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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V3) 1 CLR 243
1895 November 19
[SMITH, C.J. AND MIDDLETON, J.]
GEORGHIO ANASTASSI
Plaintiffs,
v.
HADJI IOSIFI HADJI KYRIAKO AND NIKOLA HADJI TOGLI
Defendants.
IMMOVABLE PROPERTY-MULK-SALE OF WITHOUT REGISTRATION-RIGHT OF VENDOR TO RETAKE POSSESSION-RETURN OF PURCHASE MONEYS-ACKNOWLEDGMENT OF RECEIPT OF PURCHASE MONEYS-FALSIFICATION OF ACKNOWLEDGMENT.
A vendor who has affected to sell mulk property registered in his name, without any change in the registration being effected, is entitled to recover possession of the property unless the vendee has acquired a prescriptive title.
The cases in which the Courts will order possession of such property to be given to the vendor, on the terms of his repaying the purchase money, are those in which the receipt of the purchase money by the vendor is either admitted or proved.
APPEAL from the District Court of Nicosia.
Pascal Constantinides (Diran Augustin with him) for the appellant.
Artemis for the respondent.
The facts and arguments sufficiently appear from the judgment.
Judgment: In this action the plaintiff claimed to re-restrain the defendants' interference with a courtyard adjoining his house, situate at Kato Zodia.
It was admitted that the piece of property in dispute was registered in the plaintiff's name, but it was proved for the defence that in the year 1880, the yard was sold by the plaintiff to his sister Schonou, now deceased, and the defendants justified their interference on the ground of this sale, asserting that Schonou and her successors in title, had had undisputed possession of the property for 13 years, and had thus acquired a good prescriptive title.
The title by prescription was not established; but the District Court held, that as the property was mulk, the plaintiff had ceded to Schonou all his interest in the property, that the contract was binding upon him, and dismissed his action.
From this judgment the plaintiff appealed, and it was contended for him that as the registered owner of this yard, he was entitled to the possession.
For the respondent it was argued that the interference with the property complained of, must be taken to be with the leave and license of the plaintiff, and that, at all events the plaintiff must be compelled to return the purchase money.
It is quite clear to us that the plaintiff, as the registered owner of the premises claimed, is entitled to the possession of them. The alleged sale in 1880, having been unaccompanied by registration, was inoperative to convey the property to Schonou, and as no prescriptive right has been obtained as against the plaintiff, the legal ownership of the property remains in him, and he is entitled to have the defendants restrained from the interference he complained of.
With regard to the argument, that the interference of the defendants must be taken to be with the leave of the plaintiff, it is sufficient to say, that the leave given to Schonou by him to take possession of the yard has now been withdrawn, the plaintiff having given the defendants notice that they were no longer to interfere with the property.
The only question remaining is, whether the order of injunction in favour of the plaintiff should be made on terms of repayment of the purchase moneys alleged to have been paid by Schonou. The Supreme Court has in several cases laid down the principle, that a person who has affected to dispose of property in a manner not recognised by the law, should not on equitable grounds be allowed to recover the possession of his property and retain the purchase money too. See Christinou Stavrino Yanni v. The Queen's Advocate, C.L.R., Vol. I., p. 46, and Theodoulo Zenobio v. Meirem Osman, C.L.R., Vol. II., p. 168.
The circumstances in the present case are a little peculiar. The property originally belonged to one Anastassi, the father of the plaintiff. The plaintiff asserts, and there is no evidence to the contrary, that he acquired the ownership of the yard in dispute, which forms part of a large house-yard, from his father in his lifetime. The kochan he produced was issued to him in April, 1888, in lieu of a previous one which he had lost. This kochan does not contain any reference to the date of the original registration, but on enquiry from the Registrar General, we have ascertained that the property was at the first Yoklama of 1292, registered in the plaintiff's name. The registration, as was usual, at that Yoklama was described as "original": that is to say it does not contain the ground on which the registration in the plaintiff's name was effected. There was no evidence before the Court as to the date of Anastassi's death, but in 1880, or about five years after the property had been registered in the plaintiff's name as the sole owner, the contract relied upon by the defendants was entered into.
This document recites that the plaintiff and three other children of Anastassi "have sold" to Schonou their "proportionate shares" in the yard descended to them from their father, and they acknowledged the receipt of 1,000 piastres. Anastassi is said to have left seven heirs, and what had become of the other two, who did not join in the making of this document, is not stated. It is difficult to understand why the three children of Anastassi, who, according to the registration, had no interest whatever in this property, should have joined in affecting to sell this property to Schonou, and acknowledge the receipt of the purchase money.
It may be, as was alleged, that they joined in the transaction for the sake of greater security, which means, we presume, that there was some question at the time as to the validity of the plaintiff's registration.
However this may be, it would appear, that if any moneys passed at all on this transaction, there were others besides the plaintiff interested in them, and there would be a difficulty on this ground in making this order of injunction on the terms that the plaintiff repaid the purchase moneys. Another point in connection with this branch of the case is this. We have already decided that such an acknowledgement as the receipt of the purchase moneys contained in a document, such as the one, before us, is an acknowledgment, the truth of which may be contested under Article 1589 of the Mejellé. See Georghi Hadji Petri v. Kypriano Hadji Petri (C.L.R., Vol. II., p. 187).
There was no claim raised by the defendants in the Court below, that the plaintiff should obtain his injunction on the terms of repaying the moneys he had received. No evidence was put before the Court as to whether the purchase moneys were in fact received by the plaintiff, and owing to the view taken by the Court that this was a valid sale, evidence on that point was, of course, unnecessary. It was alleged before us that the plaintiff did not admit that he had received the 1,000 piastres, and we think that in cases, such as the present, an order of injunction, on the terms of the plaintiff repaying the moneys he has received, should be confined to cases where the receipt of such moneys by a plaintiff is either admitted or proved. We, think, therefore, that judgment should be entered for the plaintiff in the terms of his claim for an injunction simply: this will, of course, be no bar to the defendants taking any proceedings they may think well to take to enforce their rights, if they have any, to recover any moneys payable by the plaintiff in respect of the transaction between himself and Schonou.
With regard to the costs of this action, it appears to us that the plaintiff's intention was to dispose of this yard to Schonou, that he has now repented, and seeks to obtain the property back again, and whilst admitting his legal right to have possession of the property restored to him, we do not think that we ought to make the defendants pay the costs.
The judgment of the District Court will, therefore, be reversed, and the appeal allowed without costs.
Appeal allowed.