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Court of Cassation - Civil & Trade Division - Number: 21 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 21Year: 2008Session Date: 5/6/2008

The Court Panel :Abdulla Bin Ahmed Al-Saadi - Ibraheem Mohamed Al-Taweela - Mounir Ahmed El Sawy - Mubarak Bin Naser Al-Hagry - يحيى إبراهيم عارف. -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Prescription or Lapse of time "acquisitive, extinctive, or positive, negative prescription: duration of" "Instances of: Lapse of suit for eviction, lapse of suit for yield of converted property" Cassation: "Grounds of appeal: New Grounds". Judgment "Reasoning of: "Proofing flaws: misapplication of law: when considered not as such Suit "suit for eviction, suit for claiming yield of converted property" Yield Ownership "Grounds for acquiring ownership: Possession" Court of First Instance, "power to make inference as to good or bad faith of possessor" "factual matters".

Session May 6, 2008

Appeal No. 21, 2008, Civil Cassation

(1-3) Prescription or Lapse of time "acquisitive, extinctive, or positive, negative prescription: duration of" "Instances of: Lapse of suit for eviction, lapse of suit to recover yield of converted property" Cassation: "Grounds of appeal: New Grounds". Judgment: "Reasoning of: "Proofing flaws: misapplication of law: when considered not as such". Suit "suit for eviction, suit for claiming yield of converted property" Yield Ownership "Grounds for acquiring ownership: possession".

(1) Previous Civil Law No. (16), 1971 applying to the point in issue was devoid of any provision recognizing possession as a reason for acquiring property by prescription and Islamic Sharia not recognizing the same. Import of. Allegation to have revived wasteland and appropriating it. Condition for. Ownership of must not be established to a third party. Appealed judgment must comply with this view. good law. Not to be derogated by Appellant's argument against the judgment for contradicting lay notion that possession is a reason for acquiring ownership . Reason for. existence of such custom may not be raised for the first time before the Court of cassation.

(2) Suit for eviction filed by the owner to recover his property from the abator, person who converted it to his own. may not lapse by prescription. Reason for.

(3) Suit for recovering the yield from converted property. lapses by long prescription of fifteen years. Article (196/2) of the previous Civil Law corresponding to Article (404/2) of the current one.

(4) Court of First Instance, "power to make inference as to the existence of good or bad faith of possessor" "factual matters".

Existence of good or bad faith of possessor. Factual situation. Within the purview of First Instance Judge power to make inference of its existence from its likely points in the suit and gather it from its conditions and circumstances, without review by the Court of Cassation. Condition for. his inference must be tolerable and sufficient to support his judgment.

1- Since Civil Law No. (16), 1971 under which the suit was filed and is governed by its provisions was devoid of any provision recognizing possession as a reason for acquiring property by prescription and that as Islamic Sharia recognizes no prescription, positive or negative, and observes subsistence of rights forever, accepting only allegations of revival of wasteland for owning it provided that it belonged to no one; and as the appealed judgment on Appellant's claim to establish his title to the land in dispute concluded by dismissing his suit, concurring with this view having support in the papers, hence it is correct law, least to be derogated by Appellant's argument for contradicting lay notion that possession is one reason for acquiring ownership, which argument not be raised before the Court of Cassation for the first time.

2- Suit for eviction raised by the owner to recover his property from the one who converted it, may not lapse by prescription, for, the title to property is permanent right which does not get lost by non-user.

3- The import of provision of Article (196/2) of the repealed Civil law - corresponding to the middle of the second paragraph of Article (404) of the present Civil law - is that suit for claiming the yield of converted property may not lapse except by the lapse of fifteen years; as conversion is an lawful act, it lapses only by long prescription.

4- Held - that existence of good faith of possessor or not is a kind of factual situation which falls within the sole purview of the First Instance Judge to infer it out of its likely points in suit and surrounding conditions and circumstances, without such inference being subject to review by the Court of Cassation if it is tolerable and sufficient to support such judgment.

