Bhan v Sahaye [2002] FJHC 228; HBC0215.2002 (4 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 215 OF 2002

BETWEEN:

CHANDAR BHAN
Plaintiff

AND:

SANDHYA SAHAYE
Defendant

Mr. H. Nagin-Counsel for the Plaintiff
Mr. S. Chandra-Counsel for the Defendant

JUDGMENT

By an originating summons dated 22nd May 2002, the plaintiff is seeking an order for vacant possession under Section 169 of the Land Transfer Act Cap 131 in respect of a piece of freehold land comprised in Certificate of Title Number 41/4053 and known as Block 2 Deuba (part of) on D.P. 3575 in the district of Serua in the island of Viti Levu. The plaintiff is the registered proprietor of the said land.

In support of the application the plaintiff says that the defendant is illegally and unlawfully occupying the said land and has built a house upon the land. The defendant was served with a notice of quit dated 22nd April 2002 requiring the defendant to deliver vacant possession within seven days but the defendant has failed to do so.

The defendant filed two affidavits in reply – one from her and one from her father Kadam Raj. She swore that the plaintiff’s ownership of land is being challenged by Vidya Wati in the High Court Action Number 276 of 1997, that she has built a dwelling house 8 metres by 6 metres with the approval and consent of the plaintiff, that her father was the legal tenant of the plaintiff and the plaintiff had promised to convey the portion of the land to her and her father "upon completion of the house", that the house was built in 1987 and she estimates the value at $14,000.00.

She also says on a recent visit from the USA the plaintiff promised to convey the land in question to her upon payment of $1,000.00.

Her father in his affidavit inter alia swore that he and his brother Dharam Raj were occupying the land in question and the plaintiff promised them to convey the land to him upon payment of a nominal sum because of development carried out by them. In 1985 he decided to convey his share of the land in question to his daughter Sandhya Sahai before she built her house. He alleges the notice to vacate is too short.

In reply the plaintiff filed two affidavits sworn by the plaintiff and one from a clerk from Sherani & Company, Ritesh Chandra Singh. In his reply the plaintiff says that the defendant showed interest in buying the land and he told her the price was $20,000.00 and she could contact her solicitors Messrs Sherani & Company.

There is no dispute that the plaintiff is the last registered proprietor of the land in question. As such he is entitled to bring these proceedings.

Once a summons is served on the defendant, Section 172 imposes an onus on the defendant to show cause why he should not give possession. In JAMNADAS & CO. LTD. v. PUBLIC TRUSTEE AND PRASAD STUDIOS Civil Appeal 39 of 1972 the Fiji Court of Appeal said:

"Under Section 172 of the Act the Judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession and it is also provided that the Judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a plaintiff to take any other proceedings to which he may otherwise entitled."

The defendant is refusing to deliver possession on a number of grounds.

First, she says there is a case pending between the plaintiff and Vidya Wati regarding this land in which ownership of property is being challenged. The plaintiff says that that action has been discontinued. It appears from what I was told from the bar table that efforts are in place to have that discontinued action reinstated.

Even if there were an action pending which challenged the plaintiff’s ownership of property, it would not necessarily help the defendant. The issue is who is the registered proprietor now. The mere filing of an action by an unrelated third party challenging the ownership does not affect the indefeasibility of title under the Torrens system of land registration until the action is successfully disposed of. The principle of indefeasibility of title is well explained by Edwards J. in FELS v. KNOWLES [1906] NZGazLawRp 66; (1906) 26 NZLR 604 at 620 as follows:

"The cardinal principle of the statute is that the register is everything, and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world."

So in the absence of fraud the transferee gets an indefeasible title. There are no particulars of fraud given in the affidavit filed on behalf of the defendant. The defendant is not even a party to the other proceedings where allegedly Vidya Wati is the plaintiff. I therefore find that this ground fails.

The defendant also submitted that she had carried out development on the land by building a house in 1987 and the plaintiff had promised to convey the land to her and her father. The plaintiff denies the allegation. There is no memorandum in writing to this effect. If there was an arrangement for conveyance of land to the defendant, one wonders why the defendant left it till now without having made any enquiries from the plaintiff for the last fifteen years about the transfer. If the defendant believed that she had negotiated a valid agreement with the plaintiff in 1987 or thereabouts, she should have taken steps to have the transfer of land implemented or give some explanation as to why she did not do so for such a long time.

The entire allegation is too vague to establish any right to possession. She does not say what the price was, when was it to be paid, how was it to be paid and the area of land in question or if any survey had been done. These are significant factors in any sale of land.

To succeed the defendant would need to show that a binding agreement existed between the parties. All the court has before it are some nebulous allegation of existence of an agreement. I am not satisfied that such an agreement existed.

In SUBRAMANI and MARIA v. DHARAM SHEELA and 3 Others (1982) 28 FLR 82 the grandmother had transferred the property to the respondents in 1969. It was conceded that the appellant had been in possession of about one rood of land. The appellant contended that the grandmother’s son acting as her agent had verbally leased one rood of land to him for house site with annual rent of ten shillings with option to purchase within twenty five years for 150 pounds. Appellant built a house worth $3,000.00 and paid rent till 1968 after which it was tendered but not taken.

Vacant possession was ordered despite the fact that the appellant had taken an action in the High Court for declaration as to the rights of appellant to remain on the land. The order for vacant possession was upheld on the basis of indefeasibility of title. The Court of Appeal at page 85 said:

"This Court must therefore hold that the title of the respondents as registered proprietors is not subject to any unregistered encumbrances such as those put forward on behalf of appellants."

So here in DHARAM SHEELA despite a pending action and despite a claim that the appellant had option to purchase, the Court ordered vacant possession. It effectively counters two arguments put forward by the defendant.

The third argument put forward by the defendant is short notice. She was given seven days notice to quit. She is not a tenant so she cannot invoke the provisions of Section 89 of the Property Law Act Cap 130 requiring notice of particular duration normally equal to one rent period. The defendant has not shown any provision in law that says she is entitled to a notice of longer length. So this argument also fails.

The defendant therefore has failed to discharge the onus that is on her under Section 172 of the Land Transfer Act to show cause why she should not deliver vacant possession to the plaintiff.

I therefore order that the Defendant to deliver immediate vacant possession to the plaintiff of the land subject of these proceedings. The defendant is to pay plaintiff’s costs to be taxed if not agreed.

{Jiten Singh }
JUDGE

At Suva
4th October 2002