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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V18) 1 CLR 120
1948 February 28
[JACKSON, C.J., AND HALID, J.]
MICHAEL N. KYRIAKOUDHIOU,
Appellant,
v.
ELENI MICHAEL TIMOTHI,
Respondent.
(Civil Appeal No. 3762.)
Right of passage-Agreement at the time of partition-Mulk property Arazi Mirie land-Mejelle, section 1166-0ttoman Land Code, sections 13 and 14.
Section 1166 of the Mejelle provides that " if at the time of the partition, a stipulation is made, giving the share of one a right of way, or, a right of overflow over the share of the other, that stipulation is held good." It was contended for the respondent that the Mejelle refers to mulk property and is not, therefore, applicable to the present case in which the land concerned is of the Arazi Mirie category to which the ottoman Land Code is applicable. As section 13 of the Ottoman Land Code only recognises a right of passage enjoyed ab antiquo, it was contended that such an agreement, although binding on the person who made it, does not bind his heirs or assignees.
Held : (i) that the Mejelle is applicable to cases in which no provision is made in the Ottoman Land Code and that, therefore, it is applicable to cases in which the land concerned is of the Arazi Mirie category in the same way as it applies to mulk property.
(ii) that, by reason of sections 13 and 14 of the Ottoman Land Code, an agreement entered into at the time of partition of Arazi Mirie land, granting a right of passage, is binding not only on the person who allowed the right of passage over his land but also on his heirs and assignees.
Judgment of the District Court reversed.
Appeal by defendant from the judgment of the District Court of Larnaca (Action No. 190/42) in favour of the plaintiff.
J. Clerides with G. Chryssafinis and Pattichis for the appellant.
S. Stavrinakis with J. Michaelides, G. Achilles and
G. Georgiou for the respondent.
The facts sufficiently appear from the judgment of the Court which was delivered by:
JACKSON, C.J. : This is an appeal by defendant from the judgment of the District Court of Larnaca.
The facts of the case, as clearly set out by the learned District Judge in his judgment, are as follows:-
The plaintiff is the owner of plots Nos. 198/1 and 507/1 by virtue of title deed No. 32081 dated 22nd May. 1935, and the defendant is the owner of plots Nos. 198/2 and 507/2 by virtue of title deed No. 23911 dated 25th March, 1919, as shown on the plan produced (Exhibit 2).
The plaintiff's father and the defendant were brothers and the properties concerned were registered in their joint names by inheritance from their father.
The defendant and his late brother, the plaintiff's father, divided the above-mentioned property through the Land Registry Office by virtue of application No. 1418/1918. The division was made on the 5th March, 1919, and in consequence of that division the plaintiff's father was registered as owner of plots 198/1 and 507/1 and defendant as owner of plots 198/2 and 507/2. The plaintiff's father transferred, by way of gift, the property so registered in his name in May, 1935, to his daughter, the plaintiff in this action.
At the time of the division an agreement was entered into between the plaintiff's father and the defendant by virtue of which the plaintiff's father granted to the defendant three rights of passage through his property at three different points, as shown on Exhibit 2 under Nos. 1, 2 and 3 and marked in red ink. On the 31st July, 1923, the plaintiff's father acknowledged the above rights of passage of the defendant in a document which has been produced and which is Exhibit 3.
From the time of the above division the defendant made use of these said passages, without any objection either on the part of the plaintiff's father or by herself, until some time in April, 1942, when the plaintiff objected. On the 27th May in that year she brought the present action, claiming a declaration of the Court that her property is not subject to any servitude of passage in favour of the defendant's property, an injunction restraining defendant, his agents and servants, from passing through her property and she also claimed 10s.for damages caused to her standing crop of barley by the defendant when passing through her property on or about the 10th April, 1942.
The defendant denies the plaintiff's claim alleging that he has a right of passage through her property from 3 points as shown on Exhibit 2 by virtue of an agreement made with the plaintiff's father at the time of the division which later was embodied in Exhibit 3 and by the user of the said right of passages for over 20 years.
As regards passages from points 2 and 3 on Exhibit 2, the defendant alleges that the right of passage from those points existed before the year 1911 when his father bought from a certain Efstathios Zaris plot No. 507/1, the other plots being bought by his father from Stylianos Zaris in 1887. The defendant has filed a counter-claim for an injunction restraining the plaintiff from interfering with his rights of passage as shown on Exhibit 2 or, in the alternative, £100 damages.
