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Chand v Nand [1993] FJHC 9; Hbc0001d.1992s (29 January 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 1 OF 1992

Between:

HIRDESH CHAND
s/o Sudamaji a.k.a. Sudama
Plaintiff

- and -

KISHORE NAND
s/o Ram Pal
Defendant

Mr. T. Fa for the Plaintiff
Mr. V. Kapadia for the Defendant

RULING

This is an application under Section 169 of the Land Transfer Act for vacant possession of land of which the plaintiff is the registered proprietor of "one undivided sixth share".

It is common ground that the total land area in question is slightly in excess of 10 acres not all of which belongs to the plaintiff or indeed to members of the same family.

Furthermore although the land is "undivided" in the sense of there being no approved plan of subdivision it would appear that the occupants of the land maintain some form of 'de facto' subdivision amongst themselves.

In so far as the plaintiff's one sixth share is concerned the Certificate of Title entries show that in 1981 the plaintiff only owned an undivided twelfth share of the land. His father also owned an equal twelfth share. The father's share however was recently transferred to the plaintiff in his capacity as the sole surviving executor and trustee of his late father's 'Will' thereby increasing the plaintiff's share to its present size. The total land area of the share would appear to be in the vicinity of 32 square chains based on the figures supplied in the father's 'Will'. (See: CONDITION 1)

It is also noteworthy that the father's 'Will' makes separate provision for one of his sons (excluding the plaintiff and 2 others) in the following terms:

"CONDITION 2: That of the remaining eight square chains (8 sq. chains) (on Nausori side) one rood of land only be given to my son CHANDAR DUTT."

Mention is also made in the 'Will' of "two wood and iron houses (one 2 bedroom and the other 4 bedroom)" standing on the land but unfortunately their occupants and exact locations relative to the devised portions of the land was not disclosed. Neither for that matter is it entirely clear in the 'Will' whether there were only 2 houses situated on the father's share of the land.

The plaintiff however in his undated affidavit in reply filed on the 17th of July 1992 deposes inter alia in paragraph 3: "... that there are only 2 houses on the subject land and in accordance with Condition 3 of the 'Will' both the houses have been given to my mother Kaushilya and me."

The defendant for his part denies that there are only 2 houses on the land and deposes that "... one rood of the land only be given to Sudamaji's son CHANDRA DUTT. It is this piece of land given to CHANDRA DUTT that I am living with the consent, authority and approval of the said CHANDRA DUTT."

This 'authority and consent' is evidenced by a letter dated 16th November 1990 and signed by a C.D. Maharaj in his capacity as a 'beneficiary'. It reads in part after referring to the present action:

"I would like to point out that in the last 'Will' of my father who is now deceased the said piece of land had been given to me. Now that I am resident in N.Z. and bearing in mind that my sister Sushila Devi (the defendant's wife) has no property of her own I gave my consent to her to occupy the said piece of land and the wooden house that is situated on it."

Clearly the precise location of the disputed house on the land is critical to a resolution of the present dispute. Equally it is clear that having regard to the unsubdivided nature of the land even a survey plan would not necessarily resolve the matter since the precise location of Chandar Dutt's 1 rood of land has not been delineated save for a general description in the 'Will' that it is on the "Nausori side" of the land.

Without deciding the interesting question raised by learned counsel for the defendant as to the plaintiff's 'locus standi' in bringing this application, I am content to decide this application on the basis that there are serious questions that ought to be tried in open Court. It is impossible on the available affidavit evidence to determine who owns the house which the defendant presently occupies or indeed the land on which it stands.

I am satisfied that the defendant has raised sufficient evidence to establish a prima facie right to occupy the house and land on which he presently lives and accordingly the application is dismissed with costs to the defendant to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
29th January, 1993.

HBC0001D.92S