On May 6, 2022, December 11, 2024 and January 16, 2025, at the headquarters of the People's Court of Giong Rieng district, Kien Giang province, the first instance public trial of civil case No. 15/2014/TLST-DS, dated January 24, 2014 regarding "Land use rights dispute”, according to Decision to bring the case to trial No. 66A/2022/QDXXST-DS, dated April 20, 2022, between the parties:
Plaintiff: Mr. Danh R, born in 1957 (present) and Ms. Thi N, born in 1955 (present)
Same address: Hamlet N, Commune N, Giong Rieng District, Kien Giang Province.
Defendant: Ms. Thi T, born in 1965 (present) and Mr. Luu S (Danh S), born in 1963 (present).
Same address: Hamlet N, Commune N, Giong Rieng District, Kien Giang Province.
Mr. S authorized Ms. T, according to the authorization document dated August 11, 2014.
People with related rights and obligations:
1. Mr. Danh H, born in 1982 (absent) and Ms. Thi Kim D, born in 1992 (absent)
2. Mr. Danh L, born in 1983; Mr. Danh X, born in 1990; Mr. Danh X, born in 1992; Ms. Thi Ut D, born in 1994 (with an application for absence).
3. Ms. Thi H, born in 1988 and Mr. Danh T, born in 1991 (with an application for absence).
Same address: Hamlet N, Commune N, Giong Rieng District, Kien Giang Province.
4. Ms. Thi T, born in 1961 (with application for absence)
Address: Hamlet H, Commune N, Giong Rieng District, Kien Giang Province.
5. Mr. Danh V, born in 1969 (absent).
Address: Hamlet H, Commune N, Giong Rieng District, Kien Giang Province.
CASE CONTENT
According to the petition, the supplementary petition and at the Court, the plaintiff Mr. Danh R - Ms. Thi N stated: Mr. Danh R - Ms. Thi N requested Ms. Thi T - Mr. Luu S and those with related rights and obligations, Mr. Danh H, Ms. Thi Kim D, Ms. Thi H and Mr. Danh T to return the occupied land area according to the actual measurement of 3,502m2, garden land type, belonging to plot 42, map sheet number 30, the total area of the plot is 4,763m2, located in Hamlet N, Commune N, Giong Rieng District, Kien Giang Province, which was granted a land use right certificate by the People's Committee of Giong Rieng District in the name of Ms. Thi N. The reason for the dispute was determined by Mr. R - Ms. N that between them and Ms. T there was a sibling relationship, due to Ms. T's difficult economic conditions, they lent Ms. T a plot of land to build a house and live. The lending of land for housing was not documented and the area was not specified, there was no deadline for return, only verbally said that they would lend a plot of land to build a house. However, during the process of using the land, Mrs. T and Mr. S's family arbitrarily expanded and occupied the disputed land by planting trees. When they found out, they prevented them from using it and from then on the dispute arose. However, during the process of resolving the case, with the encouragement of reconciliation, Mr. R - Mrs. N agreed to recognize for Ms. T - Mr. S the area on the land with the house and ancillary works that Ms. T - Mr. S had built, the specific area was not determined, but according to the land area that was reviewed and appraised by the Court on August 6, 2022, the residential land does not exceed 100m2, the width adjacent to the rural road corresponds to the works that Ms. T built on the land, the length is calculated from the edge of the Cu Lao River to the edge of the ditch behind the house of Ms. T - Mr. S. As for the house of Mr. Danh H and Ms. Thi Kim D, Mr. R - Mrs. N previously requested Mr. H - Ms. D to dismantle and return the land, but after review and appraisal, it was determined that the above land does not belong to plot 42 but to plot 15, map sheet number 30, so Mr. R - Mrs. T withdrew this request to file a lawsuit and determined not to file a lawsuit. In the same case, when there is a dispute, a lawsuit will be filed later. At the trial, the person protecting the legal rights and interests of Mr. Danh R - Ms. Thi N determined that Mr. R - Ms. N requested Mr. S - Ms. T to return the land area of 3,305.5m2 after deducting the area of plot 15 of 1,160m2 and the recognized land area for Ms. T - Mr. S of 355.6m2, the remaining land area that Mr. S - Ms. T must return according to actual measurements is 1,789.9m2, garden land type, part of plot 42, map sheet number 30, located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang province. Force Mr. S - Ms. T to cut down the trees planted on the disputed land to return the above land area for them to use.