Court
After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.
Whereas the appeal has satisfied its formal conditions.
The facts, as stated in the appealed judgment and all the suit papers, are that Appellant filed Suit No. (-) Full Civil - against Respondent asking for judgment establishing his title to the land referred to in the statement of suit on the basis that Respondent sold him the land by consent of first Respondent his authorised partner to sell it and when he remained in possession of it for more than fifteen years as owner he filed the suit to establish his title. The court passed judgment dismissing the suit. Appellant filed Appeal No. 233/1998 and the court cancelled the appealed judgment and returned suit to the first step court, before which first Respondent counter-claimed for eviction of the land in dispute plus obligating Appellant to him 600,000 riyals in compensation for the loss he incurred for being deprived benefit of the land which was converted by Appellant to himself. The court passed judgment in the original suit dismissing it, and in the sub-suit by evicting Appellant and ordering him to pay to first Respondent the sum of 600,000 riyals. First Respondent appealed this judgment under No. 460/2001 and Appellant filed Appeal No. 484/2001 against it also. The court, after joining the two appeals appointed an expert in suit and on 31/5/2006 passed judgment Appeal No. 484/2001 cancelling the appeal judgment and declaring validity of the sale the subject of suit made in1982, signed by second Respondent representing himself and his partner first Respondent in a de facto company between them, stating that the two partners sold the land in dispute to Appellant for one million and six hundred thousand riyals and dismissed the counter claim suit. As this judgment was not accepted by first Respondent he filed Appeal No. 95/ 2006 by way of cassation and on 26/12/ 2006 the court allowed cassation of the judgment of the Court of Appeal for error of legal qualification of the dispute as being for validation of the sale contract between the litigating parties, thereby, getting out of the suit raised. The Court of Appeal passed judgment on 28/1/2008 in the Appeal No. 484/2001 declaring lapse of the right to claim benefit of the land in dispute for the passage of more than fifteen years before raising the sub-suit on 4/1/2000 and otherwise dismissing the appeal. With regard to Appeal No. 460/2001, the court modified the appealed judgment by increasing the benefit compensation to become two hundred thousand riyals, and otherwise confirming it. Appellant made this appeal for cassation of this judgment, which was put before this court – in the consultation room – which fixed a date for hearing.
Whereas the appeal is based on three grounds, on the first of which Appellant argues against the appealed judgment for misapplication of law, explained by saying that judgment dismissing his suit for asserting his title to the land, is based on the fact that Islamic Sharia and the repealed Civil Law, applying to the point in issue, do not recognise possession as grounds for acquiring ownership by prescription, and that there's no way to assert the defence of revival of wasteland since it is owned by a third party, while it was he who revived it by erecting buildings and residing in it in addition, it's recognized by custom and followed by the courts as a proper prescriptive grounds for acquiring ownership if its conditions are satisfied as in the present suit; therefore the judgment is flawed and requires cassation.
Whereas this argument is not correct, since the Civil Law No. (16), 1971 under which the suit was filed and become subject to its provisions was devoid of any provision recognizing possession as a reason for acquiring property by prescription and that as Islamic Sharia recognizes no prescription, positive or negative, and observes the subsistence of rights forever, accepting only the allegation of reviving wasteland for owning it provided that it belonged to no one; and as the appealed judgment on Appellant's claim to establish his title to the land in dispute concluded by dismissing his suit, concurring with this view and having support in the papers, hence it is correct law, which is least to be derogated by Appellant's argument for contradicting the lay notion derived from Islamic Sharia that possession is one reason for acquiring ownership, an argument which may not be raised before the Court of Cassation for the first time, in addition to the fact that there's no such notion in Islamic Law.
And whereas Appellant argues on the rest of the grounds of appeal against the appealed judgment for misapplication of law and deficient reasoning, explaining it by saying that the judgment in the first Respondent's suit binding him with compensation and eviction, was based on the conclusion that he was intruder and abator, consequently rejected the prescription defence despite the passing of fifteen years against the alleged right and without stating the reasons, which is a flaw requiring cassation.
Whereas this argument is inadmissible, for, the suit for eviction raised by the owner to recover his property from the one who converted it, may not lapse by prescription, since the title to property is permanent right which does not get lost by non-user. And that the import of provision of Article (196/2) of the repealed Civil law - corresponding to the middle of the second paragraph of Article (404) of the present Civil law - is that suit for recovering the yield of converted property may not lapse except by the lapse of fifteen years; as conversion is an lawful act, it lapses only by long prescription. And that existence or non-existence of good faith of possessor is a matter of factual situation which falls within the sole purview of the First Instance Judge to infer it out of its likely points in suit and surrounding conditions and circumstances, without such inference being subject to review by the Court of Cassation if it is tolerable and sufficient to support such judgment. That being so, and as the appealed judgment inferred bad faith of Appellant in possessing the land in dispute as he was proved to be an abator or intruder and accordingly concluded that first Respondent is entitled to claim eviction and recover its yield for the fifteen years preceding the date of judgment passed on 17/6/2001 without considering such entitlement which might have accrued before that date based on the lapse of such previous period, therefore this judgment is correct law not being tainted with any flaw, hence, argument against it is baseless.

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