Maganbhai v Dukhi [1979] FJSC 51; Civil Action 125 of 1979 (27 September 1979)

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

Action No. 125 of 1979

BETWEEN

MAGANBHAI
f/n Prabhudas Patel
Plaintiffs

AND

DUKHI
f/n Ram Lal
Defendants

Mr. B.C. Patel, Counsel for the Plaintffs
Mr. M. Tappoo for Messrs. G.P. Shankar & Co. for the Defendants

JUDGMENT

This is an application under Section 169 of the Land Transfer Act in which the registered owners of a block of shops seek possession of one of the shops from the defendants.

The plaintiff's title is not in question nor is in question that the defendant has no registered or even registrable title.

The defendant claims to have taken over the interest of one Ram Geer in the shop. Interest in the shop is said to have been assigned informally several times and eventually the defendant claims to have purchased Ram Geer's interest together with the contents of the shop.

It is not now in dispute either that the formal tenancy agreement said to have been assigned terminated on 31/10/77.

It is not denied by the plaintiff that he was aware of the defendant's occupation of the shop. He must be presumed at least to have approved it, and even raised the rent payable from $100 per month to $114 per month.

It is the plaintiff's case that the defendant, at least from 1/11/77, was only a monthly tenant, and that the monthly tenancy was terminated by a letter dated 28/9/78, when vacant possession was demanded by 31/10/78.

Under Section 169 of the Land Transfer Act the plaintiff is entitled to take out a summons for eviction and the court must grant an order of eviction unless the defendant satisfies the court that he has a right of occupation.

The defendant has no documentary proof of any such right but he claims in an affidavit that before purchasing Ram Geer's interest he saw the second named plaintiff and the second named plaintiff not only accepted him as a tenant at the rental of $100 per month but also agreed that on the expiration of the tenancy in October 1977 the defendant would get a new lease or tenancy up to 31/12/81 for which he would pay $1000 and pay increased rental of $114 together with such increase as may be approved by the Prices and Incomes Board. The defendant said that on that understanding he purchased Ram Geer's interest, and there is no dispute that he did pay rent of $114 per month from the end of October 1977.

I note here that what the defendant now says in his affidavit is not what his lawyers said in their letter of 30/10/78. There it is alleged that Ratilal told the defendant that Ram Geer's tenancy was until 1981, and it was on this basis that the defendant purchased Ram Geer's interest. Now he alleges that Ratilal offered him a new tenancy.

However, whether or not there was such a verbal agreement the defendant hasn't paid $1000 to the plaintiff. What is also not in dispute is that Ratilal is only one of the owners of the land, that he could not grant any lease or title on his own and it is not suggested that any of the other plaintiffs were contacted by the defendant or that they concurred in offering him a new tenancy.

Ratilal has filed an affidavit denying the defendant's allegations with regard to his agreeing to a new tenancy so that in so far as this affects the position with regard to this application, it would be necessary to adjourn into open court to resolve the issue.

The plaintiff claims however that even on the defendant's own story he has no right to occupation for the purposes of Section 172 of the Land Transfer Act. Not only was Ratilal unable to give the defendant any right or title to occupation on his own, but that the defendant in spite of what he has said in his affidavit about fulfilling his part of the obligations has not even complied with the conditions he said were imposed for the grant of a new lease, namely the payment of $1000. And it certainly seems odd that the plaintiffs should agree to the grant of a new lease at a higher rental - at least as high as they could extract in accordance with P.I.B. guidelines, and upon payment of $1000, and then soon after send a notice of termination of the monthly tenancy.

The defendant was hardly unaware, when he decided to purchase Ram Geer's interest, that his own position would be very tenuous unless he got clear agreement from the plaintiffs to the grant of a new tenancy.

I cannot believe that if the defendant had got such consent even from one of the plaintiffs as he alleges that he would not have pressed as firmly as for some tangible proof or evidence of such consent. I can only presume that the plaintiffs did not agree to anything, other than the defendant's continuation in occupation as a monthly tenant, and the defendant took a calculated risk that he would be able to stay on long enough to make the venture worthwhile.

The defendant has hardly satisfied me that he has a right to remain in occupation for the purposes of Section 172 of the Land Transfer Act, and the fact that he has given two different reasons for purchasing Ram Geer's interest sheds a considerable shadow of doubt over his bona fides. And I cannot see that he has raised any issue, which might be resolved in open court, and which might satisfy the court that he has such a right to remain in occupation.

Accordingly I make the order for possession sought by the plaintiffs together with costs.

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

LAUTOKA
27^th September, 1979.