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Bhaskar v Khan [2003] FJHC 260; HBC0043-45j.2002b (27 August 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NOS. 43, 44 & 45 OF 2002

ACTION NO. HBC0043 OF 2002

Between:

SADHULAL BHASKAR
s/o Halka
Plaintiff

and

MOHAMMED JAFFAR KHAN
s/o Akbar Khan
Defendant

ACTION NO. HBC0044 OF 2002

Between:

SADHULAL BHASKAR
s/o Halka
Plaintiff

and

ISAQ HUSSAIN aka ISAK HUSSAIN
s/o Karim Buksh
Defendant

ACTION NO. HBC0045 OF 2002

Between:

SADHULAL BHASKAR
s/o Halka
Plaintiff

and

DWARKA PRASAD
s/o Ram Khelawan
Defendant

Mr. V. P. Ram for the Plaintiff
Mr. A. Sen for the Defendants

JUDGMENT

There are three separate section 169 applications under the Land Transfer Act, Cap. 131 (the ‘Act’) being Civil Action Nos. 43, 44 and 45 of 2002.

In Action No. 43 an order is sought for immediate vacant possession to the plaintiff of the land of which he is the registered proprietor known as Lot 1 on Plan No. D.P. 3330 Tabia (Part of) and being the whole of the land comprised in Certificate of Tile No. 19004 and 3.5 acres being comprised in and part of CT 19024 ‘which is occupied by the defendant or such other person who may be in occupation at the instance, consent or sufferance of the defendant’ (the ‘land’).

In Action No. 44 order for immediate vacant possession is sought in respect of the land of which the plaintiff is the registered proprietor known as Lot 7 on Plan No. DP 3330, Tabia (Part of) being the whole of the land in Certificate of Title No. 190009 ‘which is occupied by the defendant or such other persons who may be in occupation at the instance, consent or sufferance of the defendant’ (the ‘land’).

In Action No. 45 order for immediate vacant possession is sought in respect of plaintiff’s land known as Lot 13 on Plan No. 3330 Tabia (Part of) being land comprised in Certificate Title No. 19015 ‘which is occupied by the defendant or such other persons who may be in occupation at the instance, consent or sufferance of the defendant’ (the ‘land’).

The summons in each of the said action is supported by the affidavit of Sujaindra Bhashkar (S.B.) son of Sadhulal Bhaskar (the ‘plaintiff’) the lawful Attorney of the plaintiff sworn 5^th June 2002.

No affidavit in reply was filed by the defendant in Action No. 43. As ordered, both counsel filed written submissions. Counsel for the plaintiff made three separate but almost identical submissions in each of the three actions.

Mr. Sen for the defendants in these actions submitted that the affidavit of Isaq Hussain in opposition in Civil Action No. 44 of 2002 is ‘relevant to all Civil Actions and accordingly separate affidavits are not necessary’ and that his one submission ‘would apply to all civil actions’.

Consideration of the issues

I shall deal with the three cases together in one judgment as the issues are the same in all of them.

Plaintiff’s submission

Annexed to the affidavit of the attorney for the plaintiff is copy Certificate of Title in respect of the lands in question in the three actions respectively. Mr. Sadhulal Bhashkar (the ‘plaintiff’) is the last registered proprietor of the said lands.

The affidavits in respect of the lands occupied by the three defendants reveal the history of their occupancy and it is not intended to repeat it here suffice it to say that whatever Lease/Tenancy that there was in favour of each of the defendants expired on 31^st December, 1999. The plaintiff says that the defendants have no right to renewed terms or any extension of lease and tenancy and that they have no right and title to remain on the lands. They are refusing to vacate them.

As far as Mohammed Jaffar Khan (MJK) in Action No. 43 is concerned, his land is agricultural and it was subject to ALTO and subsequently ALTA after 1^st September 1977. Originally a Lease No. 120323 was given to Bipti who transferred the same to MJK on 13^th September 1977. Extension of lease was given under ALTA which expired on 31^st December 1999. He has not paid rent after that date.

