IN THE HIGH COURT OF JUSTICE (Sub-Registry, San Fernando) BETWEEN PADMA DASS AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE (Sub-Registry, San Fernando) CLAIM NO. CV BETWEEN PADMA DASS AND Claimant RAMNATH BALLY SHAZMIN BALLY Defendants Before the Honourable Mr. Justice Frank Seepersad Appearances: 1. Mr. Maharaj instructed by Mr. Ramsaran for the Claimant 2. Ms. H. Harrikisson and Mr. K. Harrikissoon for the Defendants Date of Delivery: January 19, 2017 Page 1 of 15

2 JUDGMENT 1. Before the court for its determination were the Claim Form and Statement of Case filed on behalf of the Claimant on August 14, An Amended Statement of Case was filed on October 29, 2012 and a Re-Amended Statement of Case was filed on November 6, The Claimant sought, among others, the following relief: (i) A declaration that the Claimant has been in undisturbed possession and is the owner of all that piece or parcel of land comprising 200 square feet measuring 5 feet by 40 feet situated in that area between the Claimant s premises and the Defendant s premises on the Western boundary of the Claimant s premises and the Eastern boundary of the Defendant s premises (hereinafter referred to as the disputed strip of land ). (ii) Damages for trespass to said premises and/personal property including motor vehicle registration number PCA (iii) An Order that the Defendants are estopped from denying the Claimant her interest in the subject land. 2. By Amended Defence and Counterclaim, the Defendants claimed the following: (a) An order for possession against the Claimant of all and singular that strip of land described as the strip of land measuring 50 feet by 4 feet being part of the land described in the Defendant s Deed of Conveyance. (b) Damages including aggravated damages against the Claimant for loss of use from February 2012 and continuing at the rate of $1, per month (c) Special damages of $37, for the replacement of the wall and $30, for injunctive proceedings. (d) An inquiry into damages on the undertaking as to damages. (e) An injunction prohibiting the Claimant whether by themselves, their servants or agents from in any way re-entering the disputed strip of land. Page 2 of 15

3 The General Facts 3. The Claimant s grandfather, Abhegauth Dass, occupied a parcel of land which measured approximately 506.4m² bounded on the North by the Chaguanas Main road, on the South by lands formerly known as Lot 8 but now known as Lot 11, on the East by the Chaguanas market and on the West by lands formerly known as Lot 5 but now known as Lot 1 (hereinafter referred to as the Dass property ). The Dass property was owned by Jiwan, Bichar and Sukhraj Dass as joint tenants and Abhegauth Dass had a life interest in same. After Abhegauth died, the joint tenancy between Jiwan, Bichar and Sukhraj was severed by a Deed of Partition sometime on or around the year By Deed of Gift dated May 1, 2012, registered as Deed No. DE D001 the Claimant s late father, Sukhraj Dass, conveyed his undivided 1/3 share, right, title and interest in the Dass property to the Claimant. 5. The Defendants are the owners of the property adjoining the Dass property on the Western boundary by virtue of Deed of Conveyance dated February 9, 2009 registered as Deed No. DE D The disputed strip of land is the land adjoining the Dass property and Defendants land measuring 4 feet by 50 feet situate on the Western boundary of the Dass property and the Eastern boundary of the Defendants premises. Summary of the Case of the Respective Parties 7. It is the Claimant s case that the disputed strip has been used by the Claimant and her family, being her predecessors in title, as part of a driveway to gain access to her property since 1948, and that she and her family have been in uninterrupted, undisturbed and absolute possession and occupation of same since The Claimant has also claimed that the previous owner of the Defendants land, Mr. Patel, erected a wall separating the Dass property from the Defendants land and he left the disputed strip of land as part of the Dass property. Page 3 of 15