In the self-declaration and counterclaim, the supplementary counterclaim, the defendant Mr. Danh S - Ms. Thi T and the opinion of the legal assistant protecting the legal rights and interests of Ms. Thi T - Mr. Luu S stated: Mr. Danh R and Ms. Thi T are siblings, father is Danh K, mother is Thi S (Mr. K and Ms. S have died). The disputed land originated from Ms. K and Ms. S. Mr. R - Ms. N stated that in 1977, Mr. Kho - Mr. Sang divided the land to their children, Mr. R's share of 06 hectares of rice fields and garden land, which was incorrect. This garden land was divided into two parts by Mr. K and Mr. S, one part for Mr. R and one part for Mrs. T. At the time of giving the land to Mr. K and Mr. S, they were still alive, so Mr. K was the one who directly pointed out the boundary between the two parts of Mrs. T and Mr. R's land. The land division was not made in writing, but there were witnesses who knew clearly about the land division, including Mrs. Thi S, Mr. Danh T, Mrs. Thi P, Mr. Danh S... The boundary between the two parts of Mrs. T and Mr. R's land was determined by Mr. K with the boundary being the base of the custard apple tree in the middle of the bank, which has now been replaced by a stone pillar. Mrs. T confirmed that Mr. R and Mrs. N thought that the disputed land was lent to Mrs. T and Mr. S and occupied for use, which was incorrect, as their parents gave it to them in 1980. In 1990, the couple moved to this land to build a house, and Mr. R also helped build the house with them. Since that time, Mr. R and Mrs. N have not had any comments. In 2012, the couple gave their son Danh H a piece of land next to them, but within the area of land that the couple was given by their parents, for Danh H to build a house, Mr. R and Mrs. N disputed and filed a lawsuit. Now Mr. R and Mrs. N request that their family return the above land area, but Ms. N and Mr. S do not agree. Because this land was given to them by their parents and they have been using it since then, it belongs to them. They determined that on this land there are some trees such as jackfruit, star apple, mango, coconut, bamboo, cajuput, etc. and admitted that some trees were planted after the dispute occurred. Mr. S and Mrs. T have counterclaims and additional counterclaims to force Mr. R and Mrs. N to recognize the right to use the land area according to actual measurements of 3,305.5m2, part of plot 42, map sheet number 30, located in hamlet N, commune N, district Giong Rieng, which is under their right to use, forcing Mr. R and Mrs. N to carry out procedures to transfer the right to use the land area to their name. They do not agree to cut down the trees because the land area is under their right to use, so the trees on the land are theirs. However, at the Court, Mr. S and Ms. T decided to withdraw part of the counterclaim, agreeing with the remaining actual measured disputed area of plot 42 being 1,789.9m2, garden land type, with the location and measurements of the edges shown in the on-site appraisal minutes dated June 8, 2022 and detailed in the cadastral measurement extract dated September 6, 2024. Mr. S and Ms. T agreed to separate the land area of 1,160m2 belonging to plot 15, located outside the disputed land location, on which there is the house of Mr. Danh H and Ms. Thi Kim D to be resolved later, not requesting to resolve in the same case.
The people with related rights and obligations, Mr. Danh H and Ms. Thi Kim D, stated: They admitted that on the disputed land there is a thatched house that they built in 2012. They determined that the land belongs to the right of use of Ms. Thi T - Mr. Luu S, Mr. H's biological parents, and they did not occupy or use it as Mr. R - Ms. N stated. Now Mr. R - Ms. N requested that they dismantle and move the house to another place, but they did not agree, so they gave full authority to Mr. S - Ms. T to decide.
In the self-declaration, the people with related rights and obligations, Ms. Thi H and Mr. Danh T, stated: They are the children of Mr. S and Ms. T, and they currently live with Mr. S and Ms. T on the disputed land. Regarding the lawsuit request of Mr. R and Ms. N, they do not agree. They have the same opinion as Mr. S and Ms. T and give full decision-making authority to their parents, they do not dispute.
In the declaration, the people with related rights and obligations, Mr. Danh L, Ms. Thi S, Mr. Danh X, Mr. Danh X, Ms. Thi Ut D, stated: They are the children of Mr. R - Ms. N. Regarding the counterclaim of Ms. Thi T - Mr. Luu S, they do not accept it, they have the same opinion as Mr. R - Ms. N and give full decision-making authority to Mr. R - Ms. N, they do not dispute.
Statement of opinion of the representative of the Procuracy:
On procedural order: The compliance with the law by the Judge, the Trial Panel, and the parties in the case was carried out in accordance with the procedures prescribed by the Civil Procedure Law. However, there are still violations regarding the time limit for resolving the case, which should be rectified in the coming time.
