REPUBLIC OF TRINIDAD AND TOBAGO

No. 775 of 2005

IN THE HIGH COURT OF JUSTICE

BETWEEN POPO HANOOMAN AND RAMBERRAN DURGA DEFENDANT PLAINTIFF

Before the Honourable Justice David Harris Appearances: Mr. Camacho instr. by Mr. Terrence Martin Milne Ms. Bridgid Mary Annissette - George for the Plaintiff

for the Defendant

JUDGMENT

1. This is a dispute arising from the contested ownership of a parcel of land in St. Augustine, in the Ward of Tacarigua, Trinidad. The Plaintiff claims, by way of a Root of Title

commencing in 1947 (which recites a 1913 lease) and the Defendant by way of Title commencing 1914 buttressed by a Deed of Rectification dated 2002. Both parties, in the alternative, claim that in any event the other parties claim to being the paper title owner, has been extinguished by virtue of the long and undisturbed possession of the other respective party. The factual assertions of the parties are in material particulars, diametrically opposed to each other.

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FACTS 2. The facts of this matter are that by a Lease of Crown Lands evidenced by a Deed made 7 day of June 1947 and registered as No. 5862 of 1947 between HIS MOST EXCELLENT MAJESTY, GEORGE THE SIXTH, the Lessor, and one JAMES GUNNESS BHARATH, the Lessee, the property described in the Schedule was demised to the said Lessee for the balance of the residue of the term of 999 years commencing on 7 November, 1913.

3.

The parcel was described as a parcel containing 9750 superficial feet situate at St. Augustine, Field 33 in the Ward of Tacarigua and bounded on the North by Ganga Trace forty feet wide, on the South and West upon lands of Seecharan and on the East upon a road reserved fifty feet wide on the plan hereto attached. The attached plan showed the boundaries described in the schedule. The lease was duly registered. 1

4. By Deed of Assignment dated 21 July 1972 and registered as No. 3943 of 1972 and made between JOHN WELLINGTON BHARATH also called John Stanley Wellington Bharath also called John Shirley Wellington Bharath of the one part (the vendor) and AKNATH HANOOMAN and his wife POPO HANOOMAN (the purchasers), the Vendor assigned his leasehold interest in the parcel described in the schedule to the said purchasers as joint tenants. The recital refers to the 1947 registered lease from the Crown to James Gunness Bharath (now deceased.)2 The schedule to this 1972 Deed of Assignment describes the property in substantially the same terms as the 1947 lease. Aknath Hanooman is now deceased and Popo Hanooman, his wife, and surviving joint tenant and sole survivor, brings this action. The Claimant alleged that from 1972 when she and her husband

Aknath Hanooman purchased the property, she resided on the land until they migrated three years later. The lands, she said, thereafter was occupied by several persons acting in her and her husbands name. She paid Land and Building taxes on the property. Receipts evidencing the payments from as early as 1978 were tendered and admitted into evidence at trial.

5. The Defendant, in opposition to the Plaintiffs root of title set out above, claims that by Deed of Lease made the 18th March 1914 and registered as No. 1428 of 1914 between the Crown and one SEECHARAN, a parcel of land described in the Schedule thereto was

1 2

There is no dispute over this fact. See also para 5 of the witness statement of Sylvia Lutchman.

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leased to the said SEECHARAN for 999 years commencing on the 7th November 1913 The Schedule to that Deed of Lease describes the parcel of land as being formerly part of the St. Augustine Estate and situate in the Ward of Tacarigua and bounded on the North by a road, South by lands petitioned for by Gridharrie and Ramcharran, East by lands of St. Augustine Estate, West by a Road .. containing one acre on the plan annexed . The plan is annexed and dated the 6th November 1913 and initialed the 7th November 1913. The 1947 Deed of Lease in favour of JAMES GUNNESS BHARATH, through whom the Plaintiff claims, referred to a term of 999 years commencing on the 7 November 1913 a date of approximate parity with that of the 1914 Deed of Lease upon which the Defendant relies.

6. The Defendants Title can be traced from the said Deed of 18th March 1914 to a Deed made on the 21st of March 1932 registered as No. 2030 of 1932 and made between SURAG, ROBERT SANKAR and ALFRED DOORGA3 and on to a Deed of 31st January 1964

and registered as No. 2610 of 1964 and made between the Administrator General of Trinidad and Tobago and eight members of the Durga family (The Durgas) including one Sookdeyah Durga and the Defendant herein4. The Administrator General acting for the intestate deceased, Alfred Durga, conveyed to the 8 members of the Durga family as joint tenants, the parcel of land therein described as approximately 12000 sq ft formerly forming a part of a larger parcel comprising one half acre and situate at the corner of Ganga Trace and Streatham Lodge Road at St. Augustine .. and bounded in the North by Ganga Trace formerly described as a road, on the South formerly by lands of Sonas now Suraj; on the East by a parcel of land sold (out of the original one half acre) to C&B Lutchman and on the West by Streatham Lodge Road, together with a tapia house thereon.

