Wati v Prasad [1999] FJHC 132; Hbc0044d.92b (22 March 1999)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 44 OF 1992

Between:

1. SANTA WATI
d/o Kali Charan
2. BISUN DEO
s/o Jag Deo
Plaintiffs

and

AMBIKA PRASAD
s/o Ram Piyare
Defendant

Mr. A. Seru for the Plaintiffs
Messrs. A. Kohli & Raman Singh for the Defendant

JUDGMENT

By Summons dated 9 December 1992 the plaintiffs sought an order for vacant possession under section 169 of the Land Transfer Act Cap. 131 in respect of portion of land occupied by the defendant known as Matasawalevu in the Island of Vanua Levu being Lot 3 on Plan No. 5800 and being piece of land comprised in Certificate of Title No. 27109 (the "said land").

On 28 April 1995 after the hearing of the Summons I gave judgment in the following terms:

"For the above reasons the title of the registered proprietors will prevail over anything that D has said and with no registered instrument and therefore there will be an order that the defendant do give vacant possession within three months from the date hereof to the Plaintiffs of the portion of the said land occupied by him being part of land comprised and described in C.T. 27109 being Lot 3 on D.P. 5800 upon payment by the Plaintiffs to the defendant of the value of improvements, if any, effected by him on the said land which are to be valued by a registered valuer/or agreed upon within one month from the date hereof. The defendant will also pay the plaintiffs' costs to be taxed if not agreed."

The defendant appealed to Court of Appeal and on 27 February 1998 the Appeal Court made orders as follows:

"Whether or not the appellant had an equitable interest and whether or not there was fraud by the respondents in the manner alleged are matters which are disputed by the respondents in their affidavits. These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial. We have concluded that the trial judge fell into error in this regard. We allow the appeal and set aside the order of possession and costs in the Court below. We further order that this matter be set down for trial in the High Court and cost of the application in that Court be cost in cause. The appellant will have costs of this appeal."

As ordered there was a hearing when evidence was given for the plaintiffs by the first plaintiff SANTA WATI (PWI) herself and TAHIR ALI (PW2) President of Matasawalevu Co-operative Society Ltd.

For the defendant evidence was given by AMBIKA PRASAD the defendant himself and AMI CHAND a farmer.

I shall now consider the issue in this case in the light of all the evidence adduced before me.

There is no doubt that the plaintiffs are the registered proprietors of the said land. The circumstances under which the defendant came to be on the land are as stated by the plaintiff in her evidence and also by her witness the PW2 in so far as he knows about the matter.

PW2 said that the defendant did not pay any money to the cooperative Society in respect of any land. I accept the testimony of PWI and PW2 in toto and I regard them as witnesses of truth. I find that the plaintiffs have properly become the registered proprietors of the land which gives them an indefeasible title under the Torrens System. In view of these findings of fact the plaintiffs are entitled to bring proceedings under the said s169.

As Mr. Sen says in cross-examination nothing in the nature of fraud was put to the 1st plaintiff as was done previously in the affidavit. The only question put to her was in relation to payment of deposit of $700 contributed by the defendant but this was rejected outright by PWI. I am also not satisfied on the balance of probabilities that the defendant contributed anything towards the purchase of the land. From the evidence it is clear the issue of the alleged dealings of the defendant were with PW1's father Kali Charan who is dead now. There is no note or memorandum of any kind to show that the defendant has an equitable interest in the land.

The defendant testified that he paid half the purchase price for the whole of the land, namely, $700 to the Society and a receipt was issued. He said his name was on the receipt but it was crossed out and he does not know by whom. The original of the alleged receipt has not been produced by either the Plaintiffs or the defendant. Hence there is no admissible documentary evidence that the defendant was the one who actually paid a portion of the purchase price and is entitled to a share in the land. There is no evidence from the Society to show that the defendant had at any time been regarded as a joint purchaser of the land along with Kali Charan (PW1's father).

The defendant's witness Ami Chand testified that he prepared the receipt for his father who was secretary of the Society. The receipt he said was in the name of Kali Charan, Santa Wati and Ambika Prasad but neither the original nor a carbon copy of the alleged receipt was tendered to Court.

On the whole of the evidence there is nothing to show that at any time the defendant had any interest in the land. That is the correct position.

To conclude, I find that the plaintiffs had no knowledge of the defendant's alleged interest in the land when the property was transferred to her by Kali Charan. In fact the defendant admits that the first plaintiff was not a party to any alleged arrangement between him and Kali Charan. The defendant has neither alleged any fraud on the part of the plaintiffs nor were any questions directed by the defendant's counsel on the alleged fraudulent transfer to the plaintiffs. On what constitutes 'fraud', it has been considered by me in considerable detail in my previous judgment herein. The evidence before me does not disclose any elements of fraud on the part of the Plaintiffs.

On the evidence before me I am not satisfied on a balance of probabilities that either the defendant paid the sum alleged to have been paid by him or that he has any beneficial or equitable interest in the land by virtue of him having been brought on the land by the deceased Kali Charan.

Finally, if the defendant had paid a portion of the purchase price and was entitled to an interest in the land then he should have had it reduced to writing as required under section 59(d) of Indemnity, Guarantee and Bailment Act Cap. 232.

For these reasons the Plaintiffs succeed on their Summons under the said section 169. There will therefore be an order for immediate vacant possession of the land with costs against the defendant to be taxed if not agreed. It is further ordered that either the Plaintiffs pay the defendant the value of improvements, if any, effected by the defendant on the land which are to be valued by a registered valuer with the cost of such valuation to be borne by the defendant within two months from the date of this judgment or the defendant be permitted to remove any improvements he has effected on the land.

D. Pathik
Judge

At Labasa
22 March 1999

HBC0044D.92B