Man loses bid to secure ownership of Mahaica land

Jun 02, 2019 News

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Mohamed Hoosein has failed in his bid to secure ownership of a property and piece of land located at Mahaica, according to a judgment handed down on May 24, last, by Land Court Judge Pricilla Chandra-Haniff at the High Court in Demerara.

According to court documents, in September 2014, Hoosein petitioned the court seeking a Title of Declaration for sublot ‘MH’ being part of Tract A2 on the eastern half of Lot 11 Vevay in the Mahaicony Neighbourhood Democratic Council (NDC) and of 0.4550 acres.
In dismissing Hoosein’s petition, Justice Chandra-Haniff noted that he failed to make out his claim of sole, continuous and undisturbed possession without consent or permission for a period of at least 12 years.
Zariena Alli, Mazum Alli Kudwah, Nasrat Alli, Faizul Rafeek Ally and Hassan Ali were the Opposers and were represented by Attorney-at-Law Saphier Husain.
Hoosein had alleged that he had been recognized as the absolute and sole owner of the land and no one had ever challenged his right to ownership. He had also alleged that he had been occupying the land beneficially for 12 years, and had cleared it of bushes and weeds.

The petitioner had further alleged that since his occupation of the land, he fenced it and planted several coconut trees and had been using it to park his machines, Hymac, bulldozers, tractors and other spares.
By Affidavit in Support of Hoosein’s petition, Ramsumare Kumardat and one Dhanraj, had both alleged that they knew Hoosein to be in occupation of the disputed property for over 12 years, and that he had cleared the land of weeds and bushes. They further alleged that Hoosein used the land to park equipment.
However, by Notice of Opposition filed on November 19, 2014, Zariena Alli and the other Opposers said they are all beneficiaries of the estate of Cecil Kudwah. They alleged that Zariena Alli is the executrix of the estate of Cecil Kudwah who died on February 20, 2000 and was the owner of a piece of land known as “a” part of the east half of Lot 11 Plantation Vevay by transport 888 of 1989 of which the disputed property is apart.
Zariena contended that the contents of Hoosein’s petition were false and that he knowingly and intentionally swore to falsely to deceive the court; that the land contained no weeds or bushes since the land is occupied by Cecil Kudwah and his beneficiaries and that there was a dwelling house on the land which was recently removed and there is also a family burial site and another portion cultivated with coconut trees, various fruit trees and a vegetable garden.
Added to that, Zariena alleged that among other things, “No one recognized the petitioner as the owner of the land; that the petitioner did not occupy the land even for one year and the petitioner by force attempted to occupy the land from August 02, 2014; that the entire petition is a fraudulent attempt to dispossess them of their land and obtain the title in a dishonest manner.”
There were three Affidavits in Support of the Opposers’ contention.
In an affidavit dated September 19, 2014, Ganesh Kuardat, among other things, alleged that there was no fence nor was the land built up for over 12 years since all these things were done within the last two months, and that there were no bushes on the land for over six years.
In another affidavit dated March 9, 2018 one Elvis Outar alleged that there was no machinery on the land and the fence and machinery were not there four years ago, and there had not been bushes on the land for over six years.
Jai Hatim in an affidavit dated March 08, 2018 said that in 2013 he was at the location with an orphanage group and saw there was no occupation of the land by Hoosein. He, too, alleged that there were no bushes on the land for almost six years.
In determining the petition, the court noted that it was an action for a claim to a land by adverse possession in accordance with the Title to Land (Prescription and Limitation) Act, Cap. 60:02 which reads:
“Where the court is satisfied that the right of every other person to recover or any undivided or other interest in land has expired or been barred and the title of every person to the land had been extinguished, title to the land may, subject to subsection (2) may be acquired: (a) By sole possession, user or enjoyment for not less than 12 years; (b) If possession, user of enjoyment is established to the satisfaction of the court; and (c) If possession, user or enjoyment was not taken or enjoyed by fraud or by some consent or agreement expressly made forgiven for that purpose.”
The court found that the mere sporadic and intermittent use of the land by Hoosein would be insufficient acts of possession and further that these acts did not occur for a period of at least 12 years. According to the judgment, Hoosein’s evidence was further discredited by that of his parents who both testified that the disputed land was unoccupied in 2005.
The court placed little weight on the photographs of the land tendered by Hoosein since he alleged that they were taken between 2002 and 2014 with his phone; however he failed to produce the phone in court for the court to verify when they were actually taken.
The judgment added, “The court accepts as a fact that the petitioner (Hoosein) has not been in control or possession of the disputed poverty since 2001. Counsel for the petitioner was unable to disapprove the Opposer’s evidence that during 2000-2013 as beneficiaries of the title owner and openly and freely entered the disputed property and weeded it and utilized it and exercised all rights of ownership and control over it.”

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