruling of the trialCourt that the action wasfrivolous and vexatiouswaswrong.
2. The stage of the proceedings at which the Court reached its decision was premature.
3. The Court was wrong in ruling that the provisions of section 41 of Cap. 224 are applicable tothe circumstancesofthe present case. 370 35 1C.L.R. MoniAy. Oorghiou Kontou v.Vontitsianou BoyadjisJ. 4.The Court wrongly decided todismissthe action with costs. In presenting his case before us, learned counsel for the appellants first dealt with grounds 1, 3 and 4 which he argued togetherand hethen dealtwithandarguedground4ofhisappeal. 5 It is, in the circumstances, convenient to examine the aforesaid grounds inthesame manner and order. Grounds 1,3and 4 Counsel's arguments under these grounds center round his submission that the provisions of section 41 of Cap. 224 are not 10 applicable to the circumstances of the present case for the following two distinct reasons: (A) On 1st September, 1946, when the Immovable Property (Tenure, Registration and Valuation) Law, now Cap. 224, came into operation, the disputed field was neither «belonging to» nor 15 «attached to»the appellants, as expressly required in sub-section

(1)of section 41 of the Law. (B) Section 41 does not and was never intended to apply to cases where registration of the immovable property issought by the religious corporation on the ground ofadverse possession, in 20 as much as the Director of Lands and Surveys has no power to decide upon an application of such a nature and, therefore, no useful purpose would be served if the appellants had submitted the application envisaged by section 41

(1)of the Law. The Director would have refused, counsel added, to examine such 25 application and he would have toldthe appellants toapply to the .Court. Weshallexaminethetworeasonsadvancedbytheappellantsin support of their submission that section 41 has no application to the present case, intheir aforesaid order. 30 35 Reason (A) should be examined with reference to the words employed insubsection

(1)of section 41which readsas follows: «41

(1)Anyimmovable propertybelonging orattached toa religiouscorporation atthe date ofthe coming into operation ofthisLawwhichisnotalreadyregisteredinitsname,andany immovable property which, though registered inthe nameof someperson, isheldfororonbehalf ofareligiouscorporation at that date, may be registered in the name of such corporation: 371 BoyadjisJ. Moni Ay. Ουπ-Ιΰοιι Konlmi \. Vonlitsianou

(1989)Provided that the corporation shall apply to the District Lands Office not later than eight years after that date for the property to be so registered, and, where the Director so requires, shall pay the fees prescribed for local inquiry». From the above words of the subsection it follows that, unless 5 the property sought to be registered in the name of the religious corporationpursuanttotheapplication envisagedby the aforesaid subsection, consists of immovable property belonging orattached tothe religious corporationof theprescribed date,thecorporation is neither entitled nor bound toavail itself of the provisions of the 10 sub-section by submitting an application to the District Lands Office for the property's registration in their name Strange as itmight seem, intheireffort toavoid theoperation of the above statutory provision, the appellants have argued thaton the prescribed date, i.e. on 1st September, 1946, the property 15 which they claim in the present action was not property «belonging or attached to» them. The very fact, their counsel argued, that a religious corporation submits an application under section 41

(1)for the registration of immovable property in their name, on the ground of adverse possession, is tantamount to 20 admitting that the property does not belong to them. This admission emanates tacitly but inevitably, counsel added, from the very fact of the submission by the corporation of their application inwhich theysuggestthattheyhave exercised over the property adverse possession for many years and is, therefore, 25 entitled to be considered as owner thereof. We do not agree that the submission of an application under section 41

(1)gives rise to the tacit admission or innuendo suggested by leamod counsel for the appellants. Under subsection