7. By Deed of Conveyance dated 19 September 1950 and registered as No. 7697 of 1950, ALFRED DURGA conveyed to CHAN LUTCHMAN and BOODRAM LUTCHMAN a parcel of land containing two lots described therein in a manner not entirely consistent with the more recent descriptions of the land, the subject of this action5. This Deed of Conveyance does not set out the area of the lands conveyed. Further, this Deed of Conveyance refers
3

Prior to this, the parcel described therein, was the subject of several Deeds of Assignment culminating in a Partition, after which Alfred Doorga[sic] held his severed parcel to his uses. See the recitals in the 1932 Deed referred to above. 4 See first, the Deed of 1950 referred to in para 7 below. 5 The witness, Sylvia Lutchman, inherited this parcel of land.

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to the Conveyance of lands held in fee simple. Both parties have framed their action in a manner that at the very least implies the subject lands are leasehold lands. Part of the Defendants case is that he has been paying the lease rent for the subject (disputed) lands. 8. All the eight joint owners the Durgas6 - died without having severed the joint tenancy save for, Sookdeyah Durga and the Defendant herein. Sookdeyah, by a Deed of Gift dated June 27 2002, conveyed all her interest in the property7 to the Defendant.

9. Save for the Deed dated 18th March 1914 and relied upon by the Defendant, - which described the property in terms not recognizable by the description in more recent Deeds, plans and in the evidence by both parties, all the other relevant documentary descriptions refer to the Eastern boundary of the Durgas land claimed by the Defendant by virtue of its Deeds (see the 1964 Deed), being that of Sylvia Lutchman. The subject lands are further East of Lutchman and not adjacent to the Durgas Lands. 10. Finally, by a Deed of Rectification made the 28 December 2004 and registered as No. DE 200500263351 and made between Sookdeyah Durga also called Sookedya Ramkissoon also called Sookdaye Ramkissoon and Ramberran Durga, the said Sookdaye purports to rectify the Deed of Conveyance dated 19 September 1950 between ALFRED DURGA (deceased) and CHAN LUTCHMAN AND BOODRAM LUTCHMAN. The Deed of

Rectification seeks to convey an additional area of land which it is claimed was inadvertently left out and ought to have been conveyed to the Durgas including Sookdaye, in 1950, by some 19 perches (3000 sq ft 8), which in the end, by virtue of the death of several of the Durgas and the Deed of Gift from Sookdaye to the Defendant, would add to the size of the area conveyed to the Defendant. There is no evidence that Sookdaye was the lawful representative of the Estate of Alfred Durga, who it is alleged was the author of the inadvertence, or otherwise lawfully authorized to effect the Deed of Rectification9.

See para. 6 above i.e. the same property described in Deed registered as No. 2610 of 1964 8 By the evidence of the Defendant 9 Neither is there any evidence of the basis upon which it was determined that the original conveyance was incorrect and/or did not convey what was intended or available on the ground to be conveyed by Alfred Durga (decd.).
7

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11. The Defendant counterclaims for possession of the 9750 sq ft on the grounds of (i) being the paper title owner10 or; (ii) by virtue of the long possession of the said property.

CASE FOR THE PLAINTIFF 12. The Plaintiffs case is entirely set out in her pleadings, evidence and in her written submissions filed on the 31st January 2011.

13. She claims among other reliefs, a Declaration that the Plaintiff has the legal right, title and interest in the land which is the subject of this dispute, under and by virtue of Deed dated 21st July 1972 and registered as No. 3943 of 1972. The Plaintiff claims that the acts of the Defendant in carrying out works to build a wall on the property amounts to a trespass and that not knowing that the land belonged to someone else, is not a defence to an action in trespass.11 14. Citing Section 3 of the Real Property Limitation Act Chapter 56:03 and the cases of Powell & McFarlane (1979) 38 P&CR 452; JA Pye (Oxford) Ltd. v Graham (2003) 1 AC 419; Smith v Benjamin Civil Appeal 67 of 2007, Ali v T.H.A Civil Appeal 43 of 2008. The Plaintiff contends that the Defendant has failed to establish factual possession of the Plaintiffs land. The Plaintiff contends that what in effect are trivial acts of possession testified to by the Defendant, will rarely suffice to establish adverse possession12. Counsel for the Plaintiff submits that in the circumstances of this case, an act such as playing on the land as a child, paying to cut it and paying the lease rent, are too trivial an act(s) to warrant

serious consideration by the Court. 15. Further, the Plaintiff contends that the Defendant has attempted to establish the right to possession on the part of his parents and brother, but has not shown the basis upon which he can claim these rights on their behalf or as Legal Personal Representative or otherwise. The Plaintiff urges the Court to disregard the evidence of the alleged acts of possession as

