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Hansa v Kumar [2011] FJMC 54; Civil Action 53.2008 (8 February 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SIGATOKA
WESTERN DIVISION

Civil Action No. 53 of 2008

Between:

RAM HANSA
Plaintiff

And:

ASHOK KUMAR
Defendant

BEFORE MR. C LAKSHMAN
RESIDENT MAGISTRATE

30/12/2010:
Counsels: For the Plaintiff: Mr. Robinson Prasad
Defendant: In Person

JUGDMENT

Introduction
In this Action the Plaintiff seeks an order that the Defendant give immediate vacant possession of all that piece and parcel of land comprised in Crown Lease No. 8381 known as Part of Maro (Farm 5113 & ML9) situated at Maro, Sigatoka, Crown Land LD ref # 4/11/1008.

The Plaintiff further seeks an order that the Defendant remove the house the Defendant built on all that piece and parcel of land comprised in Crown Lease No. 8381 known as Part of Maro (Farm 5113 & ML9) situated at Maro, Sigatoka, Crown Land LD ref # 4/11/1008. The Plaintiff also seeks costs on indemnity basis and such further or other relief that this Court thinks fit.

The Plaintiff gave evidence and called no other witnesses. The Defendant gave evidence and called Mohammed Harish Khan (Dw-2), Mukesh Prasad (Dw-3), and Rajesh Sharma (Dw-4).

The Plaintiff's Case

The Plaintiff gave sworn evidence. The Plaintiff's material evidence was that the "Defendant is [his] son, want him to vacate the land. Am the owner of Crown lease # 8381 (certified true copy tendered and marked as PE-1). Land mortgaged to FDB. Defendant on the land for past 16 years. Not paying rental or making contribution towards loan repayment. Served demand notice for Defendant to vacate on 6th March 2008. Defendant did not vacate the land (Demand notice – marked PE-2). Applied to Lands to get Defendant to vacate the land (Authority to evict marked PE-3).

Defendant is still in occupation and has not vacated. I am in breach of the crown lands condition. Lands have asked me to comply with the conditions. The Defendant's son swears at me and they do not respect me. I want to enjoy the land and live peacefully at this old age. I am 76 years old. Son is over 21 years old and he is not dependant on me. Defendant Can manage on his own. Seek vacant possession of the land. Seek that the Defendant remove his house and take it with him. Seek costs and any other orders the Court deems fit."

In cross-examination the Plaintiff responded as follows: "I got him (Defendant) to cut cane for 3-4 years. I am not being told things. Am not a child. Will not give share to Defendant." There was no re-examination.

Defendants Case

The Defendant gave sworn evidence. The Defendant's material evidence was "I have been deceived. I should get my share. I worked for them whole of my life. Past 5-6 years not with them. I was given the place to stay. I built my house there."

In cross-examination the Defendant responded as follows: "land was not subdivided, only agreement that I had (brother and me). My father deceived me. Know that parents responsibility is until 21 years old. Did not pay rental no need to pay they brought me there. They did not bring me on the condition to pay rental. I only know that I was on my fathers land." In re-examination the Defendant stated "I did not come on my own. They brought me now they do not need me. I earned a lot for them. Children at USP.

The Second Witness for the Defendant was Mohammed Harish Khan (Dw-2). He gave sworn evidence. His material evidence was: "Defendant came to reside in his father's land. I was in the Maro Consultative Committee. Father was in Canada. Ramend Dutt had power of attorney. He signed for his father. Defendant built house costing $30,000.00. We stay in same settlement. I can see Ram Hansa's House. No dispute with either one. Defendant is good man is a cane cutter. I am an elder in Maro. Defendant has lived quietly as a labourer has built a house for $30,000.00.

They were to give Defendant 3 acres of land to cultivate. I call the Plaintiff uncle.

