Maksudan v Lal [1979] FJSC 32; Civil Appeal 8 OF 1979 (16 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Civil Appeal No. 8 of 1979

BETWEEN

MAKSUDAN & RASULAN
Daughters of Ashraj Shah
(Appellants)

AND

SHYAM LAL.JAGDISH CHAND &
SHAKUNTALA DEVI
sons and daughter of Ram Kissun
(Respondents)

Mr.Iqbal Mohammed,
Counsel for the Appellants
Mr. M. Tappoo for G.P. Shankar,
Counsel for the Respondents

JUDGMENT

The plaintiffs are owners of a native lease 974 known as Tuvu bequeathed to them by their now deceased father. Before his death their father subleased 15 acres of this land to the father of the defendants, the sublease being said to expire in 1972.

The defendants' father died in 1967 and the sublease passed to his widow Kewla Pati.

Evidence was given in 1970 and 1971 (i.e. at least a year before the expiration of the lease) notice was served on Kewla Pati to vacate the land.

Kewla Pati did not vacate the land, she died intestate in 1973 and the defendants have been in occupation of the land ever since.

The plaintiffs have not accepted rent for any period since December 1971 and have attempted to get the defendants to vacate the land several occasions, serving them with further notices in 1976 and 1978.

The magistrate was not impressed with the evidence given for the defendants and has accepted the evidence given for the plaintiffs, in fact there are a number of matters on which the evidence of the second defendant was untrue, where his evidence in court differed from the affidavit submitted to the court on an application for a stay of proceedings. There is also an untrue in the statement of Defence where it was stated that on 19/6/78 (the date stated on the statement of defence) the defendants had already made a full application before the Agriculture Tribunal Board for a tenancy. The defendants have never made such an application themselves, although the Public Trustee, as executors of Kewla Pati's estate subsequently made such an application, not for the defendants, but for the estate (although presumably the defendants would benefit.)

The magistrate refused to grant the plaintiffs' possession of the land solely on two questions of law.

Firstly that notices served on the defendants to vacate the land were not proved to be valid notices, and secondly that the plaintiff should have sued the Public Trustee for possession.

With regard to the notices to vacate, the magistrate was apparently satisfied that notices were served on Kewla Pati in 1970 and 1971 in accordance with section 13(1) of the Agricultural Land Tribunal Act (Cap.242) and it then was. This section has since been amended (by Act 35 of 1976), but the amendments were not made retrospective so we must be concerned with the law as it was in 1972, the year when the lease was due to expire, to determine whether the notices were valid or not to terminate the lease.

Section 13(1) provided that a tenant should be granted extensions of the lease where he was cultivated the land in a manner consistent with the practice of good husbandry, etc.,

"unless written notice of termination has been served by the landlord on the tenant at least one year prior to the expiry of the terms of the tenancy of the first extension, as the case may be, on one or more of the following grounds:-

(1) that the landlord (-------) requires the land for his own use and occupation and that greater hardship would be caused by granting an extension than by refusing it."

Now the plaintiff/appellant has stated/not that she wanted the land for her own use and occupation, but for her children, and there was no evidence before the magistrate on the question of greater hardship. So the magistrate was quite right in saying that there was no evidence from which he could find or even infer that the notices were valid so as to terminate the tenancy which had passed to Kewla Pati. In fact the plaintiffs/appellants do not seem to have taken any urgent steps to recover possession of the land, so it is difficult to draw any conclusion that they were suffering from any hardship by being deprived of the land. When Kewla Pati died in 1973 her intestate estate passed to the Public Trustee presumably for the benefit of the defendants/respondents. In any case the respondents have been occupying the land in question and farming it at least since their father died in 1967.

Further notices to vacate the land (both defective as the law then stood) were served on the defendants in 1976 and 1978, but by then section 13 of the Agricultural Landlord & Tenant Act had been amended, and in accordance with the amended section 13(1) as substituted by the Agricultural Landlord &Tenant (Amendment) Act 1976 the tenants (at this stage the Public Trustee) would be entitled to a further extension of the lease for 20 years-except in certain circumstances that are not relevant here.

The Public Trustee has in fact applied to the Agricultural Landlord and Tenant Tribunal for an extension of the lease. The application has still to be heard, but I see no reason why it should not be granted for the benefit of the defendants.

I have been asked by counsel for the plaintiffs to treat the action as one against the defendants personally as trespassers, they having no personal right to title, but only a prospective right as beneficiaries of Kewla Pati's estate. I do not consider that this approach has any merit. The defendants are clearly occupying and farming the land as they have done at least ever since their father died, and they have a right to expect that the lease will be extended for their benefit for a further 20 years.

Accordingly I dismiss the plaintiffs' claim with costs.

(sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
16th July, 1979.

Messrs. M.T. Khan & Co., Solicitors, Tavua for the Appellants
Messrs. G.P. Shankar & Co., Solicitors, Ba for the Respondents