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Mishra v Kumar [2024] FJHC 662; HBC176.2023 (5 November 2024)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL ACTION NO. HBC 176 OF 2023

BETWEEN
RAJNESH MISHRA of Qeleloa, Nadi, Businessman
PLAINTIFF
AND

ANISH KUMAR of Qeleloa, Nadi
DEFENDANT

Before : Master P. Prasad

Counsels : Ms. J. Nair for Plaintiff
Ms. E. Wakowako for Defendant

Date of Hearing : 30 August 2024
Date of Decision : 5 November 2024

JUDGMENT
(Vacant possession)

1. The Plaintiff had instituted this action by filing a Summons for eviction relying on Order 113 of the High Court Rules 1988 and filed an affidavit for support of the same.
   
2. The Defendant has opposed the said Summons and filed an Affidavit in Opposition.
   
3. Both parties also filed written submissions.
   
4. An Agreement for Lease Number 50034633 (AFL) for residential purposes over land known as Taviracagi No 2 in the Tikina of Nadi, in Province of Ba with an area of 1807m² (subject to survey) was issued by the iTaukei Land Trust Board (iTLTB) to Ajay Kumar. This AFL was for a term of 50 years with effect from 1 January 2006. Ajay Kumar then transferred the AFL to the Plaintiff on 7 July 2022 and the same was registered with the Registrar of Deeds on 12 January 2023.
   
5. The Plaintiff alleges that the Defendant is unlawfully occupying the Plaintiff's AFL as a trespasser and has failed to provide any documentation proving permission to remain thereon.
   
6. The Defendant in his Affidavit in Opposition claims that he has lived on the AFL for the past 46 years and relies on the last Will of his grandmother who the Defendant states was the previous lessee over the AFL before it expired. No lease documents to this effect were provided to the Court. In any event, the Defendant’s grandmother’s Will was annexed to the Defendant’s Affidavit in Opposition. Upon reviewing the same, it was noted that the grandmother had bequeathed all her property to one Kasi Ram (Defendant’s uncle) and one Ajay Kumar (Defendant’ brother).
   
7. The Defendant further states that: Kasi Ram had given him approval to remain on the property; Kasi Ram passed away in 2004; and when the previous AFL expired, Ajay Kumar obtained the renewal under his name without informing the Defendant of the same and later transferred the AFL to the Plaintiff.
   
8. The Plaintiff asserts that the AFL previously granted to the Defendant's late grandmother had expired and a new AFL was then issued to Ajay Kumar from whom the Plaintiff had purchased the same. Moreover, the Plaintiff contends that the Defendant's grandmother bequeathed all her property to her son, Kasi Ram, and grandson, Ajay Kumar, with no inheritance granted to the Defendant.
   
9. On 27 January 2023, the Plaintiff served the Defendant a Notice to Vacate the AFL and the Defendant responded to the same refusing to vacate.
   
10. Order 113 states that:
    

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being tenants of tenants holding after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provision of this Order”

11. Footnote 113/1-8/1 of the 1997 Supreme Court Practice at page 1653 reads:
    

“The application of this Order is narrowly confined to the particular circumstances described in r.1, i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593). The Court, however, has no discretion to prevent the use of this summary procedure where the circumstances are such as to bring them within its terms, e.g. against a person who has held over after his licence to occupy has terminated (Greater London Council v. Jenkins [1975] 1 W.L.R. 155; [1975] 1 All E.R. 354) but of course the Order will not apply before the licence has expired (ibid.). The Order applies to unlawful sub-tenants (Moore Properties (Ilford) Ltd v. McKeon [1976] 1 W.L.R. 1278).”

12. Order 113 outlines a summary procedure for possession of land and Master Azhar (as he then was) in Prasad v Mani [2021] FJHC provided a detailed explanation of its history which I gratefully adopt.
    
13. Thus Order 113 is in essence applied for eviction of squatters or trespassers.
    
14. Goulding J in Department of Environment v James and others [1972] 3 All E.R. 629 said that:
    

“where the plaintiff has proved his right to possession, and that the defendant is a trespasser, the court is bound to grant an immediate order for possession”.

