Sharma v Tabuela [2004] FJHC 183; HBC0026.2004 (15 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0026 OF 2004

BETWEEN:

TILAK RAM SHARMA
PLAINTIFF

AND:

PENIASI RABESA TABUELA
DEFENDANT

Ms L. Vaurasi for Plaintiff
No Appearance for Defendant

JUDGMENT

At issue in this case is who are the people who can issue proceedings for possession under Section 169 of the Land Transfer Act Cap 131.

Section 169 of the Act reads:

“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 registered proprietor must be someone whose interest on the land is registered with the Registrar of Titles under the provisions of Land Transfer Act. A person cannot be registered as a proprietor of a piece of land under the provisions of the Land Transfer Act unless the land has been surveyed. Those plans must comply with the provisions of the Surveyors Act – see Regulation 16 and Fourth Schedule.

As far as Section (b) and (c) are concerned they apply where there is a landlord tenant relationship. The words ‘lessee’ mean proprietor of a lease or sublease and lessor is a proprietor of the land leased and includes a sublessor - Section 2. Proprietors mean the registered proprietor of land or any estate or interest therein – Section 2. Registration in title is the key to applications under Section 169.

The plaintiff in the present case holds no registered title. He says he is proprietor of Lot 39 on Certificate of Title 18548. CT 18548 has an area of 8 acres 3 roods 11 perches. The last registered proprietor of that is HIMALAYA PARVAT COMPANY LIMITED not the plaintiff. It appears that some form of subdivision has been carried out on this entire land and lots sold to various people. It is not clear whether the subdivided lots have been surveyed or whether it is merely a paper subdivision. In any event Ms Vaurasi could not point out where Lot 39 on the plan was. The court is not even aware of the area of Lot 39.

The defendant has not appeared in court. On the facts I cannot be certain where the plaintiff’s lot is or whether the defendant is in fact on Lot 39. Ms Vaurasi submitted that the spirit of Section 169 is that anyone entitled to possession of land can use Section 169(b) and (c) even if lessors do not hold registered leases. Her submission flies in the face of the meaning given to the words ‘lease’ and ‘lessor’ in Section 2 when read in conjunction with the meaning of the word ‘proprietor’.

The plaintiff does not hold a registered title under the provisions of Land Transfer Act. He is not a lessor under the provisions of Land Transfer Act. He therefore cannot being this action. Himalaya Parvat Company is the proper entity which can bring proceedings under Section 169. The application is therefore dismissed.

[ Jiten Singh ]
JUDGE

At Suva
15th March 2004