Raj v Prasad [2003] FJHC 324; HBC0075.2002S (1 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0075 OF 2002

BETWEEN:

KHEM RAJ
s/o Ram Prasad
PLAINTIFF

AND:

CHANDRIKA PRASAD
s/o Sukh Raj
DEFENDANT

Mr. V.P. Ram - For the Plaintiff
Mr. A. Sen - For the Defendant

JUDGMENT

This is an application pursuant to the provisions of Section 169 of Land Transfer Act for vacant possession. The plaintiff is the registered proprietor of Certificate of Title 19012 having an area of 12 acres 0 rood and 27 perches. It is an agricultural land situated at Tabia, Labasa. He became the registered proprietor on 23rd October 2001.

The endorsements on the title show that the plaintiff’s predecessor in title had granted a lease to the Defendant on 6th December 1973 which was a lease for ten years from 1st January 1970 being lease number 131001. The defendant was granted another lease on 10th May 1989 from 1st January 1980 being Lease Number 271548.

The application was opposed. The defendant in his affidavit deposes that he does not have to give vacant possession as civil action 48 of 2001 is pending in the High Court and that he is the lawful tenant and therefore is entitled to remain in possession. A copy writ of summons in Civil Action 48 of 2001 was annexed to the affidavit of the defendant. It is issued out of court on 26th October 2001 that is three days after the plaintiff became registered as proprietor of CT 19012. The defendant in the present action is one of the plaintiffs in that action but the defendant there is one Sadhulal Bhashkar, the predecessor in title to the present plaintiff.

Section 169 of the Land Transfer Act Cap 131 gives list of persons who may avail themselves of the provisions of the Section for vacant possession. It also provides that it is the person summoned who must show cause why he/she should not deliver vacant possession. Section 169 is in the following terms:

'169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:

(a) the last registered proprietor of the land

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.'

The defendant alleges that he is the lawful tenant. The plaintiff in his affidavit in reply deposed that he granted no tenancy or occupational rights to the defendant and goes on to say that the lease number 271548 was granted to the defendant by Sadhulal Bhashkar and it expired on 31st December 1999 and it was a statutory renewal under the provisions of the Agricultural Landlord and Tenant Act (ALTA) Cap 270. He refers to Clause 14 of the lease that reads:

'The tenant specifically agrees that this tenancy is made and given to the Tenant pursuant to the provisions of the Agricultural (Landlord and Tenant) Ordinance and that the same is a renewal of the tenancy which by law expired on the 31st day of December, 1979.'

The memorials on the title also point to the fact that lease 271548 was a renewal or extension of term of lease 131001 which was for ten years from 1st January 1970 and therefore expired on 31st December 1979. The first lease therefore had expired on 31st December 1979. He was given a statutory renewal under the provisions of Section 13 of the ALTA the relevant portion of which reads:

'13(1) Subject to the provisions of the Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of the Act in force before the commencement of the Agricultural Land and Tenant (Amendment) Act 1976 shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of 20 years ...'

On the basis of affidavits and annexures I am satisfied that the Lease Number 271548 was an extension for a period of 20 years from 1st January 1980 of Lease Number 131001 which expired on 31st December 1979. The defendant is not entitled to another extension. His lease expired on 31st December 1999 and the plaintiff is entitled to vacant possession. I am certain the defendant knew it was an extension. His counsel in a letter dated 11th June 1986 says 'our client was waiting for the renewal of his lease'. Mr. Sen for the defendant raised the issue of notice. There is no requirement for notice to quit where the term of lease has expired – see paragraph ‘c’ of Section 169. The tenant or lessee is expected to know that his lease has expired.

Mr. Ram further contended that even if there was a need for notice to quit to be given, it was given by the predecessor in title Sadhulal Bhashkar on 25th March 1997. A copy of that Notice to quit is annexed as annexure B to the affidavit in reply of the plaintiff. It is a notice given to the defendant for non-payment of rent and it gives him three months to pay arrears of rent or the lease would be deemed terminated. The notice to quit complied with the provisions of Section 37(1) of the ALTA the relevant portion of which reads:

'37(1) A landlord may terminate his contract of tenancy and may recover possession of an agricultural holding ...

(c) by three months’ notice to quit –

(i) ..... ..... ..... .....

(ii) if any part of the rent in respect of the holding is in arrear for a period of three months or more ...'

The annual rent was $300.00 and the arrears were $2630.00 which is rental for a period close to nine years. This rent has not been paid so the tenancy would be lawfully terminated.

The defendant further argued that he has filed civil action 48 of 2001 and therefore he has right to possession. In that action the defendant is not the same as the plaintiff in the present action.

If the defendant thought that Khem Raj was a proper party, he should have been joined as a party. I also note that the defendant is claiming rights on basis of Lease Number 271548 in that action. I have already found that Lease Number 271548 was a statutory renewal of an earlier lease under ALTA. The mere filing of an action does not ipso facto give one a right to possession to land until the court makes a finding in one’s favour.

In Gyan Prakash v. Laksmi Prasad – Civil Appeal 42 of 2002S the Fiji Court of Appeal on page 9 said 'there is ample authority to the effect that a mere assertion of a defence is insufficient to prevent the making of a summary judgment'.

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.'

I am not satisfied that the respondent has proved any ground for his right to possession or right to remain on the land in question. I therefore order that the defendant provide immediate vacant possession of all the land comprised in Certificate of Title being Lot 10 on Deposited Plan 3330. I further order the defendant to pay costs that I summarily fix at $500.00.

[ Jiten Singh ]
JUDGE

At Labasa

... August 2003