On the view of resolving the case:
Mr. R - Mrs. N filed a lawsuit requesting Mrs. T - Mr. S, Mr. H and Ms. Db to dismantle, move the house to another place and cut down the planted trees to return to them the area of land occupied according to the actual measurement shown in detail in the measurement extract No. TĐ 267-2022 (42-30) dated August 24, 2022, which is 3,305.5 square meters. Considering that the origin of the disputed land was reclaimed and used by Mr. Danh K and Ms. Thi S before 1975, Mr. R is the eldest child in the family, Mrs. T is the second child. According to Mr. R, the disputed land belongs to plot 42, which was given to him by Mr. Kho - Mr. Sang in 1977, at the time of giving the land, he was married to Ms. N. They built a house on this plot of land to live on, but in 1996 they moved to another place to live, so they no longer live on this land. Therefore, the couple lent Ms. T and Mr. S a part of this land to build a house and during the process of using it, they occupied more. Because this land plot had been divided to Mr. R, when the state had a policy to declare and issue a certificate, Ms. N, his wife, declared and had her name on the certificate of land use rights for the above land area in 1995 with an area of 4,763m2, garden land type, belonging to plot 42, map sheet number 30, located in Ngoc T hamlet, N commune, Giong Rieng district, Kien Giang province. Considering that Ms. N had been granted a certificate of land use rights in accordance with the correct procedures of the law and the correct land user, Mr. R and Ms. N's claim for the disputed land area was well-founded.
However, during the process of resolving the case, with encouragement, Mr. Danh R agreed to recognize for Ms. T - Mr. S the land area where Ms. T - Mr. S's house is located, he did not know exactly how much but the width corresponds to the architectural structure that Ms. T built, the length is calculated from the edge of the Cu Lao River to the edge of the ditch behind Ms. T - Mr. S's house. In the re-examination result on June 8, 2022, the land area attached to the architectural structure that Ms. T - Mr. S is located and using is 3,305.5 square meters, Mr. R - Ms. N agreed to recognize for Ms. Thi T - Mr. S, so he requested the Panel of Judges to take note.
Regarding the land area with the house of Mr. Danh Hoang and Ms. Thi Kim Dung, he requested Mr. Hoang and Ms. Dung to dismantle and return the land to him. Regarding some trees including fruit trees and timber trees around the land of Ms. T's house, he determined that Ms. T planted them, so he requested Ms. T to cut them down. However, during the settlement process, it was discovered that the disputed land was partly located in plot 42, map sheet 30, and partly in plot 15, map sheet 30. Currently, the house of Mr. Hoang and Ms. Dung is no longer located in plot 42, map sheet 30, and is not in the disputed area, so on May 13, 2024, Mr. Danh R - Ms. Thi N, Mr. S - Ms. T withdrew their request to resolve the area of 1,160m2 in plot 15, map sheet 30, located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang province.
The parties agreed that if the trees are within the area of 355.6m2, the couple Ms. Thi T and Mr. Luu S have the right to use them. However, for the trees outside the area of 355.6m2, Ms. Thi T must cut down or move them to return the land to Mr. Danh R. Regarding Ms. T's counterclaim requesting recognition of the right to use the disputed land area as belonging to Ms. T and forcing the couple Mr. Danh R and Ms. Thi N to carry out the procedure to transfer the rights to her, there is no basis.
From the above analysis, the Trial Panel is requested to base on points a, d, đ - Clause 2, Article 9 of the 2005 Civil Code; Clause 3 - Article 608 of the 2005 Civil Code; Clause 1, Article 26, Point c, Clause 1, Article 99, Clause 5, Article 166 of the 2013 Land Law; Clause 2, Article 244 of the Civil Procedure Code;
Accept part of the plaintiff's claim and part of the defendant's counterclaim.
Force the couple Ms. Thi T - Mr. Luu S to return the disputed land area of 1,789.9m2 located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang to the couple Mr. Danh R - Ms. Thi N.
Recognize the land area of 355.6m2 (including 100m2 of residential land) detailed in the cadastral measurement extract dated August 24, 2022 and the additional measurement extract dated June 9, 2024 for the couple Ms. Thi T - Mr. Luu S.
Mr. R - Ms. N are responsible for carrying out the procedures to transfer the above land area rights to Ms. T - Mr. S.
The trial was suspended because the plaintiff Mr. R - Mrs. N and the defendant Ms. T - Mr. S withdrew part of the lawsuit request for an area of 1,160m2 belonging to plot 15, map sheet 30, located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang province.
Regarding court fees: the parties are required to pay, but the elderly parties have submitted a request for exemption from paying court fees, so they request exemption.
JUDGMENT OF THE COURT
[1] Regarding the procedural order: Ms. Thi N - Mr. Danh R sued Mr. Luu S - Ms. Thi T for the forced return of the occupied land area. The defendants Mr. S - Ms. T have a counterclaim requesting recognition of the above land use rights and requesting to carry out the transfer procedure. These are disputes over land use rights as stipulated in Clause 9, Article 26 of the Civil Procedure Code. The co-defendants Ms. T - Mr. S have residential addresses in Giong Rieng district, Kien Giang province, so according to the provisions of Clause 1, Article 39 of the Civil Procedure Code, the lawsuit falls under the jurisdiction of the People's Court of Giong Rieng district.