4 8. The Claimant s case is that the disputed strip of land has formed part of the Dass property for several decades with the knowledge and consent of all the predecessors in title of the Defendants and that the Defendants, when they purchased their property, were acutely aware of this fact. 9. The Claimant claimed that she has been in uninterrupted, undisturbed and absolute possession and occupation of the disputed strip of land and that she has adversely acquired same and is now its owner. 10. The Defendants denied the Claimant s claim in adverse possession and claimed that they and the previous owners of their property have always had use of the disputed strip of land. The Defendants claimed that the Claimant s uncle, Mr. Bichar Dass, was permitted to park his vehicle on the disputed strip of land from about 1999 when the wall which separated both properties was removed and that the Claimant erected an electric gate in 2012 and thereby denied them access to the disputed strip. Issues 11. The central issue that falls to be determined by the court was whether the Claimant is entitled to exclusive possession of the disputed strip of land based on adverse possession. 12. Additionally, the court had to determine the issue as to whether either party was entitled to an award of damages. The Law 13. In relation to the principle of adverse possession, Section 3 of the Real Property Limitation Act Chap. 56:03 provides: No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, Page 4 of 15

5 then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. 14. Further, Section 22 of the Real Property Limitation Act provides that: At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished. 15. The Claimant must therefore establish that she has been in continuous possession of the disputed strip of land for a period of at least 16 years prior to the commencement of these proceedings. 16. The case of JA Pye (Oxford) Ltd v Graham [2002] 3 All ER 865 sets out the applicable criteria for adverse possession. The authority established that a claim to title by adverse possession is comprised of two crucial elements: factual possession and intention to possess (animus possidendi). Factual possession signifies a degree of exclusive physical custody and control and the question of whether the acts of the squatter are sufficient to meet this must depend on the circumstances of the case. The intention to possess means an intention, in one s own name and on one s own behalf, to exclude the world at large, including the owner with paper title.so far as is reasonably practicable and so far as the processes of the law will allow. : as per, Lord Browne Wilkinson, at paragraph In Powell v Mcfarlane [1977], Slade J said: Factual possession signifies an appropriate deree of physical control. It was must be single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot be in possession of the land at the same time. Page 5 of 15

6 18. In the case of Ocean Estates Ltd. v Norman Pinder (1969) 2 A.C. 19, their Lordships Privy Council stated at pages 24 and 25: Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 20-year period of continuous and exclusive possession by the trespasser. Evidence on Behalf of the Claimant 19. Evidence for the Claimant was given by the Claimant and Ms. Parvina Boodram. The Claimant - Ms. Padma Dass 20. The court found the Claimant to be a hesitant and evasive witness and found that her responses were inconsistent with the evidence that was adduced during the injunctive proceedings before this court and as contained in her witness statement. 21. The Claimant stated that she is an Attorney-at-Law and that she is familiar with the principles of conveyancing and Deed construction. She indicated that the Dass property was previously owned by her father, Sukhraj Dass, and his two brothers, Jiwan Dass and Bichar Dass and she confirmed that by virtue of a Deed of Gift she became the owner of a 1/3 undivided share in the property. 22. The Claimant stated that the joint owners of the Dass property were in exclusive possession of the disputed strip of land. During cross-examination she was asked whether she specifically said that her predecessors in title had exclusive possession of the disputed strip of land and was referred to paragraphs 11 and 12 of her witness statement Page 6 of 15

7 and she accepted that the words exclusive possession did not form part of her witness statement. 23. The Claimant stated in evidence that the issue of exclusive possession did not arise because only the Dass family used the disputed strip and that she never excluded her father, or Bichar Dass or Jiwan Dass or their children from using the disputed strip. 24. The Claimant indicated that Yudhistir Dass had uninterrupted use of the disputed strip and still continues to have use of same and that the Dass family used the disputed strip of land and cars were parked thereon well before The Claimant initially testified that the Defendants and/or their predecessors did not consent to her and her family members use and access of the disputed strip of land. However, during cross-examination, she was shown paragraph 7 of her affidavit filed on August 14, 2012, which was used in the injunctive proceedings, where she had said that consent was given and upon seeing same she accepted that consent was given. 26. The Claimant maintained that the area enclosed by the electric gate had been under the control of her family for decades. 27. The Claimant testified that there was one gate which opened into two to the front of the area of land which encompasses the disputed strip and the 4 feet portion owned by her family. During cross-examination, she was shown a picture of the Defendants property and she confirmed that there were in fact two gates as was evident in the photograph which was shown to her. The Claimant further testified that she lived outside of the jurisdiction for a period of six years from 1993 to The Claimant refused to confirm whether the pavement situate to the front of the Defendants property was in terrazzo but she stated that part of the disputed strip of land is terrazzo and that the majority of same is concrete. She also indicated that there is a 1 foot wide strip plastered in mortar in the middle of the disputed strip of land. Page 7 of 15