The Defendant curiously claims the 9750 sq ft in an effort to regain the 3000 sq ft he gained by virtue of the Deed of Rectification. 11 Conway v George Wimpey & Co. Ltd. [1951] 2 KB 266 12 th Megarry & Wade, Law of Real Property 6 Edition (2000) pp 21-018

10

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either hearsay or by virtue of the several concessions or admissions made by the Defendant in cross examination 13 16. It is the case for the Plaintiff that she is the paper title owner of the subject lands and that certainly from 1972 to date, it was the Plaintiff and her family that had factual possession of the lands. She relies on the evidence of Chansingh Ramkay and Sylvia Lutchman. 17. The Plaintiff claims that the Deed of Rectification relied upon by the Defendant in his Defence and Counterclaim was fraudulently procured14 and should be set aside. She contends further, that the Deed of Rectification was made and used with the fraudulent intention of misappropriating the Plaintiffs lands.15

CASE FOR THE DEFENDANT 18. The Defendant has not denied the allegations of entry on the said dates but he has denied that the alleged acts constitute trespass, as the Plaintiff was not in possession of the said parcel of land at the material times. Further, the Defendant has denied the removal of trees and plants claimed by the Plaintiff namely a plum tree, three fig trees some ochre and pepper trees. The Defendant also claims, that there were no such crops on the land and that any vegetation on the land at the material date were trees which were planted by the family of the Defendant.

19. The Defendant counterclaims for a Declaration that he is entitled to possession of the said parcel of land and that the Plaintiff has no right title or interest in the said lands. The Defendants case is that since the year 1932 up to 1961 one half acre of land bounded on the North by Ganga Road on the South by lands of Suraj on the East by Deenah Road and on the West by Straetham Lodge Road inclusive of the said subject parcel of land was in the possession and under the control of his father Alfred Durga with the intention to use it for his sole benefit by virtue of the occupation of Norah Johnson who was a tenant of Alfred Durga16. It is not contradicted that the said parcel of land, the subject of these proceedings, was in the occupation of one Norah Johnson for a period of time until her
13

Such as that his father never collected rent from Mora Johnson and that he didnt know if his father had a deed for the Plaintiffs land and that he never saw his father planting crops on the land or build any structure thereon 14 Lloyds Bank v Marcan [1973] 3 AER 754 ( at p 759) 15 See pleadings for Particulars. 16 None of the Deeds relied upon by the defendant as his root of title describe the lands in these terms however.

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demise, on or about 1964. The Plaintiff is relatively silent on the issue of possession of the land by Norah Johnson or anyone else, prior to the 21st July 1972 and has based her case on title derived by the said Deed registered as No. 8943 of 1972 and her continued occupation of the lands as an owner in possession. The Defendants case is based on the possession by Alfred Durga, from 1932, which he submits is sufficient to extinguish the title advanced by the Plaintiff through her predecessor in title, well prior to the Plaintiffs purchase in 1972.

THE EVIDENCE

20. This case turns on the strength of the evidence of the fact and length of continuous possession of the subject lands by the respective parties. To this end, having assessed the validity of the paper titles of the respective parties, I assess now, the evidence in relation to the factual possession and intention to possess the subject lands.

21. First, however, the Court is urged by the Defendant to find that the Deed of Rectification registered as No. DE200500263351 dated 28 December 2004 does not constitute a fraudulent assignment on the ground that the said Deed does not in any form or manner deal with the said parcel of land. It purports to deal with a parcel of land comprising approximately 12,000 square feet and which is bounded on the North by Ganga Trace formerly described as a Road on the South formerly by lands of Sonas now Suraj on the East by a parcel of land sold (out of the original one half acre) to C and B Lutchman and on the West by Streatham Lodge Road which is described in the Deed of Gift registered as No. DE200201694569 and which, the Defendant now submits, clearly does not deal with or in any manner describe and/or include the subject lot. If it is that the Defendant does not rely on the Deed of Rectification, then that Deed of Rectification is substantially taken out of the equation, save that the Defendant in cross examination did rely on the additional land conveyed to him by virtue of the Deed of Rectification as a basis for claiming the paper title to the subject land. If he no longer makes this claim, then having regard to all the circumstances referred to earlier in this judgment, in my view, on the evidence it appears that the Plaintiff is the paper title owner.

