IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 84 of 2022

                          BETWEEN  
JANARDHAN RAJU AKA JANARDHAN NAIDU of Olosara,     
                 Sigatoka, Cultivator.	
	
                          PLAINTIFF

                                 AND

	DAVENDRA RAJU of Olosara, Sigatoka, Taxi Driver. 

                      1ST DEFENDANT 

                                AND  

       SALENDRA RAJU of Olosara, Sigatoka.
	
	                       2ND DEFENDANT

BEFORE		:	Master P. Prasad  

Appearance		:	Mr. N. Sharma for Plaintiff 
Mr. A. Chand for 1st Defendant
Ms. A. Naidu for 2nd Defendant 

Date of Hearing	:	12 February 2025
Date of Decision 	:	04 September 2025 
						
JUDGMENT 

1.	The Plaintiff has instituted this action by filing a Summons pursuant to Section 169 of the Land Transfer Act 1971 (LTA) thereby seeking an order for the Defendants to give immediate vacant possession of all the piece of land comprised in State Lease number 20451 (Property). The Plaintiff filed an Affidavit in Support of the said Summons and an Affidavit in Reply.  

2.	Both Defendants opposed the Summons and filed respective Affidavits in Opposition. 

Preliminary issue
3.	The 1st Defendant’s counsel raised a preliminary issue that the Plaintiff had already filed a similar application against the 1st Defendant in Civil Action No. HBC 83 of 2019 (Raju v Raju [2019] FJHC 745; HBC83.2019 (30 July 2019)) and the presiding Court had dismissed the said summons. Thereafter, the Plaintiff had proceeded to file a Writ Action being HBC 96 of 2020 wherein part of the orders sought from the Court is for the 1st Defendant to give vacant possession of the Property to the Plaintiff. The 1st Defendant’s counsel then submitted that this current proceeding against the 1st Defendant should be dismissed on this ground alone. 

4.	Objecting to this argument, the Plaintiff’s counsel submitted that section 172 of the LTA allows the Plaintiff to re-file the current Summons. 

5.	The Plaintiff’s counsel further submitted that in Raju [supra] the Court had been misled into believing that the 1st Defendant had an interest derived from the 1st Defendant’s grandfather’s Estate, and had the Court been advised of the same, the outcome would have been different. 

6.	Section 172 of the LTA provides as follows:
“Dismissal of summons
172. If the person summoned appears he or she may show cause why he or she refuses to give possession of such land and, if he or she 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 or she may make any order and impose any terms he or she may think fit, provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he or she may be otherwise entitled, provided also that in the  case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the Judge shall dismiss the summons.”
[emphasis added]

7.	Section 172 of the LTA is very clear wherein it states that if a Summons pursuant to section 169 is dismissed by a court, then a plaintiff can take any other proceeding against the same defendant to which the plaintiff may be otherwise entitled. This section does not allow the plaintiff, whose summons has been dismissed, to file the same proceeding against the same defendant again. 
8.	Moreover, in Raju [supra] which was also a proceeding between the Plaintiff and the 1st Defendant for vacant possession pursuant to section 169 of the LTA, Ajmeer J while dismissing the application stated the following:

“18. The respondent has been in possession of land (part of) for more than 30 years, which is admitted by the applicant. This possession he has inherited from his father and his father from his father. This leads me to conclude that the respondent has a right to possession of the land. 

19. For the reasons set out above, I conclude that the respondent has proved to my satisfaction that he has a right to possession of the land. I would accordingly dismiss the application, but without costs. 

Application for possession of land dismissed without costs.”

9.	The above matter was not dismissed on any technicality or irregularity rather the Court had decided on the substantive issue of whether the defendant therein had a right to possession of the land. The matter is now res judicata. If the Plaintiff was unsatisfied with the above decision, he could have appealed the same. Instead, the Plaintiff chose to initiate a Writ Action being HBC 96 of 2020 wherein the Plaintiff has sued the 1st Defendant, the Director of Lands, the Registrar of Titles and the Attorney-General of Fiji. 

10.	During the hearing, counsels for both Plaintiff and the 1st Defendant confirmed to this Court that the Plaintiff was seeking an order for vacant possession against the 1st Defendant (among other orders) in HBC 96 of 2020, which was filed after the decision in Raju [supra]. 

11.	As stated earlier, section 172 of the LTA does not allow a plaintiff, whose summons has been dismissed, to file the same proceeding against the same defendant a second time. The Plaintiff did not appeal the decision in Raju [supra] and clearly opted to file a Writ Action via HBC 96 of 2020. The Plaintiff cannot keep filing the same proceeding for vacant possession pursuant to section 169 of the LTA against the 1st Defendant after a Court has dismissed it earlier.  

