Privy Council Appeal No. 16 and 17 of 1944 Fatima Ahmad AI’Afifi and others
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Appellants
The Government of Palestine and others —
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Respondents
v.
The Village Settjement Committee of Arab En Nufei’At
Appellants
v.
Aharon Samsonov and others —
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Respondents
Consolidated Appeals FROM
THE SUPREME COURT OF PALESTINE
JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, perL1vERED THE 15TH APRIL, 1948
Present at the Hearing : LorD SiMONDS LorD MORTON OF HENRYTON
SIR MADHAVAN NAIR
[Delrvered by LORD MORTON OF HENRYTON]
Counsel for the appellants in these consolidated appeals have said with force and clarity all that could properly be said on behalf of their clients. There are, however, concurrent findings of fact by the Land Settlement Officer and ‘the Supreme Court of Palestine which, in their Lordships’ view, make it impossible for the appeals to succeed. In these circumstances it would be inappropriate to discuss the appeals at any great length, though their Lordships fully appreciate that the matters in question are of vital importance to the parties concerned.
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Appeal No. 16 is an appeal from three judgments of the Supreme Court, all delivered on the 22nd April, 1941, in Civil Appeals Nos. 121/40, 123/40, and 124/40, dismissing appeals from decisions of the Land Settlement Officer, Haifa Settlement Area, all given on the 4th April, 1940, dismissing three groups of consolidated individual claims .to various parcels of land by the appellants, who are Arabs of the tribe of en Nufei’at or Infiat. The appellants claimed that they had acauired a title to the land by presciption, based upon alleged possession and cultivation as of right for a period in excess of the statutory period of ten years. Appeal No. 17 is an appeal from two judgments of the Supreme Court both also delivered on the 22nd April, 1941, in Civil Appeals Nos. 125/40 and 126/40, dismissing appeals from decisions of the Land Settlement Officer, Haifa Settlement Area, given on the 21st March, 1940, and the 4th April, 1940, respectively, dismissing two groups of consolidated claims by the appellants, the Village Settlement Committee of Arab en Nufei’at (on behalf of the tribe) to certain other
parcels as common lands by prescription—the acts alleged in support
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of one group of claims being grazing, woodcutting, and camping on the land, and in support of the other group of claims cultivation of parts of the land also.
In the year 1880 the Turkish Government made a grant of lands in the area in question to the tribe of en Nufei'at who were then in occupa-
tion. Very soon after the grant the tribe sold the land to one Shaker Pasha who resold it to one Selim Khoury, and he in his turn sold it in the
year 1890 to a group of Jewish settlers.
These persons were regigtered
as the owners, under the Ottoman Land Code, and Kushans, or title deeds, were issued to them. They founded a colony at Hadera (also
spelt *“ Hudeira ”’ or ‘‘ Hedera’’), and the respondents, other than the Government of Palestine, are their successors.
In 1929 disputes arose between the Village Settlement Committee of Arab en Nufei’at, the Village Settlement Committee of the Jewish Colony at Hudeira and the Government of Palestine concerning land in the vicinity of Hudeira, and in particular the locality of Nufei’at, in consequence of which proceedings known as Case No. 111/29/Nufei’at were begun before the Settlement Officer, Jaffa and Hudeira Settlement Areas. The action was heard in two parts: Part I as an Application by the Attorney-General’s representative for the fixing by the Settlement Officer of the boundaries of three Kushans held by the Jewish Colony at Hudeira for certain localities; and Part Il as a similar application by the Village Settlement Committee of Arab en Nufei’at in respect of two other localities.
In his final judgment delivered on 31st July, 1930, the Settlement Officer fixed the boundaries of the land covered by the respondents’ Kushans. The judgment was without prejudice (inter alia) to prescriptive claims, if any, to land within the area of these Kushans, based on adverse possession during the statutory period.
