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Concluding remarks

No formal concluding summary of this paper is necessary, since the main conclusions were forecast in the introductory chapter. All that remains to be done is to tie up one or two loose ends in the argument and perhaps to suggest a moral.

Distinction between cadastral and other large-scale maps

The reader may notice that the two terms “cadastral maps” and “large-scale maps” have been used almost as though they were interchangeable. This is true of some cadastral and large-scale maps but not of others. The Myanmar revenue maps are large-scale maps containing all horizontal topographical data drawn to exact scale. These maps were made for cadastral purposes but can be used for any purpose not requiring vertical topography. Conversely the British maps on the scale 1:1,250 and 1:2,500 are large-scale topographical maps not made for cadastral purposes but usable as cadastral maps. Many of the cadastral maps of continental Europe, however, contain only a minimum of topographical detail and may indeed be mere perimeter plans of holdings which do not even show interior field details. The uses to which such maps can be put without the insertion of further detail are obviously much more limited than the uses to which the maps of Myanmar and the United Kingdom are adapted. Yet, provided that the survey is sound and that the holding boundaries are recognizable on the ground, the topographical and other additional detail can usually be easily inserted at reasonable cost and the possibilities of adapting these maps to new requirements should always be examined before a new survey is undertaken. Clearly, however, a country embarking on a new cadastral survey will do well to adopt the model of Myanmar or the United Kingdom and get a more generally useful map at very little extra expense.

Distinction between registers and records

The terms “register of rights” and “record of rights” have likewise been used as though they were synonymous. In practice they may often be so, but in theory they are not. A “register” of rights is a record of formal acts of registration of legal rights but a “record” of rights may be compiled for some other purpose than the formal registration of legally established rights, as, for example, the Myanmar record is primarily a register not of rights but of revenue assessees.

Position of registrars

A few words are necessary on the position of the registering authority, who for convenience will here be called the registrar, though in practice this may or may not be his or her title. The duties of a registrar include some administrative and some quasi-judicial functions. These may be divided between two authorities: for example the quasi-judicial functions may be exercised by the civil courts or by some persons designate among the judges. The division of responsibility usually occurs where the register purports to record absolute title. The powers and duties of the registrar vary depending on whether registration is compulsory or optional. If registration is optional the registrar may have no discretionary function except to decide whether the evidence submitted is sufficient to justify registration, but if registration is compulsory the registrar may, and usually will have in some situations, the duty of ascertaining the true facts. This is a very important distinction and the burden placed on the registrar who has to establish absolute title under a compulsory system is a strong argument in favour of the initial registration of presumptive title only under such systems. The extent to which registrars have to exercise judicial functions has an important effect on the qualifications required in them, since they may require a legal training if they have to sift evidence of absolute title. On the other hand, under the simple Myanmar system, where the officer holding the original tenure inquiry has authority to determine once and for all the tenure status of each parcel of land, little or no legal knowledge is subsequently required.

Again under the optional system the registrar usually has the right to refuse registration if the evidence presented is not satisfactory. Under the compulsory system such general power of refusal is impossible and all that the registrar can do is to suspend registration either pending further inquiries, or to allow the consent of interested parties not represented to be obtained, refusal being confined to what are clearly illegal transactions. This again is an important distinction which greatly affects the necessary status and qualifications of the registrar. There may also be distinctions in the powers of the registrar to admit, refuse or suspend registration between initial registration and subsequent transfers.

In general, however, registrars (or their official superiors) will need the following powers:

  1. Power to accept, suspend or refuse an application for initial registration for reasons shown and recorded.

  2. Power to compel the attendance of any person or the production of any document.

  3. Power to impose on any person appearing before the registrar a legal duty to declare the truth.

  4. Power to issue caveats or inhibitions and to report apparent breaches of the law to the competent authority.

  5. Power to hold inquiries into facts and to come to findings on the facts so ascertained.

  6. In case of disputes under systems of compulsory registration, power to direct the parties to seek the orders of the court competent to determine the dispute.