12.	Therefore, the summons for vacant possession against the 1st Defendant is hereby dismissed. The Plaintiff has the option to pursue the same cause of action in HBC 96 of 2020. 

13.	I will now consider the Summons against the 2nd Defendant. 

Relevant law and analysis  
14.	The relevant provisions of the Land Transfer Act 1971 are as follows.
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.
Particulars to be stated in summons
170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.
Order for possession
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.
Dismissal of summons
172. If the person summoned appears he or she may show cause why he or she refuses to give possession of such land and, if he or she 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 or she may make any order and impose any terms he or she may think fit, provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he or she may be otherwise entitled, provided also that in the  case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the Judge shall dismiss the summons.
15.	The process outlined in section 169 of the LTA is a summary procedure designed to swiftly return possession of a property to a registered proprietor when an occupant fails to demonstrate a lawful right to possess that specific property (see Jamnadas v Honson Ltd [1985] 31 FLR 62 (at page 65). 

16.	The onus lies with the plaintiff to convince the court that the requirements under sections 169 and 170 of the LTA have been met. Once this burden has been met, it shifts to the defendant to demonstrate their right to possess the land. A Court's decision to either grant possession to the plaintiff or dismiss the summons depends on how effectively each party discharges their respective burden in the proceedings.

17.	In such proceedings, a defendant's obligation is not to present conclusive proof of their right to stay on the property, but rather to provide some evidence establishing a right or supporting a plausible case for their right to remain in possession of the disputed property. This principle was established by the Supreme Court in the well-known case of Morris Hedstrom Limited v. Liaquat Ali CA No: 153/87. 

18.	Furthermore, as outlined in Ali v. Jalil [1982] 28 FLR 31, even if a defendant fails to satisfy a Court according to the above decision, the Court has the discretion to dismiss the summons if it determines that an open court hearing is necessary. 

19.	In this matter, although the 2nd Defendant is alleging the transfer of the Property to the Plaintiff as a fraudulent transaction, the 2nd Defendant does not dispute that the Plaintiff is the last registered proprietor of the Property. Thusly, the requirement under section 169 is met. 

20.	The second requirement pursuant to section 170 of the LTA is for the Summons to contain a description of the land and to require the person summoned to appear in court. The Plaintiff’s Summons describes the land as “State Lease No. 20451 being Lot 3 on Plan No. 193 situated in the District of Naitasiri on the Island of Viti Levu”. However, the copy of the said State Lease annexed to the Plaintiff’s Affidavit in Support marked as “JR-01” states the same lease number but provides the description of the land as “Pt. of Tavanasaisai and Muasara- formerly CT 2239 and CT 6333, in the Province of Nadroga/Navosa, District of Sigatoka, Lot 3 on Plant N 1935”. While the Property has not been correctly described as per the copy of the lease, the LTA does not specify what description is exactly needed for this purpose but necessitates determining whether the summoned individual was fully aware of the specifications of the land or the property they were directed to vacate, ensuring there was no confusion or misunderstanding regarding it (see Lal v Chand [2019] FJHC 538).
21.	In the current matter, the 2nd Defendant does not dispute the description of the Property. Therefore, the requirement under section 170 has also been fulfilled by the Plaintiff as the description given in the Summons appears adequate for the purpose of the said section.  

22.	Since the Plaintiff has satisfied the requirements of sections 169 and 170 of the LTA, the burden now shifts onto the 2nd Defendant to demonstrate his right to occupy the Property.  

23.	To show good cause, the 2nd Defendant stated the following in his Affidavit in Opposition:

a)	That he has lived on the Property for the past 30 years.
b)	That his father, namely Kupsamy Raju, used to cultivate the Property until his death and thereafter every time the 2nd Defendant wanted to cultivate the land, the Plaintiff stopped him.  
c)	That the transfer of the lease over the Property from the Estate of Yankatesh Raju (Estate) to the Plaintiff is fraudulent as the last Will of the said Yankatesh Raju bequeathed a share of the Estate to the 2nd Defendant’s father, Kupsamy Raju and the same has not been distributed to date. 
d)	The High Court in Raju [supra] had dealt with the issue in relation to the 1st Defendant and that the Plaintiff then filed the same action herein. 

24.	In this matter, the Property was initially leased to the Plaintiff in his capacity as the “administrator of the Estate of Yankatesh Raju also known as Yanktesh Raju” for a period of 99 years with effect from 1 January 2016. This lease was registered on 30 November 2016. Thereafter, on 08 May 2017, the said lease was transferred to the Plaintiff in his personal capacity. 