Ms. Thi H, Mr. Danh T, Mr. Danh L, Ms. Thi S, Mr. Danh X, Mr. Danh X, Ms. Thi Ut D, Ms. Thi T and Mr. Danh V as persons with related rights and obligations in the case. The People's Court of Giong Rieng District has validly served the Court's procedural documents to the above-named parties, but the parties have submitted applications for absence from the Court, except for Mr. Danh V who was absent without reason. Therefore, the People's Court of Giong Rieng District has proceeded to try the case in absentia of the above-named parties, which is completely in accordance with the provisions of Clause 1, Article 228 and Clause 2, Article 227 of the Civil Procedure Code.
Regarding the Vietnam Bank for Agriculture and Rural Development, Mr. Danh H and Ms. Thi Kim D, the process of accepting and resolving the case was determined as the person with related rights and obligations. However, at the time of the trial, Mr. R - Ms. N had cleared the mortgage at the Bank and the disputed land area containing the house of Mr. Danh H - Ms. Thi K was determined by the parties to be not in dispute and did not request to resolve in the same case, so the Vietnam Bank for Agriculture and Rural Development and Mr. Danh H, Ms. Thi Kim D no longer had related rights and obligations in the case.
[2] Regarding the content of the case:
[2.1] The subject of the dispute in the case between Mr. Danh R - Ms. Thi N and Ms. Thi T - Mr. Luu S is the right to use the land area according to the actual measurement of 2,145.5m2, garden land type; part of plot 42, map sheet number 30; located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district. The disputed land area above has been agreed by Mr. R - Ms. N and Mr. S - Ms. T on the specific measurement location shown in detail in the cadastral measurement extract dated August 24, 2022 and the supplementary cadastral measurement extract dated September 6, 2024. According to the confirmation of the parties and the verification process of those who know the matter, land plot number 42, map sheet number 30, garden land type, was previously reclaimed by Mr. K and Mr. S (parents of Mr. R and Ms. T). However, the parties in the case have not yet agreed on how the elders divided the land among their children, who was given it, when, what type of land, where it is located, and what is the specific area? When did Mr. K and Mr. S die? When did Mrs. T come back to build a house on the land? Meanwhile, Mr. Danh R and Mrs. Thi N determined that plot 42 was given to them by Mr. K and Mr. S in 1977. In addition to this plot of land, they were also given rice fields by Mr. Kho and all the plots of land given to them by their elders. They have declared and been granted land use right certificates. They said that the time when the elders divided the land among their children was not recorded in writing, but it was clearly stated that whichever plot of land Mr. K and Mr. S divided, that person used it and declared and issued the certificate while they were still alive, and they all knew. When the state had a policy to declare and issue certificates, Mrs. N (Mr. S's wife) declared and was granted a land use right certificate, including plot number 42, on map sheet number 30, the total area granted as shown in the land use right certificate was 4,763m2; at the time of declaration and issuance, Mr. K knew clearly and had no objection or dispute that Mrs. N was the one declaring. After being given the land, he and his wife built a house on this land for a while and used this land while Mr. K and Mr. S were still alive.
Mrs. T also went to declare and issue a certificate for the rice field that Mr. K had divided. However, due to economic conditions, in 1996, Mr. R and Mrs. N moved their house to another place to live and no longer lived on this land, but they still fulfilled their tax obligations in full. According to Mr. R and Mrs. N's statement, the reason why on the land under their use there was a solidly built house of Mrs. T and Mr. S, they determined that at the same time they moved their house to another place to live, because they saw Mrs. T's difficult circumstances, they asked Mrs. T to live on this land and showed Mrs. T and Mr. S a piece of land to build a temporary house. Later, when Mrs. T and Mr. S built a solid house, they also knew and did not object or have any comments. However, during the process of using this land, Ms. T and Mr. S continued to occupy and build a house for their son Danh H, expand and build additional outbuildings and plant many other crops on the land. When discovered, the grandparents prevented them from building or planting more crops, which would change the current status of the land, but Mr. S, Ms. T and their children still blatantly occupied and used it, thereby affecting their legitimate rights and interests.