On the 3rd January, 1931, this judgment was affirmed on appeal by the Land Court of Haifa; and on the 7th January, 1932, an appeal from the Land Court to the Supreme Court was dismissed on technical grounds. The judgment accordingly became final. In 1932 the hearing was begun before the Settlement Officer of an action (Case No. 153/32) by the Village Settlement Committee of Arab Infiat
against the Village Settiement Committee of Hudeira in which the plaintiffs advanced a collective claim by prescription to certain parcels of land, lying within the area of the respondents’ Kushans. This claim was based in some cases on the exercise of grazing, woodcutting and camping rights, and in others on cultivation of the land. The defence was that if the plaintiffs had ever cultivated the land they had done so as tenants of the defendants aud that the plaintiffs’ other activities on or in connection with the land did not affect the registered title or afford the plaintiffs any registrable right. After hearing evidence at length the Settlement Officer on the 15th July, 1932, delivered judgment dismissing all the claims.
The
Land
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Court
of
Haifa, on
appeal,
delivered
a
judgment
remitting the case to the Settlement Officer for retrial of each claim separately on the grounds (inter alia) that the land was not all. of one category, and, further, that the leases produced had not been strictly proved and were in any case evidence only against the persons
who were parties to them.
This judgment contained the following
description of the lands in question: —
*“ The subject of this appeal is a large tract of land lying between the Colony of Hedera and the sea—of such a size that it would take a man the better part of a day to ride round its boundaries without leaving him very much time to examine the land itself.
Following the inspection of the land in dispute which we made, we have come to the conclusion that the trial in the Court below
was unsatisfactory because the Settlement Officer attempted to decide
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in one fell swoop a case the nature of which was as to preclude it from being dealt with in so summary a fashion. The land in question is not all of one category—it contains woods and orange orchards, land which has obviously been cultivated and other land which never has been, in all probability: in such circumstances, the history of the various parts of the land cannot De the same, and consequently, wherever there are differences, the question of ownership should form the subject of a separate enquiry and each case
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should be tried on its merits.”
On appeal to the Supreme Court judgment was given on the oth May, 1935, upholding (with a slight modification) the decision of the Land Court and remitting the case to the Settlement Officer. On remission each plaintiff had an opportunity to prove possession or cultivation in his own right. The varicus claimants taen submitted to the Settlement Officer
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individual claims to separate parcels, and in addition the Village Settlement Committee submitted certain claims to other parcels as common land of the tribe. These claims were considered individually by the Settlement Officer, Haifa, and consolidated or combined for hearing into various groups; and after much investigation and taking of oral evidence on the land and considerable argument the Settlement Officer gave five decisions—the first in cases Nos. 1, 2, 7, 16, G3 and 95 combined; the second in cases Nos. 6, 18, 38, 62, 63, 97 and 98 combined; the third in cases Nos. 3, 4, 5. I5 10, 33, 35. 43, 45 and 54 combined (all of which cases are the subject of Appeal No. 16); the fourth and fifth in case No. 12, Parts II and III, on the claims to common land {the
subject of Appeal No. 15).— In each case he dismissed the claim — — It is convenient at this stage to quote section 51 of the Palestine Land Settlement Orcinance No. ¢ of rgz8. As amended, that section is as
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follows:
“51. Where a scttlement officer is satisfied that land is registered in the name of any person and that another person has been in possession thereof for such period and under such conditions as will prevent any action for recovery of the land being heard, he shall enter the name of the person in possession in the Schedule of Rights as owner of the land in respect of the interest therein, which was
heid by the person registered as owser. Provided that, where the person in whose name the land is registered opposes the appiication and the settlement officer is satisfied that the person making the appiication originally obtained possession from the register=d owner as
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tenant or mortgagee, or otherwise than
owner,
he shall not be
bound to enter the name of the applicant in the Schedule of Rights as owner of the land, or he may enter it subject to such conditions as he thinks fit.”
As the lands in question were registered in the name of the respondents, the appellants could only succeed if they ‘‘satisfied’’ the settlement officer in each case that they had been in possession thereof ‘‘ for such
period and under such conditions as will prevent any action for recovery of the land being hoard’.