(1)of section 41 of Cap. 224, properly construed, a religious corporation is entitled, in fact itis bound to submit an application to the District Lands Office for the registration in its name of immovable property which at the prescribed date, i e. on 1st September, 1946— 30 (a)though owned by the corporation orthough itis attached to it, ithad not,by thataforesaid date,been registered initsname;or 35 (b)though registered inthename of some person, isheld for or on behalf of the religious corporation. 372 1 C.L.R. Mom Αν Georghiou Konlou v, \ontitsianou Boyadjis J. In the case in hand, the field claimed by the appellants was never attached to them It was and still is registered in the joint names of the respondents but there is no suggestion that it was ever held by themfor oronaccountof theappellants Yet, learned 5 counsel for the respondents argued that the present case falls squarely within thesubsection, since— (i)attheprescnbed date ontheappellants' pleaded version, the property was owned by them,and (u)because by that same date it was not already registered in 10 theirname The latter reason put forward by the respondents is admitted What isindispute iswhether itmay besaid thaton 1st September, 1946, the property was owned by the appellants, or to be more exact, the property belonged to the appellants as required by the 15 express words of the sub-section Counsel for theappellants made itclear thattheirclaim is based on section 10 of Cap 224 which reads as follows 20 «10 Subject totheprovisions ofsection 9of thisLaw. proof of undisputed and uninterrupted adverse possession by a person, or by those under whom he claims of immovable property for the full period of thirty years, shall entitle such person tobe deemed tobe theowner of such property andto have thesame registered in his name 30 Provided that nothing in this section contained shall affect the period of prescription with regard to any immovable property which began to be adversely possessed before the commencement of this Law, and all matters relating to prescnption dunngsuch penodshall continuetobe governed by the provisions of the enactments repealed by this Law relating toprescnption,as ifthisLaw had notbeen passed 35 Provided further that notwithstanding the existence of any disability operating under such enactments to extend the penod ofprescnptionsuch periodshall notinanycase exceed thirtyyears inalleven where anysuch disability maycontinue tosubsistsatthe expiration of thirtyyears» 25 Since, on the appellants' own pleaded version, the disputed field began to be adversely possessed by them before 1st September, 1946, the perod of prescnption and all matters 373 BoyadjisJ. Moni Ay. GeorghiouKontou v. Vontitsianou

(1989)relating to prescnption during the penod that preceded the aforesaid date, are exclusively governed by the provisions of the Ottoman enactmentswhich were repealed by theLaw, Cap 224 This is clear from the first proviso to section 10 (supra) as interpreted and applied by this Court and by itspredecessor, the 5 High Court of Cyprus, in several cases including 1) Chnstos Hjt Loizou Stokkas ν Chnstma Argyrou Solomi

(1956)21 C L R 209, 2) Chnstofis YianniDiplaros ν FotouNicola

(1974)1C L R 198, 3)MaroulaSawa ν Sawas Petrou

(1985)1C L R 127,and 4) Yiannakis Agapiou ν AnnettaPanayiotou,

(1988)1C LR 257 10 In all cases it was stressed that section 10 of Cap 224 has no retrospective effect The Ottomanenactmentsrepealed by theImmovable Property (Tenure Registration and Valuation) Law, Cap 224, which contain provisions relating to prescription are the Ottoman Land 15 Code and the Civil Code, known as «Mejelle» Which of the two enactments governs the present case depends on the category of land towhich thedisputed property belonged undertheOttoman law It being a field, the property must belong to the category known as «arazi mine» for which the period of prescription laid 20 down in section 20 of the Ottoman Land Code was 10 years It follows that, since by 1930 the latest, always, according to the pleaded assertion of theappellants, theiradverse possession over the respondents' field had commenced and continuedever since uninterrupted and undisputed, the penod of prescnption was 25 completed well before section 10 of Cap 224 came into operation Even if, however, the respondents' field belonged to the category of landknown as «mulk», thepenodof prescnptionin respect thereof, set out inArt 16b0 of the Mejelle, was 15 years, ι e ithad again been completed pnortothetimewhen section 10 30 of Cap 224 came intooperation The effect of what we have stated hereinabove is that, on 1st September, 1946, the date mentioned in section 41

(1)of Cap 224, the appellants had acquired a prescriptive right over the respondents' field entitling them to be registered as absolute 35 owners thereof to the exclusion of the respondents Can,in these circumstances, be validly asserted by anyone, especially by the appellants themselves, that on the same aforesaid date, the field was not property «belonging to* them within the meaning of section 41

(1)of Cap 224?We thinkthatitcannotbe so asserted A 40 careful reading of section 41

