[*311] 1986 January 31
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
Evridiki Marcou Kyriacou, as Administratrix of the estate of the deceased Marcos Kyriacou, late of Palechori,
PIaintiff,
v.
Kyriacos Lasettas,
Defendant.
(Action No. 3724/83).
Immovable property - Adverse possession - Evidence of - Law Applicable - Arazi Mirie land - Possession prior to the coming into operation of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, on 1.9.1946 – Prescription period governed by Ottoman Land Code - It is 10 years and in the case of registered land has to be completed before 1.9.1946 - Renunciation of prescriptive rights.
P. Mesaritis, for the Plaintiff
M. HjiVassili (Miss), for the Defendant.
JUDGMENT
The following judgment was delivered by:
KALLIS, D.J.: This litigation concerns a dispute over a piece of land at Palechori village of 550 sq. feet in extent; which is being claimed by plaintiff, in her capacity as administratrix of the estate of her deceased father, as belonging to his estate by virtue of purchase, possession and inheritance [*312].
Defendant contended that he purchased the disputed land from its registered owner in 1960 and was transferred and registered in his name in March, 1960.
The Evidence:
P.W.1 Nicos. Siakallis, a Land Officer 1st Grade who carried out a local inquiry on the 19.11.84, testified that the subject-matter plot - No. 1275/2 - had originally been part of plot 1275. In 1928 the registered owners of plot 1275 were a certain Maria Savva Kotsoni in respect of 1/2 share and Papakyriacos Papacharalambous in respect of the other 1/2 share. Following the construction of a road, which according to his file was constructed in 1930, plot 1275 was divided into two plots, namely, plots 1275/1 and 1275/2. The next registered owner of plot 1275/2 was Loukia 1 Damianou Metochi under Reg. No. 9959 dated 15.1.1960; and the last registered owner - who is the present-day owner - was Kyriacos Lasettas - the defendant - by virtue of registration No. 9659 dated 21.3.1960.
P.W.2 Georghios Matsoukas, aged 80, who has lived all his life at Palechori, testified that plot 1275 had originally and before 1932 been a big “frakti” with almond trees. There followed the construction of a road through this plot as a result of which the plot was cut into two. The witness could not speak with certainty of the date of construction of the road, but he supposed (υποθέτω) that this happened about 1932. After [*313] the construction of the road the disputed plot was bought by Markos Kyriakou - plaintiff’s father - from Papakyriakos and Markos used to cultivate it with various vegetables, until recently when the disputes with the others claiming it arose. When Markos acquired the field he levelled it and used irrigate it with water that was coming through the other plots of his that abut the disputed plot. Markos used to cultivate the disputed plot continuously from 1932 to 1946 because nobody else went to claim it.
Cross-examined, he said that after the death of Markos the disputed plot was taken by his children. He did not know, however, when Markos died. He, also, said that in the disputed plot there were two olive trees which were uprooted. He could not remember when they were uprooted but it was before 1940. They were uprooted by Markos in order to level the plot and convert it into a garden. The witness could not remember when defendant bought the land nor could he remember when Markos levelled it.
The plaintiff, who testified as P.W.3, said that she was born on 1.5.1930. She knew the disputed land because it used to be cultivated by her father, she remembers from childhood (από μικρής ηλικίας) that it used to be possessed by her father and nobody came forward to claim it. When her father levelled it, he used to cultivate it with vegetables. She remembers that her father has been cultivating [*314] it since 1935 when she was 5 years old. Her father used to cultivate it until 1977 when he died. All the lands surrounding the disputed plot belonged to her father, two of them were bought after 1935 but she could not say exactly when. Her father registered in her name the plots abutting the disputed plot in 1975 and she used to cultivate them since then together with the land in dispute. Defendant put forward a claim over the disputed plot for the first time one year after her father’s death and she proposed to him to settle the matter amicably (να κάμουν καλά). When defendant accepted the proposal she asked him how much he wanted, he replied “£30”, she accepted and asked him to go to Nicosia and have the plot registered in her name, whereupon she would 1 give him the £30; but defendant finally failed to turn up, and later asked for £200.
In cross-examination, she could not remember whether there were ever olive-trees in the plot in question.
P.W.4 Costas Livadhiotis, an L.R.O. Officer, testified that the plot in question was of arazi-mirie category.
P.W.5, Eleni Papakyriacou, a 74 year-old lady from Palechori, testified that the plot in question had originally belonged to her mother - Maria Savva Kotsoni - and after their parents had distributed their property to them, the said plot came into the [*315] lot of her brother Charalambos who sold it to Lasettas, she could not remember when the plot was taken by her brother. She, subsequently, said that her brother sold to the defendant the plot which is over the road (πουπάνω) and the one beneath the road (πουκάτω) was given by her father to Markos - plaintiff’s father. Her father sold it to Markos but she could not remember when. She could not remember when the road that cut the plot into two was constructed. At a later stage of her testimony she said that the plot in dispute was gifted (το εχάρισε) by her father to Markos and Markos used to cultivate it with vegetables.