On the contrary, Mrs. T and Mr. S said that the disputed land belonged to them, and they were also given this land by Mr. K and Mr. S a long time ago, but they could not remember exactly when. When they were still alive, they clearly indicated the boundaries of this land, specifically, their land was adjacent to the remaining land of Mr. R, adjacent to the land of Mr. Danh U and Ms. Thi H, the length from the river bank running straight into the entire plot of land. The time of giving the land was around 1980, but it was not until 1990 that they lived on the land and built a stable house until now, when they built their main house, Mr. R still assisted. They did not agree on the time when they returned to this land to build a house as Mr. R had determined. Although the land giving was not documented, Mr. K stood up to point out the boundaries of the land given, which many people living in this area knew well. Due to the difficult family circumstances, when the government had a policy of declaring and issuing certificates, the grandparents did not often declare. On the other hand, due to the difficult economic circumstances of the family, the grandparents did not have the conditions to declare and issue certificates, so Mr. R and Mrs. N declared all the land that they were given and had their names on the land use right certificate. The grandparents did not know because they thought that their parents had given them and had clearly marked the boundaries somewhere, so whoever used the land could use it. It was not until the grandparents allowed their son Danh H to build a house on the land next to them that Mr. R and Mrs. N prevented them and said that they had a land use right certificate that they knew.
Through the presentation of the parties, the Trial Panel found that the parties' statements were inconsistent and contradictory, so the parties had the obligation to prove and provide evidence. To prove that Mr. R and Mrs. N's lawsuit request was well-founded, they provided the land use right certificate for plot No. 42, map No. 30, which was granted by the People's Committee of Giong Rieng district with the land use right certificate in Ms. N's name, and receipts for payment of taxes and fees. On the other hand, based on the inventory book, at the time the state implemented the policy of declaring and issuing the certificate, Mr. R's wife, Ms. N, was the person whose name was declared. In the case that at the time Ms. N declared, there was a house on the land where Ms. T and Mr. S were living, Ms. T and Mr. S had to object when the measurement was conducted to issue the certificate, but Mr. S and Ms. T had no opinion. In addition, the land plot 42 originated from Mr. K - Mr. S, but when Mrs. N (daughter-in-law) went to declare to issue the certificate, Mr. K was still alive but there was no obstruction or objection. This proves that Mr. K tacitly recognized that the land plot 42 was under the legal use of Mr. R - Mrs. N. In addition, Mrs. T - Mr. S said that at the time the state had a policy to declare and issue the certificate, Mr. and Mrs. T were in difficulty and had to go to the duck farm without a house, so they did not know, so they did not declare to be issued the certificate for this land, but the statements of Mrs. T - Mr. S were not consistent. Because, at the time Mr. K gave the land to his children, Mrs. T was also given the rice field by Mr. K, they had completed the declaration procedure and were granted the land use right certificate at the same time as Mrs. N. However, in the minutes of taking Mrs. T's statement, she stated that the land use right certificate for the rice field Mr. K gave her was declared by Mr. K and then the couple was granted the certificate. Thus, in the case where Mr. K declared the rice field for Mrs. T, why did Mr. K give her the garden land but not declare it to her? In Official Dispatch No. 118/2017/UBND-TNMT dated March 20, 2018 of the People's Committee of Giong District, it was determined that: "... The District People's Committee issued a land use right certificate to Ms. N in accordance with legal procedures and to the correct land user.”. Ms. N has been granted a land use right certificate and the competent authority, the People's Committee of Giong Rieng district, has determined that the granting of the land use right certificate for plot 42 to Ms. N is in accordance with the correct procedures and land users, so Ms. N is recognized by law as a person with legal land use rights and is protected by the State, which is completely in accordance with the provisions of Clause 5, Article 166 of the 1993 Land Law. The family of Mr. S - Ms. T occupied and used the land of plot 42 that had been granted land use rights to Ms. N, thus infringing on the legitimate rights and interests of Mr. R - Ms. N, so the lawsuit to force Ms. T - Mr. S to return the land use rights is well-founded. Considering the request of the representative of the Procuracy and the opinion of the person protecting the legitimate rights and interests of Mr. R - Ms. N, the request to force Ms. T - Mr. S and their children to return the occupied land area is well-founded.