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22. I accept the evidence of Chansingh Ramkay. His evidence was also put before the court at an earlier interlocutory hearing17. His evidence is substantially consistent with that of Sylvia Lutchman. I accept Sylvias evidence over that of all other witnesses in this matter and by itself, is, in my view sufficient to determine this matter. I accept that she is an independent witness. I accept that she has no real vested interest in the outcome of the matter. Even if the unsubstantiated suggestion by the Defendant that the Plaintiff allowed Sylvia Lutchman to enclose an additional four feet of land within her boundary wall was true (and I do not accept that it is), she has already received that benefit and if she is such an unscrupulous a person as seems to be suggested by the Defendant (which is not the view of the Court), then she may well not consider herself bound to testify in favour of the Plaintiff at this stage.

23. Sylvia Lutchmans evidence is not inconsistent with the history of the land ownership as reflected in the various Deeds, descriptions of the subject lands and several plans.

24. Lutchmans evidence was; that when she first came to live on her land, the tapia house on Popos land was occupied by Nora Johnson, whom she knew afterwards as neighbor Johnson. There were two other people living with her whose names were Basdeo and Petra and whom Lutchman believed were tenants of neighbor Johnson.

25. She said that neighbor Johnson lived on Popos land and they became friends until she died a few years later.

26. She said that she has known the Plaintiff for many years as she lived with her parents and family on Deenah Street to the East of Popos Land when she, Lutchman, moved to her land in 1964. 27. Lutchman testified that after the death of Nora Johnson, Popo Hanooman lived in the tapia house on Popos land with her husband and 4 children for 2 or 3 years before she emigrated to the United States of America.

17

The Court has subjected his hearsay evidence contained in his earlier contemporaneous Affidavits filed in this matter to the requirements of section 41(3)(a) of the Evidence Act Chap. 7:02 applicable to hearsay evidence.

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28. After Popo and her family emigrated to the United States, Popos Aunt whom Lutchman knew as Deedee lived in the tapia house with her family on Popos land for a couple years until she moved and Popo Hanoomans sister, Ramdularie Arjoon, who Lutchman knew as Chan, moved in the tapia house on Popos land with her husband and her child. 29. Chan lived in the tapia house on Popos land with her husband and 2 children for many years. They became good neighbours and Chan would assist Lutchman with her children on some occasions. 30. After Chan left Popos land, the tapia house was knocked down, but a galvanized shed was left standing on Popos Land.18 31. Since Popo Hanooman owned the land her father used to take care of the land. He planted a coconut tree with some short crops such as cassava on the land. After the fathers death Popos sister who LutchmanI knew as Dulin and her brother who she knew as Boyie and who lived in their family home across the street from Popos land, maintained it. Boyie also planted some short crops such as peas on Popos land. 32. After the tapia house was knocked down (or fell down on its own19), Boyie and another of Popos brothers whom she knew as Jerry and some of their male friends would have a cook out on Popos land some weekends. 33. The galvanize shed has since been knocked down. 34. Sylvia Lutchman testifies that Boyie continued to maintain Popos land until he died 2 or 3 years ago. 35. Lutchman testified further that she has known the Defendant for many years to be the owner and occupier of a parcel of land together with the dwelling house situate at Corner of Ganga Street and Streatham Lodge. 36. With respect to the location of the lands of the respective parties she testified in chief that: The Defendants land is situate to the west of another[sic] of land together with a

There was much (too much in my view) contention and conflicting evidence about who (if anyone) demolished the tapia house. 19 Contrary to other evidence for the defendant

18

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dwelling house which to the best of my information and belief is owned by the Defendants brother and is now occupied by the Defendants nephews. The other piece of land is situate to the west of my land Popos land has never been enclosed to the eastern and northern boundaries and until the eastern boundary of my land was enclosed in a wire fence. In 2004 I erected a concrete wall to replace the wire fence on the eastern boundary of my land20.

37. The Court is urged by the Defendant to view very stringently the evidence of the witness Sylvia Lutchman, who he says admits in Cross Examination, that she knows nothing of the said parcel of land or of the area, prior to her coming to live there in 1964. The Defendant contends that it is only when the Sylvia sought to remove a pre-existing wire fence which she met in place when she moved in 1964 - presumably placed there by her predecessors in title - and replace it with a wall , that she received a letter from the then Attorneys-atlaw for the Defendant. Further, contends the Defendant, the witness was evasive and conveniently remembered nothing and dates other than those of the matters she gave in Evidence in Chief. Her statement that she knew the land to be owned by James Bharath and afterward by his son John Bharath is a bald statement. The Defendant suggests that the witness also, in her evidence, claimed that she knew Norah Johnson and one Basdeo along with Petra, whom she believed to be tenants of Norah Johnson. Again he says, this is a bald statement with no information being provided by the witness for the basis of her statement. She did not know Deosaran Ramsaran who has been living on Deenah Road, next to the Plaintiffs family home all of his life and who was a childhood friend of the Plaintiff. The Defendant asserts that the witness is at best a witness who possesses a The only other evidence for the Plaintiff is the affidavit

memory of convenience.

evidence of her deceased brother, which has not been tested by cross-examination. Most telling though, in the Defendants view, is paragraph 17 of the affidavit of the said Chansingh Ramkay, of 15th April 2005. Although the Plaintiff admits that she knew Norah Johnson and Peter Johnson to have occupied the said parcel of land she knows nothing of them paying rent to the Defendants father. However, says the Defendant, this is not a positive assertion that Norah Johnson did not pay rent to the Defendants father and the Defendant contends that the Plaintiffs case is sorely lacking in any evidence to establish that her predecessors in title were in possession and he refutes the Plaintiffs claim.

