Ram v. Rasul [1979] FJSC 77; Action No. 98 of 1978 (25 October 1979)

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

Civil Jurisdiction
Action No. 98 of 1978

BETWEEN:

PARSHU RAM s/o Sanjivi Reddy
(Plaintiff)

AND

MOHAMMED NABI RASUL
s/o Mohammed Ahmed Khan,
FEROZ KHAN & MOHAMMED SADIQ
both sons of Mohammed Hanif
(Defendants)

Mr. J.R. Reddy Counsel for the Plaintiff
Mr. S.D. Sahu Khan, Counsel for Defendants

JUDGMENT

The plaintiff holds a crown lease of 18 acres and 24 perches of which 18 acres leased to farmers. It seems that the plaintiff has tried to get possession of part of the 18 acres but the Agricultural Tribunal extended the sub-leases term. Now the plaintiff seeks to gain possession of the 24 perches which are in the possession of the defendants.

Initially the defendants maintained that they were not on land belonging to the plaintiff. As a result the plaintiff went to the trouble of having the area surveyed and the plan Ex. E shows that the 24 perches are part of the plaintiff lot No.C.T. 11754.

At the hearing the defendants abandoned the allegation that they were not on land belonging to the plaintiff and relied upon adverse possession and claim to have some kind of equitable title in that respect.

P.W.2, one of the plaintiff’s tenants took his lease about 1951 at which time he says the defendants were not on the land. He thinks the defendants on the land about 1956. Nabi Rasul D.W.1 says that when he went on to the land the plaintiff raised no objections. He has erected 3 corrugated iron and timber huts some of which have cement floors and he has laid water pipes on the land.

FEROZ KHAN, D.W.2, says that it is about 20 years since he went on the land. D.W.1 & D.W.2, both state that all they desire is permission to live on the land.
NABI RASUL says that he went on to the land in February 1958.
Title by way of adverse possession is dealt with in Part XIII L.T.A. S.78 enacts that a person who has been in adverse possession for not less than 20 years may apply to the Registrar for an estate in fee simple in the manner set out in S.79. The applicant and persons affected by the application appears in sections 80 to 89. No attempt has been made by the defendants to have an estate rested in them. Their failure to do so may have been due to their believing that they had not a supportable claim. If one accepts the evidence of Nabi Rasul (Supra) they entered the land in February 1958. On or about 3rd January 1978 they received notice to quit which they ignored. By 3/1/78 they had not been in possession for 20 years but for about one month short of that period.
In my view that is fatal to the defendants’ claim. I do not see how the Registrar could consider an application based on less than 20 years possession. Once the notice to quit was delivered the user cannot be said to have been with the consent of the plaintiff. There is in prescription a presumption of consent which in this case is rebutted by the notice to quit.

Hurricane Bebe hit this part of Fiji in 1973 and the defendant Nabi Rasul says that his buildings were damaged. He says he asked the plaintiff permitted it. Clearly there was at that stage an acknowledgment of the plaintiff’s title and right to possession. Thus after 15 years possession the defendant had accepted that this was the plaintiff’s land and that the defendant was there on sufferance.

Thus the evidence of the defence defeats their own claim.

In my view the plaintiff has lost his title by 20 years adverse possession of the defendant. Although S.78(1) only refers to 20 years possession it refers to it being “such that he would have been entitled to an estate in fee simple in the land on the ground of possession if the land had not been subject to the provisions of this Act.” The words quoted indicate to me that the kind of possession contemplated by the Act is the kind which existed prior to the Act coming into force.
I find that up to the date of receiving notice to quit the defendants had not been on the land for a full period of 20 years but were one month short.
In 1973 the defendant Nabi Rasul acknowledged the plaintiff’s title.
The defendants have not applied for any title to be vested in them under the provisions of Part XIII of the Act.

I find that the plaintiff is still fully entitled to all the privileges of ownership. Accordingly there will be an Order that the defendants give up vacant possession of 24 perches.
There has been evidence in support of the plaintiff’s claim for damages and none are awarded. The defendants will pay the costs.

(sgd) (J.T. WILLIAMS)
JUDGE

LAUTOKA,
25th October, 1979