8 29. The Claimant indicated that her cousin had free access to the disputed strip of land and that she never stopped him from parking his car on same. She testified that she never told anyone that she was the owner of the disputed strip of land nor did she tell anyone that they could not use it. She further asserted that she never stopped anyone from using the disputed strip of land. 30. Her evidence was that she would get to the back of the Dass family property through the disputed strip of land. 31. The Claimant s acceptance that the Defendants predecessors in title gave consent to the Dass family to use of the disputed strip of land fundamentally impacted on her position that she had the necessary intention to possess the disputed strip of land as her own, adverse to the interest of owners of the land of which it formed part. Ms. Parvina Boodram 32. The court found that this witness s testimony provided limited assistance and very little weight was attached to same. 33. Ms. Boodram is a friend of the Claimant s family and asserted in cross-examination that she visited the Dass property on and off for many years. She testified that she knew Abhegauth Dass to be the owner of the Dass property and did not know who owned the lands subsequently. In contradiction to the Claimant s admission and the photographic evidence before the court, she stated that she knew there to be a wooden gate which Sukhraj Dass replaced with a galvanise gate and that there was never two gates between the Dass property and the Defendants property. She stated that she saw Sukhraj Dass replace the gate because the wooden gate was rotted. She could not recall what year this took place but said it was built sometime between 1968 and Evidence on Behalf of the Defendants 34. Evidence for the Defendants was given by the First Defendant, Bibi Hosein, Zora Rahamut, Subash Ramdularsingh, Yudhisthir Dass, Bichar Dass, and Naraji U. Patel. Page 8 of 15

9 35. The court was impressed by all the Defendants witnesses and found that they were all forthright, their responses were direct and they did not contradict the evidence contained in their respective witness statements. Accordingly, they engendered in the court the feeling that they were truthful witnesses. The First Defendant Mr. Ramnath Bally 36. The First Defendant s evidence was that he purchased the property and noticed a gate located on the Eastern boundary which remained unlocked. He stated that the gate enclosed the disputed strip of land and the Claimant s 4 feet strip of land. He stated that he had use of and access to the disputed strip of land after his land was purchased and this continued until the Claimant erected the electronic gate. 37. He stated that from his limited knowledge he knows that there are steps inside the Claimant s building which lead to the upstairs. He further stated that if the downstairs is occupied, the Claimant and her family members can access the upstairs portion of their building by passing through the 4 feet strip of land situate on the Dass property. 38. This Defendant maintained that use of the disputed strip of land is required for him to gain access to the outside of his building and to service the air-conditioning units on the building. 39. The court was impressed with this witness and he instilled in the court the feeling that he was truthful and honest. His responses were direct and he remained unshaken in crossexamination and consistently maintained that the disputed strip of land belonged to him. Mr. Bichar Dass 40. Mr. Bichar Dass is the uncle of the Claimant and was a joint tenant and owner of Parcel A on the Dass property together with Jiwas Dass and Sukhraj Dass but his interest was sold to Yudhisthir Dass. Page 9 of 15

