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Raj v Raj [2012] FJHC 1461; Civil Action58.2012 (5 December 2012)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 58 of 2012

BETWEEN:

BIJAY RAJ
of Naodamu, Labasa, Refrigeration Technician.
PLAINTIFF

AND:

SANJEEV AJAY RAJ and AMRITA ANITA RAM both
of Naodamu, Labasa, Refrigeration Technician & Domestic Duties respectively.
DEFENDANTS

Before : Master Harry. Robinson

Appearances : Mr. A Sen for the Plaintiff

The Defendants in person

RULING

Introduction

By Summons dated 4th October 2012 the Plaintiff applied to the Court for an Order for vacant possession against the Defendants pursuant to Section 169 of the Land Transfer Act. Cap. 131.

The defendants are summoned to appear before the Master in Chambers at the High Court in Labasa to show cause why they should not give up vacant possession of the Plaintiff's property referred to as Crown Lease No: 5875 being Lot 31 on Deposited Plan at Naodamu containing an area of 17.2 perches.

The Summons did not specify which limb of s 169 the Plaintiff was relying on but he is clearly within paragraphs (a) where the Plaintiff was and is the registered proprietor of the said Crown Lease. The Summons was supported by an affidavit of the Plaintiff sworn on the 1st October 2012 which states so far as is relevant the following:-

1. THAT I am the registered proprietor of all the land known as Crown Lease No. 5875 Lot 31 on DP No. 4883 containing an area of 17.2 perches (hereinafter referred to as the said property). I annex hereto and marked as letter "A" a copy of the said Lease evidencing ownership of the lease.

2. THAT constructed upon the said lease is a residential dwelling that has been my principal place of residence for more than thirty years.

3. I have got all my entire life's possession in the above property.

4. THAT the Defendant is my son who has been living with me and my wife until her death.

5. THAT the Applicant and his wife are forcefully living on the said property as I have now given them notice to vacate. (I annex hereto marked as annexure "b" a copy of the said notice).

6. THAT defendants have no right whatsoever to continue occupation of the said lease and therefore they are trespassers.

7. THAT I pray that an order be made against the defendants to give immediate vacant possession of the said property with costs summarily assessed in the sum of $4,000.00.

The Summons for vacant possession and its supporting affidavit were served on the Defendants on the 4th October 2012, and complies with the provision of section 170 of the Land Transfer Act in that it was served not earlier than sixteen (16) clear days before the summons was to be heard.

The Defendants opposed the application and filed their affidavit in opposition the following:-

1. That I am person name and described as defendant in the action herein.

2. That Amrita Anita Ram is my legal wife.

3. That I am Bijay Raj's legal and only son.

4. That my mother (Ganga Bhai) was his legal wife.

5. That I have always resided at the family home situated at Lot 31, Naodamu, Labasa since birth and it is the only home I have known.

6. I do want my share from the plaintiff as he (Bijay Raj – director of NAC Refrigeration) did not pay me any wages from 2003 till 2011 and use this money to complete the house and buy other properties for the house.

7. That I request for an injunction order for all his properties as he had disposed most of the properties from the house and also transferred to other person.

8. That, no one had put Bijay Raj out of his house. He ran away by himself as my mother (Ganga bhai – his legal wife) do not accept his de facto wife in this house.

9. That, Bijay Raj knows that I am weak minded and retard child and only worked with him and no other places.

10. That Bijay Raj with his de facto wife were always torturing and threatening me, Amrita and my mother. For that, I had to file DURO against him. (Report Nos: 4039/12, 670/12, 4121/17, 4266/12 and others. (put me naked, want to send people to rape Amrita, want to scold mother)

11. That we couple were always beside our mother's (Ganga Bhai) bed for 3 years till her death while Bijay Raj was having de facto relationship with another woman and neglected her (not caring her at all) when she fell ill (bedridden)

12. I pray that judgement is made without any costs to the defendants.

13. That my mother (Ganga Bhai) was holding entitled to equal share in the property as the legitimate wife and also filed in the family court that she wants her shares and wishes the share to transferred to me (Sanjeev) after her demise as on attached pages. (Property case still going in family court.)

DETERMINATION of the APPLICATION

This application falls within section 169 sub-paragraphs (a) and (c) of the Land Transfer Act. This provisions states:-

169. 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) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(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.

The affidavit in support of the Summons was sworn by the Plaintiff on the 1st of October 2012. He deposes that he is the last registered proprietor of the land described in the Summons and he exhibits to his affidavit a photocopy of Crown Lease No. 5875 which r to have beve been originally issued on the 13th December 1979 and is valid for a period of 97 years and six months. The lis a ng Authority sub-lease residential.

Applications under section 169 a169 are sure summary in nature and can be determined by affidavit evidence only. The provision is intended to operate without the need for a trial involving the oral examination of witnesses and with a minimum of delay, expense and technicality. Hence it would normally apply in virtually uncontested cases or in clear cases where there is no issue or questions to try. That is, there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right or interest.

For the above reason the defendant has to show cause as to why he should not give up vacant possession (section 172) and in this regard the Defendant must show on affidavit evidence why the Court should not make an order for vacant possession. He does not have to prove a conclusive right to remain in possession only some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited –v Liaquat Ali (Action No: 153/87)

The phrase tangible evidence has often been used as a general criteria establishing a right or cause why the Court should not make an order for vacant possession under section 169. For the evidence to be tangible it must be real and capable to be established, not a vague or an elusive perception of a right of possession.

The Defendants right to possession arose from the fact that he is the son of the Plaintiff and according to him on the death of his mother he is entitled to her mother's share of the property. That while his mother was still alive she took the Plaintiff to Court regarding her share of the matrimonial home but that she died before the case was finalised. That his father formed a de-facto relationship with another person and the said person appears to interfere with the relationship between the Plaintiff and the Defendants.

In my view the Defendants claim for non payment of wages under paragraph 6 of his affidavit is a matter separate from this cause of action and is better dealt with by a separate writ action.

This matter however raises an important point regarding the right of an adult son or daughter in his or her parents home. Does the raising of children within the matrimonial home give rise to a propriety right to the children when they reach adulthood? The answer in my view is no there is no automatic right and whatever right the children may have is derived from legislation. The Defendant's right to his mother's interest on the property does not manifest itself on the death of his mother simply because his mother's right to the property is undefined. He and his wife were living on his father's house by licence a licence granted to them by his father. When the licence is withdrawn as it is in this case the defendants have no choice but to vacate. For the above reasons the Plaintiffs application for vacant possession is granted.

It is a sad fact in this case that the family relationship has broken down completely and father and son cannot reconcile. When the matter was called for hearing on the week of the Diwali festival I requested the parties to rethink their options. Nothing transpired and it was clear to me that the spirit of the diwali festivity did not affect them. On the 30 November when the matter was called I had not completed my ruling but had given some orders and that a copy of the ruling could be obtained on request. This is the ruling and the following are the Courts orders.

Orders

1. That the application for vacant possession is granted;

2. That the Defendants be given 28 days to vacate; and

3. That there be no order for costs given the relationship between the parties; and

4. That the Order for possession be stayed for one month.

Master H Robinson
High Court Labasa

5 December 2012.