The plaintiff says that by not filing an affidavit in reply on the facts, MJK (the defendant) has not shown cause why he should remain in possession of the land which he is occupying.

The learned counsel for the plaintiff submits that there are no triable issues nor are there any dispute of facts.

As far as the issue in Action No. 44 is concerned, involving the defendant Isaq Hussain, the facts are similar to M J K above involving agricultural land. The lease expired on 31^st December 1999 and no rent has been paid since. The defendant continues to be in occupation and refuses to vacate. He has instituted an action along with others claiming that he has a right to continued occupation. The defendant relies on the fact that there is a case presently pending and there is an interim injunction obtained ex parte. But the defendant’s affidavit does not have any documentary proof of his assertions and the annexures only contain pleadings.

The plaintiff’s counsel finally submits that as in Action No. 43 neither are there triable issues nor dispute of facts in this case.

As for Action No. 45 against the defendant Dwarka Prasad the history of his dealings with the plaintiff in respect of the land occupied by him is almost the same as the defendants in the other two actions and this is contained in the affidavit of the plaintiff sworn 5^th June 2002 in this action in support of the summons. The defendant fell into arrears of rent and a notice terminating the lease was given under section 37(1)(c)(ii) of ALTA as from 25^th June 1997. The defendant with others instituted Civil Action No. 48 of 2001 in the High Court claiming, inter alia, that he is entitled to continued possession of the land under his Lease No. 232352.

The plaintiff’s counsel submits that in any case the defendant’s Lease expired on 31 December 1999 and he has no right or claim to continued occupation.

Defendants’ submission

The learned counsel for the defendants (Mr. A. Sen) submits, inter alia, that Sujaindra Bhaskar is not the ‘lawful attorney or has any mandate of any kind whatsoever to institute these proceedings’.

Mr. Sen submits that there is a writ action No. 48/2001 pending in the High Court at Labasa where the defendants in the action before me are the plaintiffs (along with 4 others) and the plaintiff Sadhulal Bhaskar is the defendant. There freehold land is concerned and the defendants herein he says are claiming, inter alia, “possession of said land comprised in instrument of tenancies”. They claim entitled to continued tenancy as they have leases created on 15 January 1986 for 20 years for Dwarka Prasad (lease No. 23251) and Mohamed Jaffar Khan (Lease No. 23251) and for Isaq Hussein (Lease No. 242329) on 19 September 1986 for the same period. There the defendant filed his statement of defence together with a counterclaim. The plaintiffs have filed their reply to the counterclaim but the defendant has not made any application to dissolve the injunction granted therein.

Counsel says that the said leases were created pursuant to the provisions of the ALTA and each and every lease should have been for a period of 30 years under section 6(b).

Mr. Sen submits that until such time as the said civil action No. 48/01 is resolved the plaintiff in this action cannot proceed for ejectment and in this regard he referred the Court to the Court of Appeal case of Dharam Lingam Reddy v 1. Pon Samy, 2. Veliamma (d/o Thandrayan) 3. Veliamma (d/o Raj Mudaliar) 28 F.L.R. 69 (1982).

It is Mr. Sen’s argument that these applications cannot be determined on affidavit evidence alone. There has to be a trial so that evidence could be adduced. He said that that case is no different from Khadim Hussain s/o Hussain Buksh v Chandrika Prasad (Civil Action No. 36/02,) Labasa in which on 27 August 2002 I refused an order for summary judgment for vacant possession.

He says that what is for examination before the court is whether the leases issued by the plaintiff on respective dates were in compliance of section 6(b) of the Agricultural Landlord and Tenants Act (ALTA).

The defendants maintain that the said leases do not comply with the provisions of the ALTA and they are entitled to continued possession.