(1), leaves no doubt that its main 374 I C.L.R. Moni Ay. Georghiou Konlou v. Vontitsianou BoyadjisJ. object was to cover cases where, on the date therein prescribed, the religious corporation was asserting, on any ground whatsoever,tobetheowneroftheimmovablepropertyinrespectofwhich itwasentitled to immediate registration which,however, had not alreadybeen effect for some reason or other. We would like to add that section 41 does not create any substantiverightinfavour of the religiouscorporation nor doesit provide the meansorthe forum for propertydisputes. Itspurpose istowfold. First, byproviding an informal and quickprocedure, it 10 affords an opportunity to religious corporations to apply for the registrationintheir namesofimmovable propertyinthecasesand under the conditions set out therein. Secondly, it provides that, unless the religious corporations avail themselves of this procedure within the timetherein prescribed, their existingrights 15 and claimsoversuch immovable propetyareforfeited and lost for all practical purposes. Though the time period as originally prescribed wasfive yearsfrom the date when theLaw,Cap.224, came intooperation, itwaslaterextended toeightyearsbyvirtue of LawNo.8of 1953.Whatsocialorotherreasonsmotivated the 20 legislature to enact such a provision, is not our concern. The Court's task isto construe the enactment in accordance with the established principles of interpretation and to apply it to the circumstances intended tobe covered thereby. Inconclusion, having examined the first reason put forward by 25 theappellants insupport of theirsubmission that section 41 isnot applicable to the present case, namely, that the property did not belongtothem atthe prescnbed date, we rulethatsuch reason is unfounded andwerejectit.Wemightadd inthisrespectthatifwe weretouphold thisreasonandifweweretofindthat,onthe facts 30 astheythemselves plead them, they had not, on account of their adversepossession, become the «owners»ofthe disputed field by the prescribed date. i.e. 1.9.1946, within the meaning of section •2*oftheLaw,Cap.224,wefailtoseehowtheappellantscanever possiblysucceed'in theirclaimfor theregistration ofthisproperty 35 intheirname,inviewofthefactthat,byoperationofsection9**of Cap, 224, which has no retrospective effect, the period of * <2 'Owner'meansthepersonentitledtoberegisteredasownerofanyimmovable property whetherhe issoregisteredornot* ** -9 No titletoimmovable property shallbeacquiredbyadversepossession asagainstthe Republicoraregisteredowner· 375 Bo>adjisJ Mom A>. GeorghiouKontou\. Vontitsianou

(1989)prescription after ι 9 1946 isinterruptedinrespect ofthedisputed field as against therespondentswho were atall matenaltimesand they still are the registered owners thereof Thepossession of the field by the appellants after 1st September, 1946, however adverse i* might be does notcountand does notoperate so as to 5 create a prescriptive righttothefield inappellants' favour if such nghthad notmaturedandhad notbeen createdpriortothatdate We shall now proceed to examine the validity of the second reason put forward by learned counsel for the appellants against the applicability of section 41 to the present case, namely, that it 10 uas never intended to apply and cannotpossibly apply to cases 'vheie the religious corporation seeks registration in respect of •mmovrtble property on account of adverse possession Reliance by counsel is laid in this respect on the lack of competence on behalf of the Director of Lands and Surveys to decide on the 15 validity of conflicting claims regarding nghts in immovable pronerty a pnnciplewhich hasbeen enunciatedinthecase of The Inhabitants of the village of Karpashia, etc ν The Church of Dionosand Another {197\) 1C LR 411 According to counsel's submission, a claim for registration of immovable property on 20 account of adverse possession necessanly entails examination of and decision upon the validity of the conflicting claims to the prope.tyιaised by theclaimantontheonehandandthe registered owner of such propetry on the otherhand In the Karpashiacase (supra), the inhabitants of the village of 25 Karpashia andDionoslodged anappealagainst thedecisionof the Director of Lands and Surveys, affirmed on appeal by theDistrict Court, whereby he had acceeded toan application by the Church Committee ofAyia MannaChurchsubmitted tohimundersection 41 of Cap 224, and had decided to register in the aforesaid 30 religious corporation's name an area of land at Dionos village, despite theaforesaid inhabitants'objection who were claimingthe landby virtue ofprescnption TheDirector'sdecision was set aside by the Supreme Court Dealing with the merits of the appeal, Tnantafyllides, Ρ (as he then was) said the following at pp 414- 35 415 «Itistobe clearly understood from the contentsof theletter of the 19th April, 1969, that respondent No 2 reached his complained of decision after examination of the conflicting claims to the property concerned of respondent No 1 and 10 appellants No. 1 and that he decided, eventually, thai respondent No 1was entitled tosuch property 376 1C.LR. 5 10 Mom Ay (^eorghiou Kuntuu\ Vontitsianou BoyadjiSJ. It has not been senously disputed, during the hearing before us, that it is not within the competence of respondent No 2, under section 41

