Khan v Khan [1992] FJHC 14; Hbc0029d.92s (18 March 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 29 OF 1992

Between:

ZAINAB KHAN
w/o M.T. Khan
Plaintiff

- and -

MOHAMMED RIAZ KHAN
s/o M.T. Khan
Defendant

Mr. V. Parmanandam for the Plaintiff
Mr. M. Raza for the Defendant

RULING

This is an application for an order for immediate vacant possession brought by the plaintiff against the defendant in what can only be described as rather unfortunate circumstances.

The parties are mother (plaintiff) and son (defendant) respectively and they both live in a residence constructed on the land. It is not known how long the parties have been living together but there can be no doubting that relations between them have deteriorated to such an extent that the plaintiff has found it necessary to institute these present proceedings against her own son with a view to evicting him from the house.

It is difficult to extricate one-self from the closeness of the relationship between the parties but in just such a situation it is especially imperative that the court should be guided by the law and nothing else.

The plaintiff seeks the order on the principal ground, that she is 'the last registered proprietor of the land' in question. She has also through her solicitors served a 24 hour 'notice to quit' upon the defendant dated the 27th of January, 1992.

The defendant for his part denies that he occupies the premises 'on licence' and instead seeks to show cause for his refusal to vacate by asserting that he has some form of 'tenancy' arising from his payment of some household bills coupled with the assistance he has rendered in maintaining the property.

I note that it is not denied that the defendant/son is 'aged over 21 years and is in gainful employment' and although the contents of the defendant's affidavit has not been denied by the plaintiff, nevertheless, the burden of satisfying the court that he has a right to the possession of the land rests fairly and squarely upon the defendant.

In this regard having carefully considered all material aspects of the defendant's affidavit (and there is a great deal that is immaterial), I find that I am not at all satisfied that he has established a right to possession of the land.

Needless to say the non-exclusive nature of the defendant's occupation of the house and the non-payment of any rent lead me to the inescapable conclusion that he is a 'mere licensee' without any estate or interest in the property.

Neither am I persuaded that the payment of household bills and maintaining the property are anything more than would be expected of an able-bodied, gainfully employed person living rent-free in a family household.

In the circumstances the plaintiff's application succeeds and an order for immediate vacant possession is hereby granted with execution stayed for a period of 7 days.

(D.V. Fatiaki)
JUDGE

At Suva,
18th March, 1992.

HBC0029D.92S