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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V10) 1 CLR 15
1910 December 2
[TYSER, C.J. AND BERTRAM, J.]
HAJI GEORGI HAJI. KYRIAKOU AND ANOTHER
v.
KYPRIANO MANUEL.
IMMOVEABLE PROPERTY-OBLIGATION OF COURT TO ENFORCE REGISTERED TITLE.
A Court cannot refuse to enforce a registered title on the ground that the registration was made erroneously where there is no claim to set aside the registration by a person lawfully entitled to be registered for the property in question.
Plaintiffs and Defendant both claimed title to a certain property by long possession, but neither had in fact acquired a prescriptive right. Plaintiffs nevertheless procured a Village Certificate and having obtained registration upon the basis of the certificate, sued the Defendant upon their qochan. The Defendant by a cross-action claimed a right to registration on the ground of prescription, but failed to prove his claim. The District Court (being equally divided) nevertheless dismissed the Plaintiffs' claim on the ground that their qochan had been obtained by a false certificate.
HELD: that the Plaintiffs were entitled to the enforcement of their registered title.
This was an appeal from a judgment of the District Court of Nicosia.
The case consisted of an action and a cross-action. The title set up by both parties was based upon long possession, but as a matter of fact neither party had had undisputed possession long enough to constitute a prescriptive title. The Plaintiffs nevertheless succeeded in procuring a village certificate that they had been in possession of the land for the necessary period, and having obtained a qochan upon the basis of the certificate, sued upon the qochan. The Defendant by his cross-action claimed a right to set aside this qochan, and a declaration of his right to be registered on the ground of prescription.
The District Court (Holmes, P.D.C., and Makrides, J.) was unanimously of opinion that Defendant had failed to prove his claim to a prescriptive title, and the cross-action of the Defendant was accordingly dismissed. With regard to the original action however Holmes, P.D.C., being of opinion that the Plaintiffs' qochan was issued upon a false village certificate, held that Plaintiffs were not entitled to judgment. Makrides, J., was of opinion that Plaintiffs were entitled to judgment upon their registered title, and, the Court being equally divided, judgment was entered for the Defendant.
The Plaintiffs appealed.
Paschales Constantinides and Theodotou for the Appellants.
Artemis for the Respondents.
The Court allowed the appeal.
Judgment: THE CHIEF JUSTICE: The effect of the judgment now appealed against is that the Plaintiffs' title-deed was issued upon a false certificate: that that title-deed ought to be set aside, and that consequently his action must be dismissed with costs.
As a matter of fact there was no claim in the cross-action to set aside the Plaintiffs' qochan on this ground, but this was not a judgment in the cross-action. It was a judgment in the original "action" in which the Plaintiffs were suing upon their registered title. As a matter of fact the Judges were not unanimous-but let us assume that this was a unanimous judgment-what would then be the position?
The Court would be claiming a right to go behind the qochan issued by the Government, when there is no claim in that respect by any party to the action, and no right to the land in question has been proved by any party to the action, simply because the Court thinks the qochan was wrongly given.
If the case is put in that way I do not see how the decision can be supported. The Courts are not Courts of Appeal from the Land Registry Office. All that the Court does is this that where by the subsistence of any registration injury is done to some one who is entitled to the land, and where the person aggrieved comes into Court to assert his rights as against the person registered, the Court hears his claim and makes a declaration of his rights, and the Land Registry Office acts upon the Court's declaration.
The Court has no right to take the qochan into its own hands, and, without the qochan's being challenged by any person entitled to the property, to decline to enforce it.
The appeal must therefore be allowed with costs.
BERTRAM, J.: I agree. No claim to have this qochan set aside on the ground that it was given on a false certificate was made in the cross-action, and even if it had been made it could not have succeeded, as the Defendant was neither herself registered nor entitled to be registered either on the ground of prescription or otherwise.
It is clear from the case of Juma v. Hahil Imam (1899) 5 C.L.R., 16, that a person who has neither a qochan nor a right to a qochan cannot challenge a trespasser. Much less can he challenge a person armed with a qochan. And if the Defendant is not entitled to challenge the Plaintiff's qochan by cross-action, still less can he do so by way of defence.
Appeal allowed.