D.W.1 Iosif Antoniou, a D.L.0. Officer, testified 1 that on 26.9.81 plaintiff submitted an application - exh. 4 - for the determination of a boundary dispute concerning the disputed plot and plot 1302; and that upon receiving the application he made a local inspection and in the presence of the plaintiff and her opponent - the defendant - he indicated the boundaries and advised them to place boundary marks.
D.W.2 Savvas Pontikos, a 77 year old person from Palechori, testified that there was an olive tree in the disputed plot and after its uprooting there were placed debris thereon and since then the land remained uncultivated.
The defendant who testified as D.W.3 said that he bought the disputed land in 1960. He knew that the lands abutting the said plot belonged to plaintiff’s [*316] father but he had not seen him cultivating the disputed plot. After purchasing it in 1960, Markos - plaintiff’s father - agreed to lease it from him at £3 a year in order to have it fenced so that animals would be prevented from entering his plots. In cross-examination he said that Markos was leasing the disputed plot from him until his death in 1977.
The Law:
It is by now very well settled that acquisition of ownership by prescription prior to the coming into operation of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, is governed by Article 20 of the Ottoman Land Code, as amended by the Immovable Property Law, 1886 (Law 4/86); and the period of prescription for arazi mirie category was 10 years (see Kakoullou and Another v. Kakoulli, (1985) 1 C.L.R. 355 at p. 362, Savva v. Petrou, (1985) 1 C.L.R. 127, Kyriacou v. Petri and Others, (1985) 1 C.L.R. 275, and Theodorou v. Antoni, 1961 C.L.R. 203).
It is, further, settled that adverse possession over a disputed land must be proved by positive evidence as to the acts of ownership which amount to possession which the nature of the land admits (vide Kakoullou (supra) and Soteriou v. HjiPaschali, 1962 C.L.R. 280 at pp. 281 - 282, Charalambous v. Ioannides, (1969) 1 C.L.R. 72, Aradipioti v. Kyriakou, (1971) 1 C.L.R. 381, and Hji Petrou v. Petsoloukas (1985) 1 C.L.R. 83 at p. 89). [*317]
It is, moreover, settled that in claims of this kind the plaintiffs have to rely on the strength of their case and not on the weakness of the adversary’s case (vide HjiPetrou (supra) and Andrea v. Dourmoush, 1962 C.L.R. 7).
It is, also, settled that the certificate of registration is prima facie evidence of ownership; and a person who claims to defeat the title of a holder has either to establish that the registration was effected in the name of the holder by mistake or error, or that, where there is room for acquisition of a prescriptive right, the holder of such certificate has lost his right over the land as it has been adversely possessed by such person (vide Socratous v. Mezou, (1975) 1 C.L.R. 62 at p. 82, and Theodorou v. Hadj iAntoni, 1961 C.L.R. 203 at p. 208).
The heirs of a person who completed the prescriptive period are entitled to succeed to his rights over the land (vide Delia v. HadjiMichael, 6 C.L.R. 23).
It is also settled that section 9 of Cap. 224 is unaffected by section 10 thereof; and consequently acquisitive prescription over the land of a registered owner cannot run against him after the coming into operation of Cap. 224, on the 1st September, 1946 (vide Theodorou (supra), and Ioannou v. Georghiou, (1983) 1 C.L.R. 92 at p. 101); and that the period of prescription if not completed by the 1st September, 1946 cannot be completed thereafter against a [*318] registered owner (vide Ioannou (supra) at p. 101, and Papageorghiou v. Komodromou, (1963) 2 C.L.R. 221 at p. 337).
In Mourmouri v. Hadiilanni, (1907) 7 C.L.R. 94, the following were stated:
“It is, we think, an undoubted proposition that, if a person who is entitled to set up a prescriptive right against another person, expressly renounces his prescription, or does an act which is by implication equivalent to renunciation, he cannot afterwards reassert the prescription against the person in whose favour he renounced it”.
In the case of Charalambous (supra) it was held that the following facts constituted renunciation:
The following facts have led us to the conclusion that the son renounced his right:
“(a) for 26 years (from 1926 to 1951) he possessed the property as alleged by him, yet he failed to obtain registration in his name, and in 1951 his mother had the property registered in her name;
(b) for 40 years (from 1926 to 1965) he possessed this property as alleged by him, yet for 25 years after the completion of the prescriptive period and prior to his death in December 1965 he failed to obtain registration; [*319]
(c) for 14 years (1951 to 1965) after the registration of the property in his mother’s name he failed to assert his prescriptive right. It should be borne in mind that for about 8 years prior to his death, that is, from 1957 or 1958, he lived apart from his wife and he resided in the same room with his mother in the house in dispute”.