After dealing with the allegation of the appellant (defendant) that the right of passage from points 2 and 3 existed before 1911, the learned Judge says " I know of no principle in Cyprus law on which I could base myself and recognise such a right of passage against the person who acquired the property over which such right exists from the person who created that right, unless such right existed from time immemorial which is not the case in the present action. Therefore the defendant's claim by way of counter-claim for an injunction against plaintiff for the 3 rights of passage must fail. As regards the claim of the defendant for damages, no evidence was adduced before me what damages he suffered and therefore I cannot entertain his claim."
The ground of appeal is that the judgment is erroneous in law became such an agreement as the District Court found to have been made is valid in accordance with section 1166 of the Mejelle which reads as follows : " If at the time of partition a stipulation is made giving the share of one a right of way or no right of overflow over the share of the other that stipulation is held good."
Counsel for the respondent contended that the Mejelle refers to mulk property and is not, therefore, applicable to the present case in which the land concerned is of the Arazi Mirie category to which the land Code is applicable. As section 13 of the Land Code only recognises a right of passage enjoyed ab antiquo, counsel contended that such an agreement, although binding on the person who made it, does not bind his heirs or assignees. From a careful perusal of Ali Haidar and Halis Eshref, both commentators on Land Code, we have no doubt that the Mejelle is applicable to cases in which no provision is made in the Land Code. Commentators on the Land Code find themselves obliged to make reference to the Mejelle when dealing with almost every section of the Code in order to explain their meaning.
Both the Mejelle and the Land Code are based on the sacred law. The Mejelle is the general law and the Land Code deals with special conditions.
Halis Eshref in his commentary on the Land Code on page 147 says, " the Mejelle which is general law is not applicable where there exists provision in the Land Code which is a special law." From this it is implied that where there is no such provision in the Land Code then the Mejelle is applicable. Ali Haidar, at page 6, says, "Sheri Law will be applicable when there is no provision in the law. Hence the reason, in commenting, for applying Sheri Law to numerous cases in which there is no provision in this law."
Again Ali Haidar commenting on section 13 of the Land Code at page 83 says, "The provision of this section which provides that a person who has a right of passage over a land cannot be prevented from using it is based on section 1197 of the Mejelle which says, ' No one can be prevented from making such dispositions as he likes in regard to his own mulk.' It may occur that the word ' mulk ' appearing in this section will have no connection with Arazi Mirie yet the mulk mentioned in that section applies as well to Arazi Mirie."
Many similar passages can be cited to show that the Mejelle is applicable when the Land Code is silent.
This finding disposes of this appeal but we should like to add that such an agreement as the one before us is binding, without invoking the provisions of the Mejelle, by reason of sections 13 and 14 of the Land Code.
Section 13 reads : " Every possessor of land by title deed can prevent another from passing over it unlawfully but if the latter has an ab antiquo right of way he cannot prevent him."
Section 14 reads : " No one can arbitrarily make a water channel or a threshing floor on the land of another nor do any other arbitrary act of possession on it without the sanction and knowledge of the possessor." Ali Haidar commenting on this section on pages 86 and 87 says as follows: " But he can make a water channel or a threshing floor or do any other act of possession with the consent of the possessor and this consent may amount either to a lease if there is consideration or to a loan (Iare) if there is no consideration. In the case of Iare the possessor can withdraw his permission and take the land back in accordance with section 831 of the Mejelle. In short, the possessor may grant a licence to another person to do any act that he could do himself and for that purpose the leave of the Official is not required and the Official cannot prevent him."
Halis Eshref on page 171 states that to make a water channel or a threshing floor are not acts deriving from ownership but from a right to the use of the land. The same remark applies to passage. The possessor of land may make a passage over his land for his own use or permit another to make one, either with or without consideration.
As a transfer of Arazi Mirie by the State to an individual is considered to be a lease, a transfer from an individual to another is considered to be a lease, notwithstanding the fact that the duration of lease is not fixed.
If granting a right of passage for consideration is considered to be a lease, and such lease, although the duration is not fixed is, according to both commentators, valid, it follows that not only the person who allowed the right of passage over his land but also his heirs and assignees will be bound by it. This is clear from the above passage from Ali Haidar in which he says that if the consent amounts to loan only, the possessor could rescind it but the commentator is silent as to what would happen if the consent amounted to a lease. The inference is that in that case the lease cannot be rescinded.
It is impossible to imagine that the legislator intended not to recognise such rights of passage, for the holding of Arazi Mirie is conditional on the land being cultivated, and from cultivated land the State derived tithe. If the contention of the respondent were upheld the appellant would have no access to his land.
This appeal must be allowed, with costs here and in the Court below.
The plaintiff-respondent's action will be dismissed and defendant-appellant's counter-claim for an injunction will be allowed as claimed.