Lakshmi v Goundar [2018] FJHC 516; HBC52.2016 (13 June 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 52 of 2016

BETWEEN : DHAN LAKSHMI aka DHAN LATCHHMI aka DHAN LACHMI as administrix in the Estate of RAM CHANDAR

PLAINTIFF

AND : JIANKI GOUNDAR and ROHIT KUMAR both of Qelewaqa, Labasa

DEFENDANT

Counsel : Mr. A. Kholi for the Plaintiff
Mr. A. Sen for the Defendants
Date of Hearing : 15^th and 16^th February, 2018
Date of Judgment : 13^th June, 2018

JUDGMENT

INTRODUCTION

1. The Plaintiff institute action against the Defendants for eviction. The Plaintiff is claiming on the basis of instrument of tenancy granted by ILTB. The instrument of tenancy is issued in terms of Agricultural Landlord and Tenant Act (ALTA). The said instrument of tenancy includes a sketch plan which states ‘all that piece of land shown for the purpose of identification only on the attached plan...’. The area is given as 9.4093 ha as an approximate figure. The Plaintiff had engaged a private surveyor and prepared a survey plan and according to the said plan there are two occupants on the land. The landlord, ILTB refused to approve said surveyed plan. It was approved by Town and Country Planning and valid for two years from 2015.The Defendants are residing on two locations on the said plan. According to the evidence of ILTB the area where Defendants are residing needs to be excluded in order to approve the surveyed plan.
   

FACTS

2. Following facts are admitted
   1. Plaintiff is the administratrix of the estate of late Ram Chandar.
   2. Late Ram Chadar passed away on 23^rd April, 2013 and Letters of Administration of the estate was granted to Plaintiff on 7^th October, 2013.
   100. The Estate of Ram Chandar has been issued Instrument of Tenancy No. 10946 for an area of approximately 9.4093.
        
3. Both parties filed a common bundle of documents and instrument of tenancy No. 10946 is contained in that and it was marked as P2. It was granted to late Ram Chandran who was the husband of the Plaintiff.
   
4. According to the said instrument of tenancy, it was granted to late Ram Chandran, for 30 years from 1.7.2007 and the said grant was subject to ALTA and the conditions contained therein.
   
5. There is a sketch plan attached to the instrument of tenancy and the area is given as approximation figure as 9.4093 ha.
   
6. The said plan contained in the instrument of tenancy does not indicate any dwellings.
   
7. The Defendants state that they are residing outside the area of instrument of tenancy No. 10946.
   
8. At the hearing Plaintiff gave evidence and he called the surveyor who prepared the survey plan which is part of agreed documents.
   
9. According to the plan prepared by the surveyor both Defendants are occupying inside the area of instrument of tenancy No. 10946.
   

ANALYSIS

10. The Plaintiff’s action is based on instrument of tenancy No. 10946 which had not shown exact area or boundary in terms of Section 54 of ALTA.
11. Though instrument of tenancy is issued in terms of ALTA there is no specific demarcation of a boundary of agricultural holding and or pointing out of such area by ILTB who was the landlord in this instance.
    
12. Though clear boundaries were not shown at the commencement of the period under instrument of tenancy, it can be done subsequently as it may not be pragmatic to grant every tenant a surveyed plan at the time of grant, considering the death of surveyors in Vanua Levu.
    
13. The area is depicted on a sketch attached instrument of tenancy No. 10946 and it is stated as approximately 9.403 ha. So a flexibility is allowed and this needs to be done with the concurrence of landlord, ILTB.
    
14. Though it is not mandatory to survey the land contained in the instrument of tenancy by a surveyor of landlord, it is appropriate to have such survey done with the concurrence with landlord. If not there will be instances where the tenants will face difficulties to evict third parties that occupy the land shown in the instrument of tenancy.
    
15. The landlord of the instrument of tenancy No. 10946 refused to approve the survey plan prepared by the surveyor engaged by the Plaintiff. If the refusal was unreasonable the Plaintiff can seek redress, from court.
    
16. The Plaintiff had obtained approval from Town and Country Planning for the plan prepared by the surveyor but this is cannot dispense with the requirement of the approval of the landlord.
    
17. The reason given for not approving it was that landlord required the parts of land where Defendants are residing be excluded. According to the evidence of the official of ILTB, was the policy of ILTB.
    
18. The witness who gave evidence on behalf of ILTB confirmed this position.
    
19. The Defendants produced an alternate survey, but it was not prepared by a surveyor and it was called ‘GPS Survey’, which is not as accurate as a survey done on the ground.
    
20. The said witness also said GPS survey was not accurate and it cannot be relied upon and it was subject to a survey. So the evidence called by the Defendants indicated that GPS Survey was unreliable and subject to survey on the ground.
    
21. So, the Plaintiff who derived his right from the instrument of tenancy cannot rely on survey prepared by a private surveyor, unless it is approved by landlord for an action for eviction. In the instrument of tenancy, it is stated that sketch plan is only for identification purpose.
    
22. The sketch plan and area of 9.403 ha are only approximate indications and in order to obtain exact right over others the survey needs to be in compliance with the landlords requirements. The court cannot intervene in such a situation to grant the Plaintiff eviction of Defendant, which will be contrary to the policy of the ILTB regarding encroachments to area shown in sketch plan (without a surveyed plan).
    
23. The Plaintiff was unaware of the encroachment till the survey was concluded, and this also indicate that Defendants were living in the respective locations without knowing that they had encroached the area contained in sketch in the instrument of tenancy No. 10946.
    
24. The Plaintiff is unable to institute an action for eviction when the landlord refuses to approve the survey plan prepared by the surveyor.
    
25. The Plaintiff’s action is dismissed. No cost granted considering the circumstances of the case.
    

FINAL ORDERS

1. The writ of summons and statement of claim is struck off.
2. No costs
   

Dated at Suva this 13^th day of June, 2018

....................................
Justice Deepthi Amaratunga
High Court, Suva