The period and conditions there referred to
are to be found in the Ottoman Land Laws. For the present purpose it is sufficient to refer to the material portions of Articles 20, 23, 24 and 78 thereof, which are set out as follows in Fisher's Ottoman Land Laws. —
"Art. 20.—In the abscnce of a valid excuse according to the Sacred Law, duly proved, such as minority, unsoundness of mind,
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duress, or absence on a journey (muddet-i-sefer) actions concerning land of the kind that is possessed by title-deed the occupation of which has continued without dispute for a period of ten vea~s shall not be maintainable. The period of ten years begins to mn from — — —
the time when the excuses above-mentioned have ceased to exist.
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Art. 23.—A person who takes land from the possessor under a
lease or loan acquires no permanent right over the land by reason 59337
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of the length of time for which he cultivates and possesses it, so
long as he acknowledges himself a lessee or borrower. Consequently
no account is taken of lapse of time and the possessor will always have the right to take back his property from the lessee or borrower. Art. 24.—Places which have been used as winter (kishlak) and summer (yaylak) pasturing grounds ab antiquo, other than those that are appropriated to the common use of one or several villages,
differ in nothing from cultivable land when they are possessed by title-deed by one person exclusively or by several persons jointly. All enactments hereinafter applicable to State land, are equally applicable to such pasturing grounds. Art. 78.—Everyone who has possessed and cultivated State or mevqufé land for ten years without dispute (bila niza) acquires a right by prescription and whether he has a valid title-deed or not the land cannot be regarded as vacant, and he shall be given a new title-deed gratuitously.
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Unfortunately for the appellants, they failed to satisfy the Settlement Officer of the necessary facts in any of the five cases before him. In the first of the three cases which are the subject of Appeal No. 16, he opened his decision by saying:— ‘" The plaintiffs in this case are the heirs of Ali Abdulla Suleiman and claim the ownership of the lands in dispute by a prescriptive right acquired under Art. 20 of the Land Code against the defendants who are the registered owners of the land.” Later, he saidi—
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‘“ After considering the oral evidence of the plaintiffs and their witnesses, the manner in which the evidence was given, their demeanour and evasiveness under cross-examination, and the obvious
falschoods disclosed in their oral evidence, I have no hesitation in
coming to the conclusion that they were well aware that neither they nor their father before them ever had any property in the land. I now come to the actual claims to have possessed and cultivated
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the land.
The plaintiffs sought to prove by the evidence of five
not altogether consistent witnesses the long uninterrupted possession and cultivation of the land by the late Ali Abdulla Suleiman. No one who actually ploughed or cultivated the land gave evidence, though it should not have been difficult to produce first-hand evidence if it existed: the witnesses testified they saw the land being cultivated but clearly this in itself does not disclose the circumstances of the
cultivators tenure.
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Three of the witnesses were plainly untruthful
and one of the heirs called as a witness by the court was obviously
at a loss to preserve his oath and defend the plaintiffs’ claim. I come to the conclusion that no reliance can be placed on the plaintiffs’ evidence and the long uninterrupted possession and cultivation is not proved.”
He then expressed the view (in effect) that any possession of the appellants was as tenants and not as owners and concluded ‘* For all these reasons
I find the plaintiffs’ claim not proved ’’. In the second of these three cases the settlement officer said: —
“* After considering the oral evidence of the plaintiffs and their witnesses, the manner in which it was given, their replies under cross-examination and the inconsistencies disclosed in the oral evidence and then that of the defendants and their witnesses, I come to the
conclusion that the plaintiff’s statements are not to be believed.” In the third case he said: —
‘“ After considering the oral evidence of the plaintiffs, the manner in which it was presented, the demeanour of the witnesses, and the evasiveness of their replies, I come to the conclusion that no reliance can be placed on their statements and their evidence is unreliable."