  7. Power to correct errors in the registers.

  8. Power to state a case to the courts.

Persons entitled or bound to apply for registration

Under compulsory systems of registration the person claiming the possession or enjoyment of a right has usually a statutory duty to apply for registration, and sanctions against his or her failure to do so are provided by liability to prosecution or by legal disabilities. In the case of voluntary systems of registration this is of course not so and even under compulsory systems there may be persons who are entitled to apply for registration without being compelled to do so. The following list is intended to indicate the nature of the interest in a right which may place a duty on persons or entitle them to apply for initial registration.

  1. The person (or any member of a collective group of persons) claiming the primary tenure.

  2. The guardian of an infant or the committee of the estate of a lunatic.

  3. Other persons who have the right for the time being to dispose of the primary tenure.

  4. The person having the first vested interest of inheritance in the primary tenure of an estate held in fee-tail.

  5. A duly authorized representative of the government or of a subordinate authority.

  6. A mortgagee in possession.

  7. The holder of a right of perpetual use, subject to payment of an annual rent.

  8. A person claiming a right of subordinate tenure which is registerable (e. g. a lessee).

  9. A mortgagee not in possession if non-possessory mortgages are registerable.

  10. A person claiming a private easement or servitude over the land of another in respect of such easement or servitude.

  11. Any person claiming to share in a public right or easement in respect of any land in respect of that right or easement.

  12. A person claiming separate rights over trees or water on the land.

  13. A person having pre-emptive or reversionary rights over land.

In certain cases the agreement of some individual other than the right holder in person may be required before a claim for registration of a transaction in land can be accepted, even though the consent of the right holder to the original registration is not required. Such persons include the owner or joint owners of the first vested inheritance of land held in fee-tail or under a life interest, a mortgagee, a person holding a right of pre-emption or of reversion, every joint heir or other person claiming a share in land under joint tenure, and so on. Such person may also have the right to object to the registration of a transaction and so may certain public authorities, e.g. a civil court before which the land is in suit or a public official charged with the duty of enforcing a law restricting transfers of land by or to any class of person.

Revision of cadastral maps

In a report to the United Nations (ECOSOC E/1322 of 1949), the following passage occurs:

“Cadastral surveys, unlike scientific surveys of an informative character which may be amended with changing conditions or because they are not executed according to the standards now required for accuracy, cannot be ignored, repudiated, altered or corrected, and the boundaries created or re- established cannot be changed so long as they control rights vested in the lands affected.”

While it is true that a cadastral survey cannot be ignored or repudiated, it can nevertheless be altered for good cause shown and it not only may be but should be corrected where necessary. Revision and resurvey of the cadastral maps may indeed be essential to ensure that the “boundaries created or re- established” continue to “control rights vested in the lands affected”. Holdings and fields may be subdivided and different rights thus created. Land may be washed away by the sea or by changes in the courses of rivers. New land may be formed by the same natural forces. New roads, railways or canals may alter the boundaries of many properties. All these and many other changes will involve revision of the cadastre, and cadastral maps that take no note of them will rapidly become unusable.

What is true is not that the cadastral maps cannot be altered or corrected, but that in making such alterations due care must be exercised that the continuity of the record is not interrupted so that references from the current map (or register) to any of its predecessors can be made easily and with certainty. This continuity is, of course, of the greatest importance where reversionary rights exist or where, as in English law, riparian owners acquire rights over alluvial accretions adjoining their land or can re-establish rights over land which has reappeared after previous erosion, but it is an essential feature of all systems of registration of rights. Continuity will not however be maintained by clinging to a record which is no longer in accordance with the facts.

Brief conclusion

Successful planning and development must be based on knowledge. Orderly administration and use of the land as the necessary foundation of human life must equally be based on knowledge. Large-scale maps and the registration of rights in land, and the description of natural resources through these maps are the best basis for all such knowledge. As a record of rights the map has no substitute: it is not for nothing that ecclesiastical threats have been directed against those who move their neighbour's landmarks. The more developed countries and a few less developed countries have recognized these facts and either have adequate maps and land registers or are making them as fast as is practicable. It is not beyond the capacity even of a relatively poor government to map its territories or to register the rights recognized in its land. The money so spent will bring a rich return.

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