According to the initial lawsuit, Mr. R and Ms. N requested Mr. S and Ms. T to return the land area of 2,381 m2, part of plot 42 of garden land. However, on July 11, 2018, Mr. R and Ms. N filed a supplementary lawsuit, requesting Mr. S and Ms. T to return the land area according to the actual measurement of 3,502 m2, part of plot 42, map sheet number 30, located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang province. The process of resolving the case and the results of the on-site re-evaluation of the disputed land on June 8, 2022 and detailed in the measurement extract dated August 24, 2022 and the additional measurement extract dated June 9, 2024 showed that the area of disputed land according to the actual re-measurement was 3,305.5m2 and in this disputed land area there is a part of land belonging to plot 15, map sheet number 30. In the land plot 15, there is the house of Mr. Danh H and Ms. Thi Kim D. At the Court, Mr. R - Ms. N, Ms. T - Mr. S agreed with the results of the on-site re-evaluation of the disputed land on June 8, 2022 and detailed in the measurement extract dated August 24, 2022 and the additional measurement extract dated June 9, 2024, the land belonging to plot 15 has an area of 1,160m2, The land with the house and ancillary works built by Ms. T and Mr. S has an area of 355.6m2, the disputed land belonging to plot 42 has an area of 1,789.9m2. Mr. R - Ms. N and Mr. S - Ms. T both determined: agreed that the disputed land has an area of 1,789.9m2, part of plot 42 (shown in detail in the measurement extract dated August 24, 2022 and the additional measurement extract dated June 9, 2024). Regarding the land area of plot 15 with an area of 1,160m2 (with the measurement position of the sides shown in the measurement extract dated August 24, 2022), Mr. R - Ms. N, Mr. S - Ms. T determined that there was no dispute and requested to resolve it in the same case, withdrawing part of the lawsuit and counterclaim for the land area of 1,160m2 of plot 15, when the parties have a dispute, they will file a lawsuit later. Therefore, the Trial Panel, based on the provisions of Clause 2, Article 244 of the Civil Procedure Code, suspended the trial for this request of Mr. R - Ms. N and Mr. S - Ms. T.
[2.2] Considering the counterclaim, supplementary counterclaim, and change of counterclaim of Mr. Luu S - Ms. Thi T regarding the request for recognition and enforcement of the procedure to transfer the right to use the land area of 2,145.5m2 to Mr. and Mrs. Luu S, part of plot 42, map sheet number 30, located in Hamlet N, Commune N, Giong Rieng District, Kien Giang Province. The Trial Panel found that Mr. and Mrs. Luu S believed that the disputed land area of 2,145.5m2, according to actual measurements, was given to them by Mr. K, but they could not provide documents and evidence showing the donation and there were no papers to prove that the above land area was under their legal right to use, so their counterclaim was not sufficient to be accepted in its entirety.
At the Court, Mr. R - Mrs. N expressed their opinion, acknowledged and agreed to carry out the procedure to transfer the right to Ms. T - Mr. S of the land area of 355.6m2 (including 100m2 of residential land) of a part of plot 42 (on this land there is a house, ancillary works and crops on the land of Mr. S - Mrs. T). The land that Mr. R - Mrs. N recognized the right to use and carried out the procedure to transfer the right to Mr. S - Mrs. T has the following measurements of the sides:
Side 18-20 has a measurement of 25.8m adjacent to the remaining part of plot 42. Side 18-23 has a measurement of 12m adjacent to the remaining part of plot 42. Side 23-21 has a measurement of 27.9m adjacent to the remaining part of plot 42. Side 21-20 has a measurement of 14.24m adjacent to the remaining part of plot 42.
The above opinion of Mr. R - Ms. N is voluntary, in accordance with the provisions of the law on land, so the Trial Panel acknowledges it. Partially accept the counterclaim of Mr. S - Ms. N, recognizing that Mr. S - Ms. N has the right to legally use the land area of 355.6m2 (shown in the attached cadastral measurement extract TĐ 267-2022 (42-30) dated September 6, 2024).
Because the lawsuit request of Mr. R - Mrs. N was partially accepted, the provisions of Clause 1, Points a, b, d, Clause 2, Article 9 of the Civil Code were applied, forcing Mr. S - Mrs. T and their children Thi H, Danh T, Danh H to return the occupied land of 1,789.9 m2, part of plot 42, map sheet number 30, garden land type, located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, Kien Giang province. The land that Mr. S - Mrs. T and their children were forced to return has the following specific measurements:
Side 7-8 has a measurement of 53.55m adjacent to plot 15.
Side 8-14 has a measurement of 49.82 m adjacent to plot 13 of Ms. Thi Ut. Side 14-10 has a measurement of 76.7 m adjacent to the remaining part of plot 42. Side 10-21 has a measurement of 6.63 m adjacent to the concrete road. Side 7-20 has a measurement of 16.92 m adjacent to the concrete road. On the land that Mr. S - Ms. T were forced to return, through on-site examination and assessment, there were a number of mixed trees of unidentified quantity and a number of coconut trees that Mr. S - Ms. T determined to have been planted in August 2019. During the working process, the parties determined that the number of mixed trees on the disputed land were self-grown, 15 coconut trees and a number of other unidentified plants were planted by Mr. S - Ms. T after the dispute occurred, and Mr. R - Ms. N prevented it. On the other hand, during the process of resolving the case, Mr. S and Mrs. T determined that they did not request compensation for the damage to the trees that they had planted, so the area that Mr. S and Mrs. T were required to return to Mr. R and Mrs. N was 1,789.9 square meters. If there were trees on the disputed land, Mr. S and Mrs. T would have to cut them down or move them. In case Mr. S and Mrs. T did not return the land themselves, Mr. R and Mrs. N would have the right to use and dispose of the trees that Mr. S and Mrs. T planted on the area of land that they were required to return (if any). Mr. R and Mrs. N were responsible for completing the procedures to transfer the land area of 355.6 square meters (including 100 square meters of residential land) to Mr. S and Mrs. T in their name when Ms. T and Mr. S requested. In case Mr. R and Mrs. N did not complete the transfer procedures, Mr. S and Mrs. T would have the right to request the competent state agency to do so.