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In each of these three cases the appellants relied on oral evidence, with the addition of certain extracts from the tithe register which in themselves were insufficient to prove their case. The oral evidence having been rejected as unreliable, the case of the appellants was bound to fail. On appeal, the Supreme Court delivered three short judgments referring in each case to the Settlement Officer's findings of fact, which they clearly accepted, and dismissing the appeals. Their Lordships regard the decision of the Settlement Officer and the judgment of the Supreme Court in each of these three cases as being, in effect, concurrent findings of fact against the appellants. They see no good reason for allowing the present appeal in any of these three cases. If a different view of the facts had been taken in Palestine, it would have been necessary to consider in some detail the further defence, put forward by the respondents, that such possession as was proved by the appellants was originally obtained under certain leases or tenancy agreements.
It is next necessary to consider the two decisions of the Settlement
Officer on the claims to common land, which are the subject of Appeal No. 17. These claims were all consolidated for purposes of hearing into case No. 12/Nufei’at; but for purposes of judgment were split into two groups—those in which the claim was based merely on long and uninterrupted exercise of grazing, woodcutting and camping rights (referred to as case No. 12/ Nufei’at Part IT) and those also based on cultivation (case
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No. 12/Nufei’at Part ITI). After hearing considerable evidence on the land the Settlement Officer
gave his decision on Part II on the 21st March, 1940, dismissing the claims. He opened his decision by saying ‘“ This decision concerns the lands claimed by the plaintiffs to be their common grazing lands, wood-
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cutting areas and camping sites. No claim to have cultivated any part of the land has been made by the plaintiffs’. He then pointed out that in this decision he was concerned with land which, in case 111 2; had been found to be the registered property of the respondents.
He found as facts that it was the custom of the Arabs to pitch teniin the most convenient and accessible places according to thc seasons and the occupations foliowed at the time, but that there had been no
permanent settlement on any one parcel and that they had moved around
within the general boundaries of the whole of the land; that they had
taken here and there wild bushes and trees or the new growth round
the stools of eucalyptus trees felled by ithe respondents—using such
wood for domestic and not for commercial purposes; and that the Arahs’ herds and flocks grazed over the disputed lands, and cultivated lands adjoining, after harvest.
Having thus found the facts he considered whether such uses con.
stituted * occupation ** adverse to the registered owners within the meaning
of Article 20 of the Land Code and held that they did not. The Settlement Officer indicated (and clearly accepted) the case for
the respondents that the Arabs camped on the land by permission of
the respondents, and that the respondents paid the property tax as registered owners, He drained the swamps, planted the eucalyptus and exploited the lumber. concluded— “1 do not find that the colonists have been neglectful of thei rights and find that they have done all these things that were reason
able to do. The onus of proving possession is on the plaintiffs and
on the facts and my conclusion as to facts set out in this decisioy I find they have failed to do so. Consequently their claim mus be dismissed and is hereby dismissed and judgment entered in favour
of the defendants.”
The appellants’ appeal to the Supreme Court (No. 125/40) was dismissed. In form, the judgment of that Court is open to objection, since
it quotes as containing findings of fact by the Settlement Officer a passage
from his decision which was, in part at least, a statement of the case put forward by the respondents. There is, however, no substance in
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this objection. Having regard to the frame of the Settlement Officer's decision and of the judgment of the Supreme Court, their Lordships feel no doubt that both of these tribunals accepted the respondents’ contention
that the presence of the Arabs ‘ was permitted as relations between all parties were cordial until this litigation arose’. If the acts of camping, grazing and woodcutting were by permission, they were not of such a kind as would ‘‘ prevent any action for recovery of the land being heard >’ within the meaning of section 51 of the Ordinance No. g of 1928, read in conjunction with the relevant Articles of the Land Code.
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Consequently the appellants’ claim was rightly dismissed by both tribunals. Even if the acts in question were done without permission, the appellants would be faced with formidable difficulties, in view of the findings that ‘“ there had been no permanent settlement on any one parcel ’’ and that there was no cultivation proved in regard to the land which was the subject of this decision. See, for instance, Articles 24 and 78 of the Land Code and such cases as Habiby v. Government of Palestine, 1940 Pal L.R. 288; Afu Shuqueiri v. A.G., 1943 Pal. L.R. 231; Nayef v.