15. Master Rajasinghe (as he then was) in Raliwalala v Kaicola [2015] FJHC 66 on the application of Order 113 stated as follows:
    

“6. In view of Order 113, a person who has a legal right to claim the possession of a land could institute an action, claiming the possession of said land against a person who has entered into or remains in occupation without his license or consent or that of any predecessor in title.

7. The main purpose of Order 113 is to provide a speedy and effective procedure for the owners of the lands to evict persons who have entered into and taken the occupation of the land without the owner's license or consent. They can be defined as trespassers or illegal occupants. These trespassers or illegal occupants have sometimes been referred to as squatters. In Mcphail v Persons unknown, (1973) 3 All E.R.394) Lord Denning has observed "the squatter" as a person who without any colour of right, enters into an unoccupied house or land and occupies it. His Lordship found that in such instances, the owner is not obliged to go to court to regain his possession and could take the remedy into his own hands, which indeed, recommended as an unsubstantial option. Therefore, Order 113 has provided the owners a speedy and effective procedure to recover the possession instead of encouraging them to take a remedy of self-help.

8. The proceedings under Order 113 encompass two main limbs. The first is the onus of the plaintiff. The Plaintiff is first required to satisfy that he has a legal right to claim the possession of the land. Once the plaintiff satisfies the first limb, the onus will shift towards the defendant, where the Defendant has burdened with to satisfy the court that he has a licence or consent of the owner to occupy the land.”

16. Therefore, a plaintiff seeking relief from this Court under this Order must demonstrate that: (i) they have the legal right to possess the land in question; (ii) they are claiming possession of the land currently occupied by the defendant; and (iii) the defendant, whom the plaintiff aims to evict, is someone who has entered and remained on the land without the plaintiff's (or any predecessor in title) permission or consent.
    
17. The Defendant acknowledges and does not dispute that the Plaintiff has ownership of the AFL by virtue of purchasing the same from the Defendants’ brother, Ajay Kumar.
    
18. Furthermore, the Defendant acknowledges receiving the eviction notice but has declined to vacate the land on the grounds that he has resided there for 46 years; has a vested interest in the land; and is not a trespasser.
    
19. Accordingly, the main issue to be determined is whether the Defendant continues to occupy the property as a trespasser, lacking any license or consent from the Plaintiff or any of the predecessors in title.
    
20. The Defendant has failed to provide evidence of any consent or license from the Plaintiff or any predecessor in title to remain on the property.
    
21. The AFL was issued to Ajay Kumar in 2006 and only transferred to the Plaintiff in 2022. The Defendant did not take any action against Ajay Kumar from 2006 to 2022 even when in 2015 Ajay Kumar had filed eviction proceedings against the Defendant (Kumar v Kumar [2016] FJHC 822). Ajay Kumar had been unsuccessful in the 2015 proceedings. The Court held that Ajay Kumar did not have legal standing to bring an action pursuant to section 169 of the Land Transfer Act 1971 as he possessed an AFL registered with the Registrar of Deeds instead of a lease registered with the Registrar of Titles. The Court in Kumar v Kumar did not make any other findings as to the occupancy of the Defendant over the AFL.
    
22. If the Defendant is of the view that iTLTB should not have issued the AFL to Ajay Kumar after the previous AFL expired, then that is an issue between the Defendant, Ajay Kumar and iTLTB.
    
23. The Defendant has the option to pursue a separate legal action against the former lessee Ajay Kumar and/or iTLTB. However, in the current proceedings, the Defendant cannot assert a right to remain on the AFL without demonstrating any legal basis for his claim.
    
24. Therefore, I find that the Defendant has not obtained any consent or a license to occupy or remain in occupation of the AFL.
    
25. Accordingly, I make the following orders:
    

(a) The Defendant is ordered to immediately deliver to the Plaintiff vacant possession of Agreement for Lease number 50034633 which is land known as Taviracagi No 2 in the Tikina of Nadi, in the Province of Ba with an area of 1807m² (subject to survey).

(b) There is no order as to costs.

P. Prasad
Master of the High Court

At Lautoka
5 November 2024