(1)to decide on the validity of conflicting claims regarding rights in respect of immovable property, that being so we are of the view that the parties to these proceedings should have been given full opportunityof vindicating theirlegal nghts in a Court for example by acivil action for a declaration as to title or otherwise, with all the safeguards as to proof and admissibi'ity of evidence (Siv Hassidoffv Santi and Others,

(1970)1C LR 220)» Inordertoavoid any possible confusion inthe mindof a careful readei of the judgment in the above case we would like to add thattheDirector'ssubjudice «decision» was inanycase liable iobe set aside for the additional reason which had not been raised or 15 argued before the Court, namely, that the application by the Church Committee was filed some time in early 1968 and the Director communicated his decision thereon to the parties affected thereby by letter dated 19th Apnl, 1968. ιe about fourteen years after theeight years' period set outintheproviso to 20 section 41

(1)of Cap 224, had expired Be thatas itmay, itis relevant for thepresent submission of the appellants tonotethatintheKarpashia case (supra)theCourthad remarked that under section 41

(1)of Cap 224. the Director was empowered, but not bound, to grant the Church Committee's 25 application We agree with thisremark Thisflowsdirectly from the word «may» in the context of the phrase «any immovable property may be registered in the name of such corporation» employed in section 41

(1)of the Law The fact that the Director of Lands and Surveys lacks the 30 competence to adjudicate on the validity of conflicting claims regarding rights in immovable property is not a valid reason for asserting eitherthatsection 41 does notapply incases inwhichthe religious corporation relies on its alleged prescriptive nghts to support its application to the District Lands Office for the 35 regestrahon of theproperty undersechon 41,orthatthe religious corporation isexcused ontheaforesaid ground from submitting its application as required thereby Section 41 does notrequire the Director of Lands and Surveys or his subordinates to take any decision on the religious corporation's application in a way 40 exceeding itscompetence If,uponreceiving suchapplication,the Director is satisfied, after making reasonable enquines, thatthere are no claims to the property rival to those of the applicant 377 BoyadjisJ . Moni Ay. Georghiou Kontou *. Vontitsianou

(1989)corporation, he may proceed with the registration Ifhisenquiries reveal the existence of such claims,he shallactwithin the limitsof hiscompetence and hemayrefuse toaccedetotheapplication by registering the property In either case there will be compliance with all that section 41{1)requires the religious corporation todo and the Director is bound to issue his certificate under sechon 41

(2)certifying the fact ofthetimelysubmission ofthe application and nothing else The fact that the Director dismisses the application for anyreason,otherthanithasbeen filed outoftime, istotallyirrelevant 5 10 Inthe circumstances, wedismissthe second reason put forward bythe appellants against the applicability ofsection 41

(1)of Cap 224 to the facts of the present case, and we rule that they should have applied tothe DistnctLandsOffice notlater than eight years after the 1stSeptember, 1946, for the registration of respondents' 15 field intheir name The failure of the appellants to submit such an application as expressly required by section 41{1), has deprived the appellants from the Director's certificate envisaged in section 41

(2)of Cap 224 It is common ground that the appellants have not filed this 20 certificate together with thewnt ofsummons issued inthe present action The consequences of their failure to do so are expressed in the clearest terms in sub-section 2 of section 41 which reads as follows «41

(2)After the expiration of the penod mentioned in subsection

(1)of this section no claim of title to or in connection with any immovable property by any religious corporation shall be valid or shall be entertained or recognized in any Court or Distnct Lands Office unless the 30 corporation hies together with the wnt a certificate of the Director that ithas applied tothe Distnct Lands Office within the period in subsection