Government of Palestine, 1946 Pal. L.R. 37. On the sth April, 1940, the Settlement Officer gave his decision: on Case No. 12/Nufei’at Part III, wherein the appellants claimed certain land as being common land of the tribe by virtue of (inier alia) cultivation
over a long period of time. After examining the evidence of alleged cultivation by the appellants under a system of common ownership, the Settlement Officer continued: —
“1 come to the conclusion there never was any recognized system of ownership in masha’ and that if the land was cultivated it was the work of individuals cultivating as and when they pleased without reference to any system of customary tenure. It is now claimed that the simple system of equal shares is replaced by one in which
the shares are fixed and heritable though apart from the Village Settlement Committee, the Arab en Nufei’at know little about either
system.
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On the evidence of the plaintiffs I also find no continuous cultivation of the hollows as they claim. The evidence-in-chief of plaintiffs’ witnesses was always the same but in examination discrepancies and | :
serious contradictions appeared. The evidence is not sound and unshaken and cannot be accepted as reliable, and since adverse possession
must be strictly proved I find the plaintiffs’ claim is not proved. There is one other point in the plaintiffs’ claim that should be referred to, that is the payment of tithe. An extract of the tithe
register of Arab en Nufei’at for the years 1920-1927 was produced containing the names of the principal members.
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It is well known
that tithe is payable by the cultivator and that tithe receipts are no conclusive evidence of ownership though they indicate possession. This extract was checked by me with the tithe register, and apart from the omission of certain names I found that where both plaintiffs and defendants jointly were responsible for the tithe the entries
had been ignored.
If this tithe record is good proof of ownership
as the plaintiffs would have me believe, then it is good proof in favour of the defendants as well.
In Part IT of this decision reasons were given for rejecting as unreliable the evidence of the plaintiffs and in this claim to have cultivated part of the land I reject their evidence also.
I do not find it necessary to enquire into the authenticity of the leases relied upon by the defendants, as I am satisfied that the lands
have never been cultivated by the Plaintiffs, and consequently I make
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noSheikh decision to whether signed by the Mukhtar and are as evidence againstthetheleases plaintiffs. Having found the plaintiffs’ claim to ownership by prescriptive right not proved, their claim is hereby dismissed and judgment entered in favour of the defendants.”
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{he Supreme Cour: dismissed an appeal from this decision and observed © I'hi= is one of a series of cases which were returned to the Land Settle-
ment Officer in order to go into the facts as to cultivation and occupation. He has done this and has found that the appellents have not cultivated the land.”
Their Lordships can only regard the decision of the Settlement Officer and the judgment of the Supreme Court as being concurrent findings of fact against the app:llants’ claim to have cultivated the land in question. On this footing, this last appeal to their Lordships” Board must also fail.
If the appellants had satisfied the Settlement Officer or the Supreme Court as to their possession of the lands in question, further questions would have arisen. In particular, it would have been necessary to consider the case put forward by the respondents that any possession proved was originally obtained under certain leases. Further, it would have been necessary to consider the question of law which was deal with in Rapapor? and another v. Latin. Patriarchate, 1946 Palestine L.R. p. 195, where the Supreme Court expressed the view that ‘* mashaa owners cannot acquire a mashaa title against a registered owner by prescription ’’, As all the five cases now before the Board were dismissed in Palestine
on the findings of fact already stated, their Lordships found it unnecessary to call upon counsel for the respondents to argue any point of law. They have formed no view upon the points of law raised or the cases cited by counsel for the appellants, as these points of law did not arise for decision having regard to the findings of fact in Palestine. =m
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For the reasons already stated, their Lordships will humbly advise = _ _ = - —His Majesty that these consolidated appeals should be dismissed. The appellants must pay the costs of the respondents who appeared.
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