20

See para 18 of her witness statement filed June 11, 2010.

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38. The Defendant has sought to introduce explanations for the descriptions of the subject lands in the Deeds that he seeks to rely on. No evidence has been led by an expert or surveyor to connect the lands in the Defendants Deeds with the subject land. The Court is very unsure of the identity of the lands described in the Defendants Deeds. I am simply unable to say that they refer to the subject lands. I accept however, the Plaintiffs evidence and her Deeds as referable to the subject lands.

39. Ramberran Durga gave evidence21. He said that his mother took actual possession of the lot of land at the corner of Deenah Road and Ganga Road on which neighbor Johnsons house stood and began growing garden crops on it. His brother Balkaran had constructed his home on a portion of his fathers land to the West of the subject lot and more particularly to the West of the Lutchmans lot. He testified contrary to Sylvia Lutchman that; Balkaran assisted his mother with the cultivation of the subject lot. This lot was in garden cultivation up to the death of my brother Balkaran in the year 1997. Throughout the years from my mothers death in and about the year 1975, my family has used the lot as a playground for our children when the lot was not fully cultivated. My sons and my nephews as they grew up used the said lot as a cricket ground and constructed a small shed on the South boundary as the cookhouse from the remnants of neighbor Johnson s house. 40. After the death of his brother Balkaran, he said that he took possession of the land. He testifies that he has been paying to maintain and cut it. Further, he testifies that; I have paid the lease rent for the lands given under the Warrant of Transfer from 1996 up to 2009 and was of the view that the lease rent included payment for the lot situate at the corner of Ganga Road and Deenah Road. My mother siblings and I have been paying the land and building taxes in respect of the parcel of land transferred by the Warrant of Transfer since perches and not 1 rood and 4 perches. The records of the Warden Office fortified my belief that the difference in area as recorded on the deed and on the Wardens Office records included the lot at the corner of Ganga Road and Deenah Road. I

continue to be of the view that the area recorded on the Wardens Office Records

21

His evidence in chief here has been substantially reproduced from his witness statement.

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correctly includes the lot which was occupied by neighbor Johnson and which was in the possession of my father.22(emphasis mine) 41. On the issue of the relevance of the Deed of Rectification to the Defendants claim, he testified in chief that; by a deed dated 27th June 2002 my sister Sookdeye Durga being my only surviving sibling transferred all her share and interest in the lands which were transferred to us by the Warrant of Transfer. By a certain Deed of Rectification dated 28th December 2004 DE200500263351 I sought to have the area of land transferred by the Warrant of Transfer rectified to reflect the entry in the Wardens Office which states that the area that the area bearing assessment number 0 176, which is my assessment number, comprises 1 Rood and 22 Perches. I sought legal advice from my then Attorney at Law and based on that advice my sister and I executed the deed of rectification in December 2004. I have been advised by my present Attorney at Law and verily believe that the said deed could in no way affect the lot the subject of this action which by description was not dealt with by the Warrant of Transfer23. However, I continued to

exercise control over the subject lot of land to the extent that in March 2005 when I observed that Sylvia Lutchman the successor in title of Chan and Boodram Lutchman was erecting a wall which was encroaching on the lot the subject of this action I caused my Attorneys at Law to write her a letter dated 8th March 2005. The Deed conveyed some 3000 sq. ft. He admitted in cross examination that he did not know where the 3000sq. ft. was. This testimony (in chief and in cross examination) is further confirmation of the

Defendants claim being one of a possessory title.

42. In the year 2003, he said he employed one Dexter Heera to mark the western boundary of the vacant lot. Mr. Heera placed stakes in the ground and made a marking on a brick wall which ran east to west on the southern boundary of the lands running from Straetham Road to Ganga Road. 43. He testified that sometime in 2004, his son Toy spoke to him about Sylvia Lutchman, he observed that she had dug a trench to the east of her lot. It appeared to him that the trench was outside the markings placed by Mr. Heera and was encroaching on his lot at

In the Courts view, the evidence of the payment of the lease rent is not definitively referable to the subject lands. 23 He testified in cross examination that the Deed sought to confer on him the lost3000 sq. ft. He however indicated that at the time of the execution of the Deed of rectification he was not aware that the disputed parcel measured 9750 sq. ft.

