9. Tapu Department.

ADMINISTRATION.

The Tapu Department discharges two principal functions:(1) It is concerned with the registration of title, and all transfers, mortgages, etc., required to be registered if the Courts are to take notice of them.

(2) It is concerned with the protection of Government lands and the prevention of encroachments upon them.

General improvement and progress have been made in the Department in 1925.

An additional Inspector has been appointed for the duty of visiting all the outstation offices and checking the books which had previously not been systematically done. This new appointment has justified itself by bringing to light deficiencies in fees, the result of inaccurate collections and other reasons, amounting to nearly Rs. 10,000/-.

It had been apparent for some time that the size of the Baghdad provincial Tapu area was becoming unwieldy, and in July last a new Tapu province, called the Euphrates Tapu Area or Mantaqah, was formed, with headquarters at Hilla, embracing the Hilla, Karbala, Dulaim and Diwaniya Liwas, transferred from the Baghdad Tapu province, within which only the Baghdad, Kut and Diyala Liwas now remain. The whole country is therefore now divided into four Tapu provincial areas with their headquarters at Baghdad, Mosul, Basra and Hilla respectively. The volume of work in the Directorate General has largely increased, but the staff remains the same. The majority of work in connection with Government property, such as the preparation of plans and information of land cases, and sales on Badal Mithl* of Government lands, wrongfully appropriated by private individuals, passes through the hands of the Directorate General. Each case of sale on Badal Mithl involves assessment of the value and the preparation of a plan.

Requests for the re-opening of the Tapu Office at Sulaimaniya have been received and the matter is now under consideration. The records have been tampered with under the regime of Shaikh Mahmud and much property has been destroyed. It is only proposed to start work within the town at first and it will be necessary to check and investigate all cases closely before commencing operations.

The position on the Mosul frontier being unsettled, no new offices have been opened, but those already functioning have continued their work without interruption. One or two sub-offices

* Badal Mithl=First refusal.

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in other parts of the country, the retention of which was found to be unnecessary, have been closed and the staff transferred to the Liwa headquarters from which periodical visits will be arranged.

A headquarters Survey Section, under the charge of an 'Iraqi official, has been formed at Baghdad with the object of ultimately providing a central record of the plans of all landed properties. Throughout the country, the Tapu Survey staff consists of one Superintendent, two Inspectors, one Assistant Inspector and 45 Surveyors who are distributed as follows:18 in Baghdad Mantaqah, 8 in Euphrates Mantaqah, 9 in Basra Mantaqah and 10 in Mosul Mantaqah. This staff has been concerned chiefly in surveys of areas required for sale transactions and the preparation of detailed measured plans for court cases and departmental purposes. Where possible, districts in which there has been much encroachment on Government land or where application for registration is likely, have been selected for general survey. The headquarters Inspector has checked and dealt with plans and cases sent up from all parts of the country needing reference to headquarters and for headquarters record.

The Mosul Survey section consisting of partly Tapu and partly Survey Directorate staff, under a superintendent of the Survey Directorate, has completed the survey of 49 villages, comprising 6,271 plots and an area of 170,000 acres in the Liwa of Mosul. In addition, 19 complete villages comprising 129 plots and an area of 60,000 acres have been surveyed and demarcated for registration purposes. The defining of the lands affected by the new railway line from Kifri to Kirkuk has involved the survey of 140,000 acres and the demarcation of 227 plots. Fourteen villages previously surveyed have been demarcated, involving 5,949 plots. 792 inspections for various purposes of an area of 11,000 acres were also carried out.

OFFICE PROCEDURE.

Improvement of office procedure is being effected from time to time and this year an important matter has been dealt with in the abolishing of registration of shares under separate deeds and the adoption of the system of carrying out the single registration of the complete property with all the facts and shares contained in one document. The introduction of this new procedure at first gave rise to a certain amount of difficulty, but it is now in force all over the country.

Hitherto the only form of mortgage used has been the kind known as mortgage by "Wakalah Dauriyah," a cumbersome method in which the property is sold on condition, through an irrevocable agent, and much difficulty has always arisen in its administration. Some of the difficulties of the system have been

the production of undisclosed leases and the refusal of the irrevocable agent to sell the mortgaged property on the expiry of the mortgage period. If the mortgagee had arranged to be appointed as the irrevocable agent of the mortgagor, he was not at liberty to bid for the property. Also the debt was not negotiable. A new form of mortgage, legalized under the Turkish regime, in 1328 A.H., has been officially introduced by the department. Under the new form, which closely resembles the English type, if the value of the property is larger than the amount of the first mortgage charge on it, the property may be further mortgaged for other debts, to the second, third or any other degree, and in this case the mortgages of prior degree will have preference over those of later degree. In contradistinction to the old system, the amount of debt remains unaffected by the partial or total destruction of the mortgaged property, while buildings erected or trees planted after the mortgage are considered as forming part of the property and subject to the mortgage. In this form the debt is negotiable and undisclosed leases have no effect on the proceedings for foreclosure. No irrevocable agent is required for the consummation of the sale of the mortgaged property as the Tapu Office is empowered by the law to sell it finally to the highest bidder.

DELIMITATION AND INVESTIGATION.