In cross-examination Dw-2 responded as follows: "I do not know if Defendant was paid and in different gang. I did not make any agreement between the Plaintiff and the Defendant." There was no re-examination of Dw-2.

The third witness for the Defendant was Mukesh Prasad (Dw-3). He gave sworn evidence. His material evidence was: "Plaintiff is my uncle (Dada). Plaintiff gave land to the Defendant to work on. He will go to Canada when he returns he will give legal share. Plaintiff did not give share to Defendant. There was no cross-examination of Dw-3.

The fourth witness for the Defendant was Rajesh Sharma (Dw-4). He gave sworn evidence. His material evidence was: "Defendant worked for Plaintiff on the farm. Since 1993 to 2000. Before that as well. Defendant brought his mother and the problem started. I know the Defendant as I was the Secretary of the gang. In cross-examination Dw-4's response was "Defendant was paid by the Plaintiff to work on the farm."

Analysis of the Evidence

Firstly the Court wishes to state that this is one of those sad cases involving a father and son dispute but the Court has to decide on the merits of the case and not on emotions.

In this Action the Defendant pleaded that he had an agreement with his father, the Plaintiff dated 2nd December 1993 where the parties agreed that the Defendant would live on the land. The Defendant in cross-examination told the Court that he had an agreement with his brother about the land. The Court from the pleadings and the evidence tendered finds that the Plaintiff and the Defendant had no agreement for the Defendant to reside on the land. For the duration the Defendant lived on the land the Plaintiff gave the Defendant licence to reside on the land. The Plaintiff now seeks that the Defendant vacates his land.

The Defendant pleaded and gave evidence that he had an equitable interest being the legal son of the Plaintiff. The Defendant is over 21 years and married. He has his own family. The Plaintiff is about 76 years old. The Defendant was adamant that he should have a share in the land and the Plaintiff should give him land.

A misconception remains in many children's mind that whatever is their fathers is theirs. The children generally think that they have a right to what are their fathers. The Defendant was allowed by his father to live on the land. The Defendant was paid for the work he did on the land. The Plaintiff seems to be clearly frustrated at the attitude of the Defendant and his son towards him. The Plaintiff who is well aware of what is happening and is taking this extreme action due to the behaviour of the Defendants family towards him. The Plaintiff deserves respect. He has provided place for the Defendant to live. He has been paying FDB the mortgage.

The Plaintiff may still give the Defendant his share but that is up to him and he cannot be forced into giving anything to the Defendant just because the Defendant is his son. From the evidence tendered the Court finds there was no agreement between the Plaintiff and the Defendant that provided for the Defendant to live on the land. The Court also finds that the Defendant has no equitable interest in the land as a legal son. The Plaintiff is the owner of the land and is paying rental for the land. The Defendant worked for the Plaintiff and was paid for the work he did. The Plaintiff gave a licence to the Defendant to live on his land and now the Plaintiff wants the Defendant to move out.

Orders

For the forgoing reasons the Court Orders as follows:

(a) The Defendant give vacant possession of all that piece and parcel of land comprised in Crown Lease No. 8381 known as Part of Maro (Farm 5113 & ML9) situated at Maro, Sigatoka, Crown Land LD ref # 4/11/1008 to the Plaintiff on or before 31st March 2011.

(b) The Defendant remove the house that the Defendant built on all that piece and parcel of land comprised in Crown Lease No. 8381 known as Part of Maro (Farm 5113 & ML9) situated at Maro, Sigatoka, Crown Land LD ref # 4/11/1008 to the Plaintiff.

(c) That the Defendant and his immediate family not in any way interfere with the Plaintiff and his quiet enjoyment of the all that piece and parcel of land comprised in Crown Lease No. 8381 known as Part of Maro (Farm 5113 & ML9) situated at Maro, Sigatoka, Crown Land LD ref # 4/11/1008 from this day forth.

(d) Defendant to Plaintiff $350.00 costs.

Right of appeal within 28 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

8/02/11