25.	The Plaintiff has attached a copy of Yankatesh Raju’s Will in his Affidavit in Support marked as “JR – 02”. The said Will appoints the 2nd Defendant’s father, Kupsamy Raju as the executor and trustee and Clause 3 of the Will states as follows:
“3. I GIVE DEVISE AND BEQUEATH all my property both real and personal of whatsoever nature and wheresoever situated to my trustee UPON TRUST to pay all my debts, funeral and testamentary expenses and then distribute the estate in the following manner: 
(a)	To maintain, support and suitably provide for my children YOGENDRA RAJU and PREMILA DEVI until PREMILA DEVI attains the age of 21 years or marries (which date is herein referred to as the “date of distribution”)
(b)	To maintain support and suitably provide for my wife CHANDRA WATI father’s name Shiu Nath until the date of distribution provided she stays on my premises. 
(c)	To pay legacies of $5000.00 (five thousand dollars) to each of my sons PONSWAMY RAJU, KUPSAMY RAJU, KRISHNA MURTI RAJU and YOGENDRA RAJU and a legacy of $1000.00 (One thousand dollars) to my daughter PREMILA DEVI. 
(d)	To pay legacy of $500.00 (Five hundred dollars) to my wife CHANDRA WATI father’s name Shiu Nath. 
(e)	To transfer, convey and pay over all the rest and residue of my property both real and personal of whatsoever nature and wheresoever situated including all accumulations and accretions to my son JANARDHAN RAJU for his own use and benefit absolutely provided however that no transfer or conveyance shall take place until all legacies have been paid or arrangements satisfactory to the legatees have been made for payment thereof.”
[emphasis added]
26.	The counsel for the 2nd Defendant submitted that: the legatees in the Will of Yankatesh Raju have not been paid out and as per the condition in the said Will, the Property should not have been transferred to the Plaintiff; and as a result of the Plaintiff’s failure to properly administer the Estate of Yankatesh Raju, the transfer of the Property to the Plaintiff was fraudulent.  

27.	The counsel for the 2nd Defendant further submitted that in Raju [supra], the High Court had dismissed the application against the 1st Defendant stating that the 1st Defendant had been in possession for over 30 years and had an interest in the Property. Counsel submitted that the nature of possession and the interest in the Property of the 1st Defendant is equally applicable to the 2nd Defendant. 

28.	In response, the Plaintiff’s counsel submitted that there was no evidence presented by the 2nd Defendant that Yankatesh Raju’s Estate was still unadministered and that the legatees under his Will had not been paid. Further, that by virtue of Yankatesh Raju’s Will, the Property was bequeathed only to the Plaintiff and the 2nd Defendant has no interest in the same. 

29.	When questioned by the Court as to how the 2nd Defendant is supposed to provide evidence of non-payment as opposed to the Plaintiff providing evidence of payment, the Plaintiff’s counsel submitted that the 2nd Defendant “should have undertaken certain steps on the transfer of the land”.  Besides this unhelpful submission of the Plaintiff’s counsel, there is no evidence before this Court to either prove or disprove whether the legatees of the Will were fully paid off or not. The Plaintiff’s counsel also agreed that there was no evidence presented to show that the 2nd Defendant was actually aware of the Property transfer to the Plaintiff prior to initiation of this proceeding. 

30.	The question before the Court now is whether this gives any right to the 2nd Defendant to remain in possession of the Property, overriding the Plaintiff’s title. 

31.	In this case I find that the 2nd Defendant has raised some issues that may support an arguable defence and/or a right to remain in possession of the Property. These issues include the question of whether the findings and decision of Ajmeer J in Raju [supra] apply to the 2nd Defendant’s occupation, and whether the Estate of Yankatesh Raju has been fully administered.  

32.	Therefore, I find that there are triable issues in this case which cannot be determined on affidavit evidence alone. There are disputes over the right of occupancy of the 2nd Defendant and this matter is best left to a proper Writ proceeding. The Plaintiff is at liberty to initiate such a Writ proceeding should he wish to.  

33.	Accordingly, I make the following orders:

(a)	The Plaintiff’s Summons for vacant possession is hereby dismissed.  

(b)	Costs summarily assessed at $2,000.00 to be paid by the Plaintiff to each Defendant within 28 days. 

P. Prasad
Master of the High Court

At Lautoka
04 September 2025

Solicitors: 
Plaintiff – Messrs Kumar Legal 
1st Defendant – Messrs Amrit Chand Lawyers 
2nd Defendant – Messrs Zoyab Legal