22

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the corner of Deenah Road and Ganga Road. He later observed that she was laying blocks. The Defendant went to his Attorneys at Law Messrs Badrie-Maharaj Badrie Maharaj and Associates. They wrote to Sylvia Lutchman a letter dated 8th March 2005 and she ceased the construction of the wall. He then decided then that he should place a

boundary wall along the boundary as delineated by Mr. Heera. At that time he hired some work men and was measuring for materials when the Plaintiffs brother Chansingh came and interrupted the workmen. Sylvia Lutchman, he contends, completed the said wall in the wrong place after the Plaintiff commenced her action and an injunction was issued. In cross examination he withdrew this allegation. 44. He said knew James Bharath who lived near the train line at Monte Grande. To his

knowledge at no time during the lifetime of his father or at any other time did the said James Bharath ever lay claim to the said lot of land which was in the occupation of neighbor Johnson or of any lot of land on Ganga Street between Deenah Street and Straetham Lodge Road and which was in the possession and under the control of his father. He testified that he does not know any person by the name of John Wellington Bharat. 45. The Defendant contends that his father and after his death, his mother, siblings and the Defendant himself have at all material times exercised control over and have been in possession to the exclusion of anyone else of the lot of land situate at Corner of Ganga Street and Deenah Street. Popo Hanooman, he testifies, has never laid claim to the

land. The Defendant denies that Chan Ramkay, the Plaintiffs brother, ever lived in a dwelling house on the lot of land. He said that he had made arrangements to block the lot of land on the northern and eastern boundary. It is only then that the Plaintiffs sister Chanloutie Rahaman and her brother Chan Ramkay now deceased claimed that the Plaintiff had a deed for the said lot. The Defendant testified that he said that we should go to the Wardenss Office and sort this out but they refused. I went ahead with my wall but I was being threatened by the Plaintiffs relatives.

46. I know Popo Hanooman since I was a boy he said. My recollection was that she and her family always lived in the United States since the early 1970s. I have never known anyone to live on the lot of land. Popo Hanooman never lived on the vacant lot of land. Chanloutie Ramkay has never resided on the vacant lot. I also know Chan Arjoon. They never resided on the vacant lot. I do not know any Mousie. The only Rajo I know is my sister in law. She was Balkarans wife. She is now deceased. She died about 8 years. She

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lived together with Balkaran in the house next to mine. Rajo never resided on the vacant lot but she assisted my brother Balkaran with the growing of the garden crops on the vacant lot. Chansingh Ramkay to my knowledge never cultivated and or maintained the vacant lot. There were no crops planted on the land at the time I commenced the construction of the wall. There have been no crops growing thereon since the death of my brother Balkaran. The only vegetation on the land is the trees which were planted there by my family.24

47. The Defendant acknowledged in Cross Examination that he does not have any rent receipts for neighbor Johnson. He acknowledges that he did not see his father plant any crops on the land or build anything on the land and that he, the Defendant, did not in his Counterclaim say that he did so either.

48. The evidence of Deosarran Ramsarran of Monte Grande, did not in my view add much to the matter. He said that he works in construction and could read a little. The upshot of his evidence is, that with the exception of a short period, he lived in the area of the subject lands all his life. He said he knew Alfred Durga owned the land. He said that Rago was also known as Tante and that she used to plant up the land. He said that Basdeo and Petra did not live with Mrs. Johnson and that neither Plaintiff nor Boyie ever live on or take care of the land. I do not accept his evidence over that of the Plaintiffs witnesses.

49. Seereeram Durga, the Defendants son gave evidence. Much of his evidence was that which was told to him by his father. He resides on the same premises as his father on Streatham Lodge. He testified that his father was the legal owner of the lands and that he had a Deed evidencing that fact. His evidence was that he gave the Plaintiff (which he also knew as Boyie) a copy of these Deeds as showing them that the land was my fathers. He said that he relied on two Deeds; one from his sister and the Deed of

Rectification. In the end, in cross examination he admitted that he did not know even if my father had a deed. He insisted however that the lands belonged to his father. He

24

See the witness statement of Defendant.

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went on to say that he did not recall anyone living on the lands and that he recalled that the tapia house fell apart and was not knocked down by anyone.

THE LAW 50. In the absence of evidence to the contrary, the law presumes that the paper title owner has possession25. It is for the party alleging possession to the exclusion of all others including the paper title owners rights, to prove it. The onus of proof to establish his possessory title to the Plaintiffs land is on the Defendant in these circumstances.26 Possession for a continuous period of at least 16 years is a necessary pre-requisite to establish adverse possession.27

51. A claim to adverse possession is made up of two significant elements: Factual possession and an Intention to possess. 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 test must depend on the circumstances of the case.

