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Kumar v Ratnam [2012] FJHC 1417; HBC60.2006 (15 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CIVIL JURISDICTION]

Action No. HBC 60 of 2006

BETWEEN:

SARWAN KUMAR
of Waimalika, Nadi, Cargo Officer.
PLAINTIFF

AND:

MUN RATNAM
of Waimalika, Nadi, Domestic Duties.
DEFENDANT

Before: Priyantha Nāwāna J.

Counsel: Plaintiff : Mr S Sharma
Defendant : Mr R P Singh

Date of Hearing and Order : 15 November 2012

ORDER

1. The plaintiff, by his writ of summons dated 28 July 2008, instituted this action against the defendant alleging that she was in unlawful occupation of the part of his property on Native Lands Approval Notice No. ML 140 (Native Land Reference No. 4/10/4523) situated at Legalega in Nadi. The plaintiff sought that the defendant be ordered to vacate that portion of the land that the plaintiff claimed to be possessing.
   
2. The defendant, by her statement of defence dated 14 August 2008, denied the allegation of unlawful possession of a portion of the plaintiff's land. She stated that she was in lawful occupation of the portion of land on Native Lands Approval Notice No. ML 95 (Native Land Reference No. 4/10/4516) at Legalega, Nadi.
   
3. It appears from Approval Notice Nos. NLTB 4/10/4523 dated 02 November 1981 and NLTB No. 4/10/4516 dated 19 September 1981, that two lots of land had been issued by iTaukei Land Trust Board (iTLTB) subject to a condition as contained in clauses 3 and 5 respectively of the two notices. That clause stated that if a survey showed that the portion of land for which a lease was expected to be given formed part of any existing freehold or leasehold title, such Notice of Approval was deemed to have been cancelled without prejudice to the iTLTB or such portion of land was deemed to have been excluded from the land that was expected to be given by iTLTB.
   
4. It, therefore, appears that both the plaintiff and the defendant are occupying the respective portions of land conditionally in anticipation of the proper leases to be given by the iTLTB, upon completion of procedural steps under the iTLTB Act.
   
5. This court, having noted these aspects of the case, ordered on 26 May 2011 that two independent surveys be carried out at expenses of the parties. Both plaintiff and defendant, in compliance with the order of this court, have filed scheme plans which are filed of record in this case. In making the order on 26 May 2011, court advocated for the parties to come to a settlement as the dispute revolved only around the demarcation of the boundaries and/or the extent of area that they might be entitled to possess under leases. The parties, however, had not been able to reach a settlement; and, the matter stood for trial for today.
   
6. Court, having had the benefit of hearing submissions of the learned counsel and also perusing the documents as agreed by the parties, is of the opinion that this matter should be resolved with a settlement between the parties. Learned counsel submits that, a settlement although desirable, could not possibly be reached without engaging the iTLTB. The iTLTB, being the lessor of the properties involved, is also the repository of the power under the iTLTB Act to grant leases of land in accordance with the Act. In the circumstances, this court sees merit in the submissions of learned counsel that a settlement could not possibly be reached without the engagement of the iTLTB.
   
7. By a consensual agreement between the parties before the court, both the plaintiff and the defendant are agreeable to come to a settlement with the engagement of iTLTB. In view of this agreement, the plaintiff moves to withdraw this action subject to no cost.
   
8. Application for withdrawal of the action is allowed. Parties are to bear their own costs.
   
9. A copy of this order shall be transmitted to the iTLTB forthwith under the hand of the Deputy Registrar of this court, to enable the parties to facilitate the settlement effectively.
   

Priyantha Nāwāna
Judge
High Court
Lautoka
15 November 2012