Deuba Points Ltd v Mati [2018] FJHC 1235; HBC358(B).2017 (5 December 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 358 (B) of 2017

BETWEEN

DEUBA POINTS LIMITED
PLAINTIFF

AND

RAJ MATI
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr A Chand [Amrit Chand Lawyers]

DEFENDANT : Mr A Bale [Lal Patel Bale Lawyers]

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 5 December 2018

JUDGMENT
[Section 169 application for vacant possession]

1. This is the Plaintiffs application under Section 169 of Land Transfer Act seeking orders for vacant possession of land described in Certificate of Title’s Number 44528 being Lot 3 on Deposited Plan Number 9703 in the District of “Tokotoko”.
   

The Plaintiff claims to be the last registered proprietor of the land relying on annexure 1 being copy Certificate of Title.

As per the Certificate of Title, the property was transferred to the Plaintiff on 10 November 2016.

The Defendant who is in occupation of the property does not have any consent or permission to occupy the same from the Plaintiff.

Despite being served with a Notice to Vacate and Quit, the Defendant has failed to do so.

2. The Defendant who is contesting the application informs that she knows Vijendra Prasad in relation to the land.
   

Prior to 1998, she with her family lived in an adjoining piece of land which did not belong to her.

On or about June 1994, her husband passed away and she was approached by one Jit Kuar who offered her a piece of land to move to and build a house.

Jit Kuar was the registered proprietor of the property on CT 12769. This was a large parcel of land being 5 acres 1 rod and 36 perches.

Jit Kuar offered her to sell a portion of the land to build her house and live on it.

Defendant claims that Jit told her that Jit would have the land surveyed and a block surrendered with a new title in her name.

On or about 28 May 1998, she entered into a sales and purchase agreement with Jit Kuar for Lot 3 on CT 12769 for a sale price of $2,000. She claims to have paid $1,1660 as deposit with balance in instalments. She claims to have completed the payments prior to the death of Jit Kuar.

She claims to have lost the sale and purchase agreement in the flood.

After the payments, Jit Kuar gave her written consent to have water installed on the property.

The house was built in 1998 by the Latter Day Saints Church and she has been in occupation of the land since.

After the death of Jit Kuar in November 2002, she spoke to her husband Vijendra Kumar and was told that Vijendra is having CT 12769 surveyed and would surrender the several lots.

Upon receipt of the Notice to Quit, she enquired with Vijendra and was told he had sold the land to the Plaintiffs and that she had to move.

According to her, she is not sure how the Plaintiff bought her land since she has been in occupying the last 20 years. Plaintiff had not consulted her prior to purchasing the property.

She has made improvements to the property worth $50,000.

3. Section 169 of the Land Transfer Act reads:

“The following persons may summons any person in possession of land to appear before a Judge in Chambers to show cause why the persons summoned should not give up possession to the applicant:

1. the last registered proprietor of the land;
2. a lessor with the 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 no sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

100. a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”
     

4. Defence available under Section 172 is that:

“the person summoned may show cause why he or she refuses to give possession of such land and, if he or she proves to the satisfaction of the Judge a right to the possession of the land.”

5. The Plaintiff has annexed a certified copy of the title to its affidavit in support and as per the memorial the property was transferred to it on 10 November 2016.
   

This gives the Plaintiff locus stand to bring the proceeding under Section 169.

6. The Defendant claims to have entered into a sale and purchase agreement with the previous owner Jit Kuar. However the transfer did not eventuate. She claims to have fully paid the sale price to Jit and has spent money in constructing the house on the property. The Defendant has been in possession of the land since 1998.
   
7. The property was transferred to the Plaintiff in 2016 and the notice to vacate was not issued until September 2017.
   
8. The Defendant I find has failed to show any right to the possession of the land against the Plaintiff. There is no evidence of fraud on part of the Plaintiff when it had purchased the property.
   

She had entered into the sale and purchase agreement in 1998 and Jit Kuar had passed away in November 2002 [paragraph 8 of the defendant’s affidavit in opposition]. She could have since then sought declaration from Court as to the sale and purchase agreement and have the title transferred under her name.

She has if any cause of action against Jit Kuar and her Estate but not the Plaintiff.

9. In the circumstances, I shall make an order in favour of the Plaintiff.
   
10. Raj Mati is to give possession to the Plaintiff of property comprised in Certificate of Title’s Number 44528 being Lot 3 on Deposited Plan Number 9703 in the District of “Tokotoko”.
    

Execution of the above order is stayed for 06 months.

Further orders are made to allow Raj Mati to remove the structure/s she had constructed on the property.

11. Given the circumstances I make no orders for cost. Parties to bear own cost.
    

................................
Vandhana Lal [Ms]

Acting Master

At Suva.