10 41. Mr. Dass was very familiar with the Dass property having lived there since He stated that he knew the entrance on the Western boundary as a 4 feet strip of land and that the neighbour also had a 4 feet strip of land. He testified that about two years after the Dass building was constructed, Abhegauth Dass and Mr. Patel, who was the previous owner of the Defendants land, constructed a wall measuring about 40 feet in length along the path where the two 4 feet strips of land met. This, he said, was done because a dead body was found in the open area. He further stated that two gates were constructed to the front of the wall and that each landowner had access to their 4 feet strip through their respective gates. 42. Mr. Dass stated that neither he nor his family went over to the Defendants 4 feet strip of land as it was on the other side of the wall. 43. The separating wall was removed around 1999 when he requested from Ms. Bibi Hosein, the then owner of the Defendants property, permission to park his vehicle on the 8 feet strip of land by using her 4 feet strip of land. He stated that Ms. Hosein allowed him to use the disputed strip of land and he in return put up a sign on the Dass building advertising Ms. Hosein s business. The witness testified that he paid $ for the removal of the wall. 44. Mr. Dass stated that he always considered that the disputed strip of land belonged to the Defendants predecessors in title 45. The court was particularly impressed with this witness. Notwithstanding his age, his memory and recall was amazing. He was sharp, decisive and compelling. The court had absolutely no doubt that he was a witness of truth and accepted his evidence in relation to the fact that a wall had separated the Dass property and the Defendants property and that it was removed in 1999 at his request, so as to enable him to park his car. The court also accepted that permission to do so was obtained from Ms. Bibi Hosein who owned the property in Based on his evidence, that of Mr. N. Patel and Ms. Hosein, the court had absolutely no doubt that the owner of each property had maintained their separate Page 10 of 15

11 portions prior to the removal of the wall in 1999 and that the disputed strip was under the control of the Defendants predecessors until the wall that separated both properties was removed. The court also found that prior to that event, it was not possible for vehicles to park on the disputed strip and all vehicles concerning the Dass family parked to the front of the Dass building. Consequently, the court rejected the Claimant s assertion that the Dass family had used the disputed strip of land to park vehicles for the duration that she claimed. Mr. Naranji Patel 46. Mr. Patel was the first owner of the Defendants property. He was the owner of the Central Store and resided there until he sold the property in Mr. Patel stated that when he moved onto the property there was no garage on the disputed strip of land. He did now know of Sukhraj Dass owning a vehicle but he knew that someone had a small vehicle which they parked inside the Dass building as there were no parking spaces on the Dass property. 48. He further stated that before the wall was built so as to enclose the disputed strip of land on his side and the 4 feet strip that belonged to the Dass family, the public had access to same, as it was open and unfenced. This witness stated that Abhegauth s son sometimes parked on the disputed strip of land but this stopped when the wall was erected. The witness also spoke of a corpse found on the open area and confirmed that this led to the erection of the wall and the two gates, so as to deny the public access to the said area. 49. The court was impressed by the evidence of this witness and found him to be credible and truthful are his evidence supported the account advanced by Mr. Bichar Dass as to the circumstances that surrounded the building of the wall that separated both properties. The court also accepted his explanation as to the document signed by him which was inconsistent with the evidence he adduced before this court and found as a fact that the Claimant mislead him into signing the said document which was exhibited to his witness statement as N.P.4. Page 11 of 15

12 Ms. Bibi Hosein 50. The witness was a former owner of the Defendants property and her evidence was that no cars were parked on the disputed strip of land because of the wall between the two properties. She stated that the Dass family used their 4 feet strip to gain access to their property, prior to the removal of fence. 51. She testified that Mr. Bichar Dass asked for her permission to remove the wall between the properties so as to enable him to park his vehicle and she stated that she and her husband both agreed and permitted Mr. Bichar Dass to remove the separation wall. 52. The court could find no credible basis upon which it could reject this witness evidence and was convinced that she was a witness of truth. Mr. Yudhisthir Dass 53. Mr. Yudhisthir Dass is the son of Jiwan Dass and the owner of Parcel A on the Dass property which previously belonged to Mr. Bichar Dass. 54. Mr. Dass stated that the 4 feet strip of land and the disputed strip of land was not the only access route to the upstairs of the Dass property and that access was previously enjoyed by passing through the downstairs. However, he testified that the Claimant constructed a wall and blocked her passage through the store. 55. He stated that the Dass family began using the disputed strip of land during the year 1999 and Mr. Patel and his uncle Mr. Bichar Dass told him as a child why the separation wall was erected. 56. The court found that Mr. Dass evidence was consistent and compelling and the court could find no reason to disregard same. The court found as a fact that the 4 feet strip of land on the Dass property had been used by all owners of the Dass property and that they also used the disputed 4 feet strip after the wall that separated both properties was removed in The court further found as a fact that this situation of shared use Page 12 of 15