(1)of thissection mentioned for the property to be registered in itsname and, where the Director so required, paid the feesprescnbed for local inquiry 35 Provided that nothing in this subsection contained shall apply to any immovable property which isalready registered in the name of the religious corporation or which has been lawfully acquired by such corporation by transfer from a registered person after the commencement of thisLaw» 40 378 25 I C.L.R. Moni Ay. Georghiou Kontou v. Vontitsianou Boyadjis J. UnderOrder27,Rule3*ofthe CivilProcedure Rulesthe Court may order the action to be dismissed in case it isshown by the pleadingstobefrivolousorvexatiousortoorderthatanypleading bestruck outonthegroundthatitdisclosesnoreasonablecauseof 5 action. The power to dismiss an action summarily under the aforesaid rule isdiscretionary and though it should be exercised rarelyandonlyintheclearestofcases,itwillbeexercisedifthereis no chance atall for the plaintiff tosucceed, inasmuch asto allow an action, in such circumstances, to proceed to trial would be an 10 abuse oftheprocessof the Court.Appellants'learned counsel did notdisputethat,ifsection41ofCap.224isfound applicabletothe present case, the action isdoomed to fail. This isclear from the words«...noclaimoftitletoorinconnection with any immovable property by any religious corporation shall be valid or shall be 15 entertained or recognized in any Court or District Lands Office unless...» employed in section 41

(2)of Cap. 224 and the impossibility of the appellants to rely on their adverse possession overtherespondents' field after the 1stSeptember, 1946,inview oftheprovisionsofsection 9ofCap.224towhichwehave earlier 20 referred.Therefore, unlesstheappellantssucceed ontheirsecond ground of appeal which we shall next examine, this appeal must be dismissed. GroundNo.2 This ground of appeal refers to the appellants' allegation that 25 the ruling of the trial Court dismissing the action was premature. Theircounsel'ssubmission on thismatteristhatthetrialCourt has wrongly evaluated their claim on the basisofthe facts as pleaded by them. The Court should wait, counsel added, to hear what evidencetheywould adduceatthetrialand thenproceed tomake 30 its finding that, in the light of such evidence, they had already acquired a prescriptive right over the respondents' field entitling them toregistration thereof, atthetimewhen the Law,now Cap. 224, came into operation. Despite their pleaded allegations, counsel argued, there was always the possibility of adducing 35 credible evidence of their adverse possession for part only of the period mentioned in their pleadings, i.e. for the period " Order27, r3 «The Courtmay orderany pleadingto be struck out on theground thatit disclosesno reasonablecauseofacbonoranswer,andinanysuch caseorm caseof the actionordefence beingshown bythepleadingstobefnvolous orvexatious, theCourtmay ordertheactiontobestayedordismissed,orjudgment tobeenteredaccordinglyasmay be pjst· 379 Rojadjis J. MoniAy. Georghinu Kontou v. Vontitsianou