In Makri v. Makri, (1984) 1 C.L.R. 642, Malachtos, J. said the following at p. 654 after citing the above passage from the Mourmouri case (supra):
It follows from the above that the legal position is the same and makes no difference as to whether there is renunciation of one’s rights in immovable property in favour of a specific person or abandonment to the world at large.
“Useful reference may be made to the case of Loizou v. Philippou, 6 C.L.R. page 105, where it 2 was held that the person who is entitled to be registered as owner by possession, but has abandoned his rights and since the land is in possession by a third person, he cannot be in a position and infinitum to claim registration by possession in his name and cancellation of the registration of the registered owners. There must be a finality of these rights if they are expressly or impliedly abandoned”.
Having summarised the evidence and the legal position, I will endeavour to evaluate the evidence [*320] and apply the above legal position to the accepted by me facts of this case.
Having considered the evidence of the three L.R.0. officers (P.W.1, 4 and D.W.1), I am satisfied that they are all witnesses of truth and I accept their testimony in toto. Relying on such evidence I find that the disputed land was of arazi mirie category and was registered land. I, further, find that in 1981 plaintiff applied for the determination of a boundary dispute affecting the disputed plot and an abutting plot of hers. In view of these findings and the above statement of the law, I hold that the prescriptive period is 10 years and had to be completed before 1.9.1946 - the date of the coming into operation of Cap. 224. Further, I hold that possession during the prescriptive period has to be proved by “positive evidence as to the acts of ownership which amount to possession”; and that “plaintiffs have to rely on the strength of their case and not on the weakness of the adversary’s case”.
Turning now to the other evidence adduced, I must observe that though P.W.2 spoke with precision of dates and events, namely, of continuous cultivation by Markos from 1932 to 1946 - he could not remember the date of a most recent event, namely, the date of death of Markos which occurred in 1977; and though he connected possession by Markos with uprooting, levelling and conversion into a garden, he was not specific about the dates of these events. This state of affairs, coupled with his demeanour which [*321] rather revealed that the witness was not certain of the accuracy of what he was uttering, led me to the conclusion not to accept his evidence. Regarding the evidence of the plaintiff, I must observe, apart from matters of demeanour, that I cannot rely on and consider as “positive evidence” within the meaning of the above case-law, what the plaintiff remembers when she was a child of tender years - 5 years old. Apart from this she has not impressed me favourably as a witness of truth having, also, fallen into a contradiction regarding the cultivation of the plot for she first said that her father used to cultivate it until his death in 1977 and later that she herself started cultivating in 1975. Her evidence, therefore, will be rejected.
Lastly, P.W.5 could not remember dates and she was at times speaking of a sale and at times of a gift. Having considered the evidence of this witness along with her demeanour which, also, revealed uncertainty of the accuracy of what she was depositing, I cannot rely thereon and reject it; adding that the attempt of learned counsel for the plaintiff to bring the alleged possession by Markos within the prescriptive period by reference to the date and age of marriage of the witness, could not render the testimony of the witness, having regard to her demeanour, credible and reliable. [*322]
All in all, regarding the evidence adduced by plaintiff on possession, and apart from matters of demeanour which have been above referred, I am of opinion that such evidence utterly lacks the ingredient of “positive evidence” demanded by the afore-quoted case-law.
Finally, regarding the evidence of D.W.2 and the defendant, I must say that they both impressed me most poorly as witnesses and their evidence is rejected.
Having rejected the evidence adduced by plaintiff, I conclude that plaintiff failed to prove possession during the prescriptive period; and in view of this conclusion the action of the plaintiff is bound to fail. It is true I have, also, rejected the evidence of the defendant but let me repeat that the “plaintiff has to rely on the strength of her own case and not on the weakness of the case of her adversary”.
Having concluded as above, I would add that the claim of the plaintiff is bound to fail for another reason too, namely, renunciation as enunciated in the Mourmouris case (supra) and the subsequent above referred to case-law. The following facts lead me to the conclusion that there was renunciation of the prescriptive right in that plaintiff and her predecessor did or omitted acts which are “by implication equivalent to renunciation”. [*323]
(a) The failure of plaintiff’s father to obtain registration in his name though allegedly he possessed the said plot from 1932 until his death in 1977;
(b) The proposal by plaintiff - according to her own admission - to settle the matter amicably and her offer of an amount for the purchase of the land;
(c) The fact that up to 1981 plaintiff was viewing her dispute with defendant over the plot in question as a boundary dispute and hence her application in 1981 for the determination - and actual determination - of such dispute.
Regarding renunciation, though not expressly pleaded by the defendant the latter pleaded the lease and that plaintiff applied for determination of a boundary dispute and such averments are to my mind sufficient to bring renunciation into the picture(vide Makris (supra ) at p. 654).
In the result, the action is dismissed with costs to be assessed by the Registrar.