13 continued until the Claimant erected her electric gate around the year 2012 and commenced unilateral occupation of the entire strip. Ms. Zora Rahamut 57. She stated that many years ago when she would go onto the disputed strip of land to get water from a pipe which was about 5 feet inside the property and she testified that there were two gates which came together and closed in the middle which remain unlocked. She further stated that behind the gates was a wall which separated the Dass property and the Defendants property. Mr. Subash Ramdularsingh 58. Mr. Ramdularsingh testified that he knew the Dass family and Ms. Bibi Hosein as neighbours. He stated that he was hired by Mr. Bichar Dass to remove the wall between the two properties sometime during the years 1998 or 1999 and that he was paid $ to break down the wall and remove the debris. 59. The court found this witness to be a witness of truth and found as a fact that Mr. Dass, in 1998 or 1999, paid to him $ to break the wall that separated the Dass property from the Defendants property. The Site Visit 60. On October 13, 2016, the court conducted a locus in quo and viewed the disputed strip. The court observed that there was terrazzo to the front of the Defendants property and that a portion of the disputed strip was also in terrazzo. The court saw boundary markers and formed the view that the markers appeared to delineate and separate the Defendants property from the Dass property and further it appeared that the disputed strip of land fell within the Defendants boundary line. Between the two 4 feet strips separating the Claimant s land from the disputed strip of land, there was an approximately 1 foot wide strip plastered in mortar, and it appeared to the court that it was more probable that this was the area upon which the separation wall was erected. Page 13 of 15

14 Findings of Fact and Resolution of the Issues 61. Having considered the evidence, the court preferred the case presented by the Defendants and rejected the Claimant s evidence as to the duration, nature, use and occupation of the disputed strip of land. Having found that the use of the disputed strip of land commenced in 1999 by Mr. Bichar Dass, and that same was with the consent of Ms. Bibi Hosein, the Claimant s claim in adverse possession must fail. The Court also found that there was no circumstance in this case that gave rise to the existence of a tenancy at will in favor of the Claimant and the use of the disputed strip after 1999 was not exclusive to the Claimant as members of the Claimants family as well as the Defendants had use of same until Accordingly, the Claimant s case has to be dismissed. 62. With respect to the Defendants Counterclaim, the Defendants sought Special Damages in the amount of $37, for the replacement of the wall and $30, for injunctive proceedings. 63. The First Defendant, in his witness statement, did not provide the court with any evidence to prove the special damages claimed on the Counter-claim. Furthermore, the court noted that the Defendants claimed a relief of an inquiry into damages on the undertaking as to damages. The court noted the law regarding undertaking in damages as stated in Injunctions, David Bean, Isabel Parry, Andrew Burns, 12 th Ed., at paragraph 3-03: If the Claimant obtains an interim injunction but subsequently the case goes to trial and he fails to obtain a final order, the defendant will meanwhile have been restrained unjustly and will generally be entitled to damages for any loss he has sustained. 64. During the management this case, the court gave specific directions as to the filing of witness statements and the date of trial, but no order that separated the course of the trial into a determination of substantive issues and the assessment of damages was issued. Accordingly, evidence in support the substantive law with regard to possession and in relation to damages had to be dealt with in the witness statements and the Defendants witness statements did not contain the required information so as to enable the court to make an award of damages as claimed on the counterclaim. Page 14 of 15

15 65. In the circumstances the Court orders and declares as follows: (a) The Claimant s claim is hereby dismissed in its entirety. (b) The injunctive orders made by this court with respect to the disputed strip of land is hereby forthwith discharged. (c) The Defendants are the owners of and are entitled to possession of the disputed strip of land. (d) The Claimant, whether by herself, her servants or agents is prohibited from in any way interfering with the Defendants' use and occupation of the disputed strip of land. (e) The Defendants' claim for damages is dismissed. (f) Costs on the claim is to be paid by the Claimant to the Defendant on a prescribed costs basis in the sum of $14, (g) Costs of the counter-claim to be paid by the Claimant to the Defendants on a prescribed costs basis in the sum of $14, (h) The Claimant is to pay to the Defendant costs on the Injunctive proceedings in the sum of $5, (i) There shall be a stay of execution with respect to all the orders made herein of 14 days FRANK SEEPERSAD JUDGE Page 15 of 15