(1989)commencing, for instance, in 1940 or in 1945, inwhich case the minimum prescriptive period of ten or fifteen years would not have been completed before 1946 when section 41 of Cap. 224 came into force. Weate unable toagreewiththisargument forthefollowingtwo distinct reasons: 5 First, if we were to accept it. it would render the provision of Order 27. r.3.totallynugatory.Itisexpresslystatedin0.27,r.3that the power of the Court to dismiss summarily an action if it is satisfied that it is frivolous and vexatious is exercised with 10 reference to the plaintiff's own pleadingsand nottothe evidence to be adduced at the tnal. A party to an action is bound by its pleadings and we fail tounderstand theappellants' complaint that the trial Court had evaluated theirclaimactingon thebasisof the facts as they themselves had pleaded them. 15 Secondly, if at the trial the appellants fail to substantiate by credibleevidence thatbythe 1stSeptember, 1946,whentheLaw, now Cap. 224, had come into operation, they had already acquired a prescriptive right over the respondents' field, having completed a period of ten or fifteen years uninterrupted adverse 20 possession, depending onwhether the field wasofthe categoryof «arasi mirie»or «mulk»respectively, again theirclaiminthe action cannot possibly succeed, since under section 9 of Cap. 224 their adversepossession after thatdateisnottakenintoconsideration in the computation of the prescriptive period. 25 Forthe above reasonsground of appeal No.2also fails. Inconclusion, thejudgment ofthetrialCourtisaffirmed andthe appeal isdismissed withcostsagainstthe appellants. SAWIDES J.: Ihad theopportunity of readinginadvance both judgmentsjustdelivered bymylearned brotherJudgesKourris,J. 30 and Boyadjis, J., and Iagree withthem thatthisappealshould be dismissed. The trialCourt inresponse toanapplication ofthe respondents forthedismissalofCivilActionNo.3219/85broughtagainstthem bythe appellants whereby appellants claimed registration intheir 35 name by virtue of uninterrupted adverse possession for a period exceeding fifty years, ofa field standingregistered inthenameof therespondents,found thattheclaimwasuntenableinviewofthe provisions of section 41of Cap.224 and dismissed the action.In so acting the trial Court exercised the powers vested in itunder 40 380 1C.L.R. M o n i A y . Georghiou Kontou v. Vontitsianou SavwdesJ. Order 27 rule 3 of the Civil Procedure Rules which provides as follows: 5 «The Court mayorder anypleading tobe struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous and vexatious, the Court may order the action be stayed or dismissed, orjudgment to be entered accordingly as may be just.» 10 It is in the inherent jurisdiction of the Court to stay or dismiss actions and to strike out pleadings which are vexatious or frivolous, orinanywayanabuseoftheprocessoftheCourt, under which itcan deal withallthe casesincluded inOrder 27, r.3.The principal distinction between the inherent jurisdiction and that 15 under the above Rule seems to be that when the Court isacting under its inherent jurisdiction evidence by affidavit may be received to show thata pleading isan abuse of the process of the Court; whereas under r.3the nature of the action or the defect in pleading must appear bythe pleadingsorparticulars(see notesin 20 the English Annual Practice 1958 under the corresponding EnglishOrder25,rule4towhichreference ismadeinthe marginal notesof ourCivilProcedure Order 27, r.3.) Under the heading «Scope of thisRule»in the relevant notesin the English Annual Practice 1958at p.574 we read: 25 30 «Itisonlyinplainand obviouscasesthatrecourseshould be had to the summary process under this Rule (Mayor, etc. of ' theCity ofLondon v. Homer[19l4)lULJ.512CA.)...The powersconferred byr.4willonlybeexercised where the case isbeyond doubt.The Court must be satisfied that there isno reasonable cause of action or that the proceedings are frivolous as vexatious.» Thereisnodoubt thatthediscretion ofthe Court under0.27, r. 3 todismissan action should be exercisedcautiouslyand after the Court issatisfied beyond doubt that there isno reasonable cause 35 of action. In the present case the provisions of s. 41 of the Immovable Property (Tenure,Registration andValuation) Law,Cap.224that for the registration of immovable property belonging to or attached to a religious corporation at the time of the coming into 381 . SawidesJ. MomAy.Georghiou kontou v. Vontitsianou

(1989)operation of the Law (1stSeptember, 1946),which isnot already registered in its name, are clear and leave no room for any ambiguity or doubt for an interpretation contrary to the express provisions of the enactment Under the proviso to section 41

(1)the corporation shall apply 5 forsuchregistration totheDistnctLandsOffice notlaterthaneight yearsafter that date for thepropertytobesoregistered and under sub-section 2 of section 41 «after the expiration of the penod mentioned insub-section

(1)ofthissection noclaimoftitletoorin connection with any immovable property by any religious 10 corporation shall be validor shallbe entertained or recognized in any Court or Distnct LandsOffice » VeryrightlythetrialCourtcametotheconclusion andruledthat sechon 41 of Cap 224 wasapplicable tothefacts disclosed inthe pleadings of the appellantsand thattheir failure tocomplywith its 15 provisions was fatal to their claim and consequently properly exercised itsdiscretion underOrder27,r3 dismissingthe action I need not deal with the vanous grounds of appeal advanced and argued by leamed counsel for the appellants as they have already been dealt with bymyleamed brother Judge Boyadjis, in 20 hiselaborate judgment justdelivered which I adopt and endorse Ialsoagree with theconclusion reachedbymyleamed brother Judge Kourns, in his elaborate judgment delivered in this appeal that the object of s 41

(1)was to finalize the nghts or claims of ecclessiashcal corporations over immovable property within a 25 specified penod ongmally five years and later extended to eight years byvirtue of Law 8/53 Itisnot in dispute in thepresent case that the appellants never applied within the prescribed time under s41{1) of Cap 224 for theregistration mtheirname ofthefield inquestion noratthetime 30 ofthe filing of theaction were theyinpossession of any certificate from the Director that they had applied in time for registration, whichtheyhadtofiletogetherwiththewntundertheprovisionsof s 41

(2)ofCap 224,onceasinthepresentcaseregistrahonhad not already been effected intheir name 35 Intheresulttheappealfailsand isherebydismissedwithcostsagainst the appellants Appeal dismissed withcosts 382