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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V7) 1 CLR 89
1907 December 12
[TYSER, C.J. AND BERTRAM, J.]
BETWEEN
TSIKKINOU HAJI SAVA,
Plaintiffs,
v.
KYRIAKOU YEORGHI MARIOLOU,
Defendant.
BOUNDARIES-ADJOINING PROPRIETORS EACH CLAIMING UNDER QOCHAN-BURDEN OF PROOF-POSSESSION.
Where there is a dispute as to boundaries between two adjoining proprietors, both claiming under qochans, each of which is consistent with the claim of the person holding under it, and where one of the parties is in possession of the land in dispute, the onus lies upon the party seeking to disturb that possession to establish his claim to the satisfaction of the Court.
Appeal of the Defendant from the judgment of the District Court of Famagusta.
This was a boundary dispute between two adjoining proprietors. Both claimed by virtue of qochans, and each qochan was consistent with the claim of its holder. There was no natural boundary. Conflicting evidence of long user was given by a great number of witnesses called by both parties. The Plaintiff was in possession and had cultivated up to the boundary line which she claimed for the past eight years.
The District Court decided the case in favour of the Plaintiff on the basis of a plan which under the circumstances of the case they considered to be conclusive between the parties. The Supreme Court held that the plan did not bind the Defendant as against the Plaintiff, and it has not been thought necessary to report this part of the case. While deciding that the judgment of the District Court could not be supported on this ground, the Court nevertheless upheld the judgment on the ground stated below.
Pascal Constantinides for the Appellant.
G. Chacalli and Agathangelos Papadopoulos for the Respondent.
Judgment: Both Plaintiff and the Defendant have qochans, and as far as the terms of these documents go, either qochan may include the disputed strip. Both sides gave evidence of user, extending back for a great number of years.
It appeared however that the Plaintiff was in possession of the disputed strip and had cultivated it up to the boundary which she now claims for the past seven or eight years.
In these circumstances it was contended for the Defendant, that this being a claim by the Plaintiff, the onus lay upon the Plaintiff to establish to the satisfaction of the Court either that the disputed strip was necessarily included in her qochan, or that she and her predecessors had cultivated the disputed strip for a sufficient time to prescribe any possible claim on the part of the Defendant, and that the evidence on these points being conflicting and indecisive, the Defendant was entitled to judgment.
We are of opinion however that the case is governed by another principle.
In dealing with all property, but more especially with immovable property, the law prima fade protects possession-unless that possession can be shown to have been acquired by force, by stealth or by permission, as against the person impeaching it. This is a fundamental principle of the English law of real property, under which any person in possession of land may bring an action to vindicate that possession, and in any such case it lies upon the person disputing the right of the possessor to establish that he holds a superior title. It is also a principle of the Roman law, as shown by the interdict uti possidelis, which imposed the role of Plaintiff and with it the onus of proof upon the person seeking to disturb the party in possession. See Justinian, Institutes IV, xv, 4. "Commodum autem possidendi in eo est, quod, etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet suo loco possessio propter quam causam, cum obscura sint utriusque jura, contra petitorem judicari solet." The same principle has been adopted by French jurisprudence (see Planiol, Droit Civil, Vol. II, Sec. 2286) and probably by all other systems which are based upon the Roman law.
In this country the Courts will assert this same principle in protection of persons in possession under a title which the Court recognises-that is to say-persons holding under a registered title.
Applying that principle to the class of cases now under consideration we are of opinion that where .a dispute as to boundaries arises between two adjoining proprietors, both claiming under qochans, each of which is consistent with the claim of the person holding under it, and where one of the parties is in possession of the land in dispute, the onus lies upon the party seeking to disturb that possession to establish his claim to the satisfaction of the Court.
In this case the evidence adduced by the Defendant does not satisfactorily discharge that onus.
The appeal must be dismissed and the judgment of the District Court affirmed with costs.
Appeal dismissed.