Bali v Lal [1979] FJSC 50; Civil Action 143 of 1979 (24 August 1979)

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

Action No. 143 of 1979

BETWEEN

RAM BALI
s/o Kampta Prasad
Plaintiff

AND

JASWANT LAL
s/o Gulabdas
Defendant

Mr. G.P. Shankar, Counsel for the Defendant
Dr. S.M. Sahu Khan, Counsel for the Plaintiff

JUDGMENT

This is an application for possession of a shop under S.169 L.T.A. 1971.

The plaintiff's affidavit alleges that he is the last registered owner of a plot of land in Ba town on which stands a double-story building with 4 shops on the ground floor and offices on the upper floor. He says the defendant is a monthly tenant of one of the shops.

A notice to quit dated 28.2.78 required the defendant to vacate the shop on 31.3.79 but the defendant has ignored it.

The defendant's affidavit points out that the certificate of title, annexed to the plaintiff's affidavit, reveals that there are several co-owners and that the plaintiff holds only ¹/₁₂th undivided share. Annexed to the defendant's affidavit is a document purporting to be signed by three of the co-owners holding an undivided ½ share that they have no objection to the defendant continuing in the shop as a tenant.

The plaintiff filed a further affidavit accepting that he was only a co-owner but alleging that his co-owners allocated the shop to him as his own beneficial share and that that arrangement has existed for a long time.

Mr. Shankar for the defendant submits that where there are joint lessors and an action for possession must be maintained by them all. He referred to Kanji Joggia v Bhagwandas 12 F.L.R. 180 and submitted that all the persons shown as registered owners in the certificate of title should have been joined as plaintiffs. I have little doubt that Mr. Shankar's approach is correct if it is shown that they or some of them joined as co-lessors of the shop in question.

Dr. Khan for the plaintiff argues that notwithstanding that the legal title is vested several persons there is no objection to one of them holding the entire beneficial interest of a portion and leasing it as he wishes. He relied upon Roberts v Holland [1893] UKLawRpKQB 67; 1893. 1. Q.B 665 and Tepeeni v Smith 29. N.Z.L.R. 171. No doubt Dr. Khan's submissions are tenable provided it is shown that the plaintiff holds the shop for his sole beneficial interest.

As will have been observed each party relies upon the facts he himself swears to and them applies the law to these facts. It would seem then that there could be some doubt as to what are the facts.

Under S.169 the persons entitled to institute proceedings for possession are in three groups (a), (b) & (c). Group (a) is the last registered proprietor of the land. It would seem that in this action there is not one current registered proprietor on the certificate of title but several. If the action is to be maintained on the basis that it is brought by the last registered proprietor then they would all have join as plaintiffs. The certificate of title shows that they hold in undivided shares.

Therefore, there is nothing in the certificate which could lead one to conclude that the plaintiff, and only the plaintiff, is the last registered proprietor of the shop he seeks possession of. Of course there is no reference to the block of property in the title let alone to the shop occupied by the defendant but only to a plot of land which is identified by reference to an endorsed plan. Thus in so far as he is a registered proprietor the plaintiff is the registered proprietor of a ¹/₁₂ undivided share of a plot of land and if he wants possession under S.196(a) he must be joined by his co-owners. In my view he cannot succeed simply on the allegation that he is a last registered owner as alleged in his original affidavit dated 5.6.79.

After the defendant had filed his affidavit revealing that the plaintiff was not the sole registered proprietor of the plot of land the plaintiff shifted his ground and filed a further affidavit on 1.8.79. In it he says that the registered co-owners of the plot vested in him the sole beneficial interest in the shop in question and that his co-owners now have no right to agree that the defendant may continue in possession thereof as a tenant. He says that the arrangement apportioning the shop to him as a beneficial share out is one of long standing.

It would seem that the plaintiff now seeks to bring himself with the group mentioned in S.169(c) of the L.T.A. which reads that the action for possession can be maintained by -

"(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."

It would be the first of those alternative on which the plaintiff relies because his original affidavit alleges the service of a month's notice to quit.

In order to establish that he is a lessor entitled to claim possession of the shop the plaintiff would have to show that the sole beneficial interest in that undivided share had been vested in him by his co-owners to manage for his own purposes. A bald allegation to that effect made in an affidavit can be no substitute for proof that such a state of affairs exists. If there were such an arrangement it is unlikely that the defendant would be aware of it. Summary actions are not intended to dispense with proof and the plaintiff should produce proof beyond his own unsupported assertion that the beneficial interest is divided although the legal title is of undivided co-ownership. The defendant would scarcely be in a position to admit the truth of such an allegation which may well be inaccurate and contrary to the lawful interests of other co-owners who have not been joined as parties to the claim for possession.

The certificate of title shows that the plaintiff's name did not appear thereon as a co-owner until 9th November 1978. He sued for possession on 7.6.79 and his original supporting affidavit was sworn on 6.6.79. His notice to quit is dated 28.2.79. Those facts contrast very strongly with his second affidavit in which he alleges that he had been sole beneficial owner of the shop for a long time. Between purchasing his ¹/₁₂ share on 9.11.78 and giving notice to quit on 28.2.79 the plaintiff would scarcely have had time to negotiate with his co-owners for beneficial ownership of the shop especially considering the nature of his ¹/₁₂ share which I will mention later. Even his unproven assertions lack an air of credibility.

There is nothing in the affidavit to show whether the plaintiff was the original lessor of the shop; the amount of rent; and the day of the month on which the tenancy commenced so as to show whether the notice to quit was properly worded, of proper duration and properly served. No affidavit is annexed to show that the notice to quit was served in time to be effective.

It is worth noting that what the plaintiff received, according to the certificate of title was not really an undivided 12th of the whole. He was one of three purchasers who between them received from one Amrasi an undivided quarter of the whole. How was it resolved that the plaintiff's ¹/₃ share of an undivided quarter should be the shop?

I cannot call upon the defendant to show cause to a claim brought under S.169(c) of the Act on such unsatisfactory affidavits.

In my view the plaintiff should prove his claim under S.169(c) by an action in which he would adduce evidence of the allocation to him of the sole beneficial interest in the shop and the existence of a landlord and tenant relationship between himself and the defendant and the relevant terms of the tenancy.

The plaintiff's claim is dismissed.

(Sgd) J.T. WILLIAMS
JUDGE

LAUTOKA,
24th August, 1979.