Shankar v Wati [1997] FJHC 156; Hbc0041j.97s (17 October 1997)

Fiji Islands - Shankar v Wati - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 41 OF 1997

ass=MsoNormal amal align=center style=text-align:center> of an application under Section 169 of Part XXIV
of the Land Transfer Act Cap. 131 for an order for Vacant Possession.

BETWEEN:

RAM SHANKAR
aka MORAN
Plaintiff

AND:

1. LILA WATI
2. BASU DEO NAIR
Defendants

Mr. V. P. Maharaj faintiff
Mr. J. N. Singh for Defendants

JUDGMENT

By Summons the Plaintiff is seeking an order under section 169 of the Land Transfer Act Cap. 131 (the 'Act') that the Defendants give vacant possession of all that piece of land comprised in C.T. No. 27432 Lot 3 on D.P. 6796 containing an area of 2784 square metres situate at Korovou, Tailevu of which the Plaintiff is the registered proprietor (the "land").

Plaintiff's case

The Plaintiff is 64 years of age and is a sickly man having suffered a stroke. He is illiterate except that he is able to sign his name.

The Defendants are Plaintiff's daughter and son-in-law respectively. In 1992 he allowed them at their request to occupy a part of the land as licensee. They built a small wood and iron house thereon. The Defendants gave him $50.00 being rent for the year 1992 which was paid through second Defendant's employer's cheque. That was the only rent received by him and nothing thereafter. Their occupation was temporary. They have been causing unnecessary trouble with the Plaintiff and his sons who live with him.

By letter dated 28 October 1996 they were asked to vacate and were informed that their licence has been revoked. The Plaintiff produced to Court the Defendants' reply (undated) to the said letter in which the first defendant stated, inter alia, that "we are staying legally. Build the house with concern to live a happy life and to us word temporary is born overnight". The Plaintiff denies having signed the "undertaking" referred to by the Defendants as a "forgery".

Defendants' case

In her Affidavit in Reply the first Defendant stated, inter alia, that the Plaintiff gave them a portion of the land and wanted them to build a house and live there for the rest of their life. She deposed that "when I requested from him an undertaking in writing to that effect" he signed a letter dated 14th March, 1992 which is as follows:

"I would like to write this letter because Ram Shankar gave One chain or One Block Land to his daughter Lila Wati and Son-in-law Vasu Dewan Nair. He told us that nobody can tell you pupil to get out off this land I'm the bost of this land. Ram Shankar gave One chain on One Block Land to us forever."

In her affidavit sworn 25 June 1997 the first Defendant said that the $50 which she paid to the Plaintiff at one time was a 'gift' and not 'rent' although she previously admitted that it was for rent. She says that the Plaintiff cannot now eject them from the land after having allowed them to build a house. The Defendants say that they have been "advised by my solicitors and verily believe that they have contractual licence protected by equity from the Plaintiff to occupy the said house and the land for the rest of our lives".

Consideration of the issue

I have considered the submissions made by counsel. Both counsel referred the Court to a number of authorities bearing on the issue before me.

Under s172 of the Act the onus is on the Defendants to show cause why they are refusing to give possession and why an order for possession should not be made against them.

The Plaintiff is the last registered proprietor of the land and that entitles him to bring an action for possession under s169 of the Act. Prior to bringing this action he had served a Notice on the Defendants and this is not denied by them.

On the affidavit evidence before me I find that the Defendants have failed to show cause as required by s172. The interest which they claim to have in the land is not a sufficient cause for the purposes of the application under s169.

I have very carefully scrutinized the letter of 14 March 1992 and particularly the alleged signature of the Plaintiff. I have my doubts that that it is his signature after comparing the signature on the Certificate of Marriage of Lila Wati with that on the said letter and, as alleged, forgery cannot be ruled out. The learned counsel for the Defendants submitted that the Court is justified in comparing the two signatures on the authority of MAHODRA d/o Niranjan and BUDH RAM s/o Jag Deo (Civ. App. No. 6/74 F.C.A.) In any case if the first Defendant was so particular about extracting a letter from the Plaintiff who is her father then she should have over the years taken proper steps to legalize her position in regard to the piece of land she occupied with her husband. I have grave doubts that she is telling the truth. In fact I have a good mind of suggesting that this signature on the said letter ought to be investigated by Police to ascertain whether it is a forgery or not. In any case the Plaintiff is illiterate and a document of this nature should have been properly witnessed after the contents have been explained to him. It appears to me that the signature was obtained from whoever signed it on a blank piece of paper and all the other writings were placed afterwards.

The Plaintiff cannot be divested of his rights over the land as the registered proprietor by mere allegation of the nature put forward by the Defendants.

It appears from the Plaintiff's affidavit evidence that the house is worth $2500.00 and not $5000.00 which the first Defendant wanted. He was prepared to pay her $2500.00 if she did not want to 'dismantle' the house. She declined this offer and has "implemented her threat by forging my signature" the Plaintiff says.

I do not accept the Defendants' version at all that they were allowed on to the land permanently. If that was so they should have taken concrete steps to have that portion of the land transferred into their names more so when she alleges that this is the second time when she came on this land and built a house the second time after the first experience with the Plaintiff. The alleged undertaking is not a sufficient documentary proof of any such right which the Defendants claim vis à vis the registered proprietorship being in the Plaintiff. The first Defendant is definitely lying when she changed her story about the $50.00 which she paid. When caught she changed her version by saying it was a gift to her father.

There are no triable issues here which require adjournment into open Court. I am afraid the lengthy written submission of Mr. Singh is mostly irrelevant to the facts and issues before me.

I am sure there are many instances of this type of dealings, and if all came to Court to defend and question the registered proprietorship, they will be disappointed for they are not good reasons as required under s172 of the Act. Of course, in any case, each case has to be looked at on its own merits. I therefore do not propose to discuss the authorities to which Mr. Singh made reference in his submission except to say that I have considered them.

In the outcome, for these reasons I am not satisfied that the Defendants have shown cause as to why they should remain in possession of the said portion of the land. I therefore order the Defendants to deliver immediate vacant possession of the premises and land occupied by them. The Defendants are entitled to remove their house unless the Plaintiff purchases it at a price to be agreed upon between the parties or at a valuation.

I further order that the Defendants pay costs to the Plaintiff which is to be taxed if not agreed.

D. Pathik
Judge

At Suva
17 October 1997

Hbc0041j.97s