Mr. Sen submits that prior to 1968 the defendants did not hold any tenancy. Hence there cannot be an automatic extension of the ‘tenancy’ on 31 December 1969 as the plaintiff maintains. Since then respective leases/tenancies were not capable of being extended, then the tenancies given to them in 1986 did not comply with the provisions of ALTA as section 6(b) provides:

“Any contract of tenancy created after the commencement of the Agricultural landlord and tenant (Amendment Act, 1976) shall deem to be a contract of tenancy for a term of not less than 30 years, and the provisions of this Act shall apply to any such contract”.

Therefore counsel say that the term offered should have been 30 years when it was issued in 1986. He seeks dismissal of the summons under s169 of the Act.

Determination of the issue

These applications are under s169 of the Land Transfer Act Cap. 131 (the ‘Act’). Under this section which provides, inter alia, as follows, the plaintiff as the ‘last registered proprietor’ of the lands in question, is entitled to bring these actions:

“The following persons may summon any person in possession of land to appear before a Judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) The last registered proprietor of the land
(b) .....
(c) .....”

Section 169 calls for evidence of title. Therefore unless an applicant is the registered proprietor of the lands in question he will not have recourse to this section at all.

The procedure under s169 is governed by sections 171 and 172 of the Act which provide respectively as follows:

s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."

s.172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit.”

It is for the defendants in each of the said actions to ‘show cause’. For the reasons hereafter appearing I find that the defendants have not done so.

Pending action

The learned counsel for the defendants has raised the point that there is an action pending instituted by the defendants (along with others) being Civil Action No. 48 of 2001 in which they seek order for continued occupation. There the plaintiff’s ‘counterclaim’ is for vacant possession.

The pendency of an action is no bar to proceedings under s169 of the Act as the plaintiff has done in this case. In this regard Mishra J.A. in Dinesh Jamnadas Lalji & Anor v Honson Limited FCA Civ. App. 22/85 said:

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.” (emphasis added)

Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

“...that mere institution of .. proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

There is nothing to prevent the plaintiff from applying under s169 for s60 of ALTA provides:

“Except as it is in this Act expressly provided, nothing contained in this Act shall affect prejudicially any power, right or remedy of a landlord or tenant or other person, vested in or exercisable by him by virtue of the provisions of any Act or by, under or in respect of any contract of tenancy or other contract.”

No dispute as to facts

Apart from interpretation placed by Mr. Sen on certain provisions of ALTA there are no dispute as to facts. But if serious conflicts are raised in the affidavits recourse will have to be had to a writ action.

I have considered the affidavit evidence placed before me together with annexures and also the helpful submissions made by both counsel.

Although certain matters have been raised in opposition by Mr. Sen, I find as a fact that the plaintiff is the registered proprietor of the lands in question in the three actions. Also that the leases referred to by Mr. Sen as having been ‘created’ on 15 January 1986 (2 of these) and 19 September 1986 are not correct at all ‘year wise’ for when one looks at the copy leases they commenced on 1 January 1980 and not January and September 1986 and they were for a period of 20 years. This statement was indeed very misleading.

Conclusion

It is quite clear from the affidavits and the annexures, that there are no leases in respect of the lands as they have expired; the defendants have not been paying rent since the expiry of the leases or on the termination of tenancies.

I find that s169 application is quite appropriate here. On this aspect of summary procedure in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould V.P. said:

“...the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali, (Action No. 153/87 at p2 said as follows and it is pertinent:

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

The defendants have not shown cause to my satisfaction as required under s172. In the result, in this case the title of the registered proprietor will prevail over anything that the defendants have said or had been submitted on their behalf by their counsel. There is no record of interim injunction granted herein having been extended.

There will therefore be an order that the defendant or anyone else in occupation of the land in each of the said actions give immediate vacant possession of the lands in question with execution stayed for two months. Each defendant is to pay costs to the plaintiff’s solicitor in the sum of $400.00.

D. Pathik
Judge

At Labasa
27 August 2003