[3] Regarding court fees and litigation costs:
[3.1] Regarding court fees: Apply Clause 1 - Article 147 of the Civil Procedure Code, Clause 2 - Article 27 of Ordinance No. 10/2009/UBTVQH12 on court fees and charges; Article 48 of Resolution No. 326/2016/UBTVQH14 regulating the collection, exemption, reduction, payment, management and use of court fees and charges;
Because the lawsuit of Ms. N - Mr. R and the counterclaim of Ms. T - Mr. S were partially accepted, the parties must pay the first instance civil court fees without a threshold of 200,000 VND. According to the provisions of Article 48 of Resolution No. 326/2016/UBTVQH 14 on transitional provisions applied in a direction favorable to the parties, Mr. R - Ms. N and Mr. S - Ms. T are elderly people who are exempt from court fees, so Mr. R - Ms. N and Mr. S - Ms. T are exempt from paying first instance civil court fees.
Refund to Mr. Danh R - Ms. Thi N the advance payment of first instance civil court fees of 7,143,000 VND according to receipt No. 09597 dated January 24, 2014 and the amount of 1,260,000 VND according to receipt No. 02781 dated July 30, 2018 of the Civil Judgment Enforcement Office of Giong Rieng district.
Refund to Mr. Luu S - Ms. Thi T the advance payment of first instance civil court fees of VND 3,556,000 according to receipt No. 05332 dated August 25, 2014 and the amount of VND 1,260,000 according to receipt No. 0002763 dated July 25, 2018 of the Civil Judgment Enforcement Office of Giong Rieng district.
[3.2] Regarding litigation costs: Apply the provisions in Clause 1 - Article 157, Article 158, Article 165 and Article 166 of the Civil Procedure Code;
The cost of on-site appraisal is 840,000 VND and the cost of property valuation is 2,296,000 VND, the total litigation cost is 3,136,000 VND. Because the request of Mr. R - Ms. N and Mr. S - Ms. T was partially accepted, each party must bear half of the litigation cost of 1,568,000 VND, but Mr. R - Ms. N has paid in full according to receipt No. 0001084 dated March 13, 2015 and receipt No. 0001083 dated March 13, 2015 of the Branch of the Land Registration Office of Giong Rieng District and invoice No. 0290 dated May 29, 2018 of Kien Giang Real Estate Joint Stock Company, so Mr. S - Ms. T is required to return to Mr. R - Ms. N the amount paid of 1,568,000 VND.
For the above reasons,
DECISION
Pursuant to Clause 9, Article 26, Point a, Clause 1, Article 35, Point a, Clause 1, Article 39, Clause 1, Article 147, apply the provisions in Clause 1, Article 157, Article 158, Article 165 and Article 166 of the Civil Procedure Code; Clause 2, Article 244, Article 266, Article 271 and Article 273 of the Civil Procedure Code; Clause 2, Article 27 of the 2009 Ordinance on Court Fees and Charges 10/2009/UBTVQH12 on Court Fees and Charges; Article 48 of Resolution 326/2016/UBTVQH14 regulating the levels of collection, exemption, reduction, payment, management and use of Court Fees and Charges;
Pursuant to Clause 1, Points a, b, d, Clause 2, Article 9 of the 2005 Civil Code; Clause 5, Article 166 of the 2013 Land Law, to decide:
1. Partially accept the lawsuit request of Mr. Danh R and Ms. Thi N.
Force Mr. Luu S - Mrs. Thi T and her children Danh T, Thi H, Danh H to jointly return to Mr. Danh R - Mrs. Thi N the land area of 1,789.9m2, part of plot 42, map sheet number 30, residential land type + garden; located in Hamlet N, Commune N, District Giong Rieng, Kien Giang Province. The land that Mr. S - Mrs. T are forced to return has the following measurements:
Side 7-8 has a measurement of 53.55m adjacent to plot 15.