52. The intention to possess means; an intention in ones own name and on ones own behalf to exclude the world at large, including the owner with the paper titleso far as is reasonably practicable...28. It is sufficient if the acts of possession effectively excluded the other party, whether they were specifically directed to him or not.

53. On the question of the intention to possess, following JA Pye (Oxford) Ltd and another v Graham and another [2003] 1AC 419 HL, the common law rule of inconsistent user no longer applies. According to Lord Browne Wilkinson at para. 36 in the Pye case, The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of
25 26

Powell v McFarlane (1979) 38P&CR 452 See The Hon. Mr. Justice P. Jamadar (as he then was) in Chandra Dolly v Ramnarace Sookoo H.C.A. No.1587 of 1997 at pp9 of 20. 27 Section 3 Real Property Limitation Act Chap. 56:03 28 See Justice of Appeal W.N. Kangaloo in Manzoor Ali v Tobago House of Assembly at para 14, Civil Appeal No.43 of 2008 of Trinidad and Tobago;

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the owner. This view is supported by Kangaloo JA in paras 16-21(more particularly para. 20) of the Ali v The Tobago House of Assembly case29. Notions that the squatter should be required to show an intention to own the land or oust or exclude the paper title owner as well as all others or to act inconsistently with his user or adversely towards him is not necessary to establish that the paper title owner was dispossessed. It is sufficient if an intention to possess the land for ones own use and benefit is shown. Where ever in this judgment I use the term adverse possession, I use it in the sense referred to in Pye.

54. I accept these foregoing propositions as the applicable law on the meaning and application of animus possidendi.

55. Having regard to the Burden of Proof resting on the Defendant (or, as in this case; Defendant/Counterclaimant) the evidence relied upon to establish adverse possession must be cogent and clear.30

56. The law with respect to Fraud was discussed by the Court of Appeal in Lloyds Bank v Marchan [1973] 3 All ER 754 and I apply it here.31

CONCLUSION/FINDINGS 57. The evidence of the Defendant and his son Seereeram Durga with respect to the paper title of the Defendant is inherently inconsistent and weak32. The Defendant pleaded a far stronger case than in the end he was actually capable of proving. The pleadings ascribe the paper title to the Defendant. The Evidence in Chief similarly does so, albeit discernably less so. The Cross Examination however, left no case in my view for the paper title to be ascribed to the Defendant33. The Court could not determine any of the Deeds tendered in this matter as reflecting the Defendant as the paper title owner. Further, the

29 30

See also the Privy Council in Goomti Ramnarace v Harrypersad Lutchman [2001] UKPC25 See the Dolly v Sookoo case at p12 of 20, per Jamadar J. fn.19 ante.; see also Higgs v Nasssauvian Ltd[1975] 1 All ER 95 at 100 (letter h) 31 See Lord Cairns LJ at pp. 760 & 761 (letters j,a,b,c) ; see also para 46-48 of the written Submissions of counsel for the Plaintiff for the Plaintiffs full submissions on the point. 32 Ramberran Durgas Affidavit of April 2005 was also admitted in evidence and considered. 33 See also the defendants written submissions filed in this matter.

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description of the lands on the Deeds relied on by the Defendant do not definitively refer to the disputed lands as described, or expressly or impliedly acknowledged in the respective testimony of all the witnesses in this matter. The Defendant did not call an expert witness surveyor to interpret the description of the lands on the Defendants earlier Deeds which constituted his Root of Title and relate it to the disputed parcel on the ground. Further, I do not accept that the Defendant has proved that the Deed of Rectification includes the subject lands. In the end, the Defendant appeared to resile from the position of being the paper title owner. On the other hand, the Plaintiff in my view, established by the 1972 Deed, the plan attached and the testimony of any one of Mrs. Lutchman or the Plaintiff, a good paper title to the disputed parcel of land. The Deed and plan attached described the boundaries in terms recognized by all the witnesses in the matter. Further still, the Defendant, his sons and witnesses all confirmed the identity of the lands referred to on the Plaintiffs Deed and plan as one and the same as that situate at the corner of Dinaah trace and Ganga trace which is the subject of the dispute.

58. In any event, even if the Defendant was the paper title owner as alleged, I accept that the Plaintiff carried out such acts of ownership with the requisite intention, as set out above in the evidence of Sylvia Lutchman, to effectively exclude and dispossess the Defendant and all those who claim through him, since 1972 to the filing of this matter in 2005, some 33 years. The Plaintiff therefore would have also established a possessory title, were she unable to establish her paper title. I believe the evidence of Sylvia Lutchman. She, like the parties and several of the witnesses, was not a young person and she as were the others, was no doubt challenged to recall events that took place a long time ago from 1964. I accept that the Plaintiff and her husband resided in the property after they purchased it in 1972 for several years before migrating to the USA34. I accept the evidence as more probable, that on leaving, she left her brother and sister to take care of the property and that they did so as testified to by Sylvia Lutchman and also by Chansingh Ramkay. The evidence of either of the two witnesses for the Plaintiff, is sufficient respectively, in my view, to make out the case for the Plaintiff.