Certain areas have been selected for detailed investigation in the light of the existing title deeds after complete survey and this has involved very careful scrutiny owing to the inaccurate work of the Turkish regime, which was carried out without a survey and in most cases without inspection. Once the investigation is complete, duplicate copies of the survey and lists are kept at headquarters for checking subsequent transactions when sent up for approval and issue of deeds. In areas where the Survey Directorate is undertaking a cadastral survey, mamurs of the Tapu Department have been detailed to accompany the surveyors in order to point out the boundaries of properties and so get them recorded on the maps. During the year this work has been carried out in Mosul, 'Amara, Basra and Nasiriya Liwas. The failure to adopt this procedure in the survey carried out between Fao and Basra in 1923-24 has given rise to a number of claims and disputes. A survey of the riverain area between Nasiriya and Suq-ash-Shuyukh was undertaken by the Irrigation Directorate during the summer and, with this department co-operating in defining the boundaries of property, a complete investigation and delimitation was carried out. But the best plan appears to be to embark on a policy of gradual settlement throughout the country, more or less on the lines of the Turkish law of February, 1328 A.H., regarding the demarcation and registration of immovable property. The whole purpose of that law as outlined in its first section is to demarcate, register, and assess the value and income of immovable property all over the

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country. The necessary machinery set up under the law consists of: (a) demarcation committees formed of a mamur, a clerk, and an engineer chosen by the Tapu Directorate, with two surveyors as assistants; (b) registration committees formed of a revenue mamur, a Tapu mamur, a judge empowered to give a decision. and (in places where the Ministry of 'Auqaf think it proper) an 'Auqaf mamur. Their assistants will be an engineer and two surveyors. A number of owners of immovable property in the district are added to the committee at the time of the assessment of the value and income of the properties; (c) A special office, to be called the Survey Office, set up by the Tapu Department for carrying out the demarcation and registration.

An important feature of the law is that it provides that the registration committees should be equipped with quasi-judicial powers to settle disputes whenever they arise after demarcation of boundaries has taken place through the demarcation committees. The parties at variance may agree to accept the registration committee's award as final, if not, the aggrieved party will be given a reasonable time not exceeding 15 days to apply to the Court of Appeal, in accordance with the provisions of the Civil Cases Procedure Law. Provision for fees for registration and survey is also made to cover expenses.

STATE DOMAINS.

The subject of State domains is a very important one having regard to its numerous and far-reaching bearings on the economical and administrative requirements of the country. It is one of the Government's main sources of revenue. The Tapu Department is not concerned with the direct management of the estates, it is only concerned with the Government's right of ownership over un-alienated miri lands and escheated urban or arable properties. The position appears to be that all lands, excluding urban mulk (freehold) properties, belong primarily to the State and that good title to such lands can only be obtained in consequence of alienation by Government. This view has been recently borne out by the 'Iraq Courts which have ruled that Haqq Qarar, i.e. acquisition of title to miri lands by long and undisturbed possession, is a legal impossibility in 'Iraq.

The registration of War and Peace Cemeteries for the British Government has been practically completed throughout the whole country and the necessary Royal Irada has been issued for those on Government (miri) land making them into freehold (mulk) of the British Government or of the War Graves Commission, as many of them were found to be on Government land which has been granted free.

COURT CASES.

The Tapu Department has had many cases to defend on behalf of the Treasury. Most of those cases have been brought by the Ministry of 'Auqaf in the Shar'a or Mohammedan religious

law courts. An important difference between the procedure of the Civil Courts and that of the Shar'a Courts is in the payment of Shar'a Court fees after the conclusion of the proceedings, and on the issue of the judgment. These fees are very low compared with the fees charged by the Civil Courts and do not therefore operate as a sufficient deterrent against the bringing of frivolous actions in Shar'a Courts affecting State properties.

RECEIPTS AND FEES.

The falling off which has occurred in fees and receipts may be attributed to the decline in value of immovable property which has been going on for the last few years and has now probably reached its limit. The amount of capital invested in the mortgage of properties (with the consequent registration of these transactions) has been less than in previous years owing to the fear that subsequent foreclosure sale price (if the debtor should default) will not reach the amount of the debt. Another factor affecting this form of investment has been the lack of security felt by the investing public as a result of some bad cases in which mortgagees have encountered difficulties with dishonest or insolvent debtors and have been frightened into abandoning their claims. In other cases bidders have not dared to come forward to bid at the auction sales. Early in the year a cry was raised for the grant of a moratorium in respect of mortgage debts. Happily things have been prevented from getting worse by the attitude of Government which has discountenanced the agitation.

The decline in the returns of sales on Badal Mithl must be accounted for by the lack of proper co-operation between the authorities concerned, and of proper machinery to deal with it. The mudirs in the Mantaqahs report that much revenue may be derived from the regularisation of these encroachments on Government land, by the collection of their value, in addition to future Tapu fees which would accrue on transactions which might take place subsequent to their purchase from Government. The fact that much property is unregistered naturally deprives Government of the usual Tapu fees as such properties when dealt with are the object of transactions carried out privately outside the Tapu Offices. These transactions are illegal owing to their not being entered in the Tapu registers. It has been suggested that in order to encourage registration the fees payable on the initial registration of property should be waived and registration done free; this was tried by the Turks without success. A cadastral survey and settlement would of course put an end to this state of affairs.

A factor causing much inconvenience and delay is the still undecided question of the limits round town areas within which it is permissible to hold freehold (mulk). This has remained. unsettled for five years and is a vital question under the land.

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