There is no dispute that they purchased the parcel at that time. The defendant contends that the conveyance was ineffective to pass the paper title to the plaintiff, for he was already the paper title owner of a larger parcel which included the said parcel.

34

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59. I do not accept that the Defendant planted and used the land as his own or that anyone else did so on his behalf. I accept that he attempted to assert certain rights over the property in the year he attempted to fence the property, but did so either under the mistaken understanding that the Deed of Rectification conveyed the land to him, or in an attempt to improperly assert a proprietary right over the property of another. I find that the latter is the more likely scenario. However, I do not find a sufficient factual basis for upholding the allegation of fraud against the Defendant. There is insufficient evidence that the Deed of Rectification in fact includes the subject lands. The Deed of Rectification therefore does not concern the Plaintiff. For this reason, there is no necessity or, indeed, basis for an Order setting aside the Deed of Rectification in this suit.

60. It is odd that the Defendant did not make greater use of the lands that he claimed were his. His son referred to rearing goats on lands elsewhere, but he too never sought to utilize the lands. His son, Seereeram Durga, lived with the father/defendant and did not occupy the subject lands. The Court got the distinct impression from the evidence, that the Defendant approached the occupation of the subject lands with timidity, inconsistent with the rights of an owner. He had developed, it appeared, all of his other lands - which are not in dispute - except this parcel which he now claims. The Court does not believe that the Defendant owned or was under the impression that he owned the subject lands or intended to possess it for his own use and benefit

61. The Plaintiff grew up in the area from childhood. If the Defendant or his father owned and or occupied the land in the very public manner alleged by the Defendant i.e. as the owner and to the exclusion of all others, it appears to the Court that it is more likely than not that the Plaintiff, having knowledge of this fact, would not likely have purchased the land in 1972 to his own detriment. Likewise, if Mrs. Lutchman had reason to believe that the Durgas owned the subject lands(as opposed to the Hanoomans who lived overseas), it is less likely that she would have attempted to encroach on it in full view of the resident Defendant - and as alleged by the Defendant.

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62. In the Courts view, the Defendants evidence in support of his case lacks the clarity and cogency sufficient to discharge his burden of proof on both the Claim and the Counterclaim. On the counterclaim, the Defendant has not made out his case.

63.

Further still, the cogency and clarity of the case for the Plaintiff, although not overwhelming, is sufficient in the courts view, to meet the said civil and evidential burden of proof, had it been on the Plaintiff.

64.

With respect to the claim for Damages for trespass; no pecuniary loss is disclosed in the evidence. The trespass, although justiciable in the Courts view, is at best, nominal, and at the worst, de minimis. There shall be no order with respect to damages for trespass.

65.

On the issue of Costs, Costs follow the event. The Defendant is unsuccessful in both his defence to the Claim and his Counterclaim. It is apparent that the Defence to the Counterclaim is subsumed under the proof of the Claim. Nothing new was raised in the Defence to the Counterclaim in any event.

66. FOR THE REASONS PROVIDED ABOVE, IT IS HEREBY ORDERED AS FOLLOWS:

i.

Judgment for the Plaintiff;

ii.

That the Plaintiff is entitled to the unexpired residue of the term of Nine Hundred And Ninety Nine years from the 7th day of November, 1913 granted by a certain Deed of Lease (the said lease) bearing the date the 7th day of June, 1947 registered as No. 5862 of 1947 and made between His Most Excellent Majesty George the Sixth of the one part and one James Gunness Bharath of the other part in All and Singular that certain parcel or Lot of land, situate in St. Augustine Field 33 in the Ward of Tacarigua in the County of St. George in the Island of Trinidad comprising NINE THOUSAND SEVEN HUNDRED AND FIFTY SUPERFICIAL FEET, and bounded on the North by Ganga

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Trace forty feet wide on the South and West by lands of Sucharan and on the East by a Road reserve Fifty Feet Wide which said piece or parcel of land is more particularly delineated and described and is coloured pink on the plan attached to the said Deed of Lease registered as No. 5862 of 1947;

iii.

That the Counterclaim is dismissed;

iv.

A Perpetual Injunction is hereby

granted to restrain the Defendant whether by

himself, and or by his agents and or servants and or his workmen or otherwise howsoever from entering on the said land or constructing howsoever or building on or fencing the land ;

v.

Costs of the Claim and Defence to the Counterclaim are the Plaintiffs Costs35; to be taxed before the Registrar if not agreed.

DAVID C HARRIS

HIGH COURT JUDGE October 12th, 2011

35

See para 65 above for trial Courts observation on the defence to the Counterclaim.

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