Side 8-14 has a measurement of 49.82m adjacent to plot 13 of Ms. Thi Ut. Side 14-10 has a measurement of 76.7m adjacent to the remaining part of plot 42. Side 10-21 has a measurement of 6.63m adjacent to the concrete road. Side 7-20 has a measurement of 16.92m adjacent to the concrete road. Side 18-23 has a measurement of 12m, side 23-21 has a measurement of 33.4m and side 18-20 has a measurement of 25.8m.
(attached with cadastral survey extract No. TĐ 267-2022 (42-30) dated September 6, 2024) Mr. S - Mrs. T and their children are required to relocate the trees planted on the land area of 1,789.9 m2 (if any) to return the above land area to Mr. R - Mrs. N for use. In case they do not relocate themselves when Mr. R - Mrs. N requests, the trees planted by Mr. S - Mrs. T on the above land area (if any) will be under the right of use and disposal of Mr. R - Mrs. N.
2. Partially accept the counterclaim of Mr. Luu S - Ms. Thi T.
Recognize that Mr. Luu S - Ms. Thi T has the right to legally use the land area of 355.6m2, residential land + garden (including 100m2 of residential land), map sheet number 30, part of plot 42; located in Hamlet N, Commune N, District Giong Rieng, Kien Giang Province.
The above land has the following specific location and measurements:
Side 18-20 has a measurement of 25.8m adjacent to the remaining part of plot 42. Side 18-23 has a measurement of 12m adjacent to the remaining part of plot 42. Side 23-21 has a measurement of 27.9m adjacent to the remaining part of plot 42. Side 21-20 has a measurement of 14.24m adjacent to the remaining part of plot 42.
(attached with cadastral survey extract No. TĐ 267-2022 (42-30) dated September 6, 2024).
3. Suspend the trial on the request to return and recognize the right to use the land area of 1,160m2, part of plot 15, map sheet number 30; located in Ngoc Tan hamlet, Ngoc Chuc commune, Giong Rieng district, because the plaintiff Mr. R - Mrs. N and the defendant Mr. S - Mrs. T have withdrawn this request.
4. Regarding court fees and litigation costs:
About court fees: Requiring Ms. Thi N - Mr. Danh R and Ms. Thi T - Mr. Luu S each to pay the first instance civil court fee without threshold of 200,000 VND. However, because Mr. R - Ms. N and Mr. S - Ms. T are elderly and have submitted a request for exemption from court fees, they are exempted from paying the first instance civil court fees.
Refund to Mr. Danh R - Ms. Thi N the advance payment of civil court fees at first instance of 7,143,000 VND (seven million one hundred and forty-three thousand VND) according to receipt number 09597 dated January 24, 2014 and the amount of 1,260,000 VND (one million two hundred and sixty thousand VND) according to receipt number 0002781 dated July 30, 2018 of the Civil Judgment Enforcement Office of Giong Rieng district.
Refund to Mr. Luu S - Ms. Thi T the advance payment of civil first instance court fees of VND 3,556,000 (three million five hundred and fifty-six thousand dong) according to receipt number 05332 dated August 25, 2014 and the amount of VND 1,260,000 (one million two hundred and sixty thousand dong) according to receipt number 0002763 dated July 25, 2018 of the Civil Judgment Enforcement Office of Giong Rieng district.
– About litigation costs: The cost of on-site appraisal is VND 840,000 (eight hundred and forty thousand dong) and the cost of property valuation is VND 2,296,000 (two million two hundred and ninety-six thousand dong), the total amount of litigation costs is VND 3,136,000 (three million one hundred and thirty-six thousand dong). Because the request of Mr. Danh R - Ms. Thi N and Mr. Luu S - Ms. Thi T was partially accepted, each party must bear half of the litigation costs of VND 1,568,000 (one million five hundred sixty-eight thousand dong), but Mr. R - Ms. N have paid in full according to receipt No. 0001084 dated March 13, 2015 and receipt No. 0001083 dated March 13, 2015 of the Branch of the Land Registration Office of Giong Rieng District and invoice No. 0290 dated May 29, 2018 of Kien Giang Real Estate Joint Stock Company, so Mr. Luu S - Ms. Thi T is required to return to Mr. Danh R - Ms. Thi N the amount paid of VND 1,568,000 (one million five hundred sixty-eight thousand dong).
Inform the parties that they have the right to appeal the judgment within the statutory period of 15 (fifteen) days. The presence of the parties is counted from the date of judgment (January 16, 2025); In particular, the absence of the parties is counted from the date of receiving the judgment or the judgment is posted according to the provisions of law.
In case the judgment or decision is enforced according to the provisions of Article 2 of the Law on Civil Judgment Enforcement, the person entitled to civil judgment enforcement and the person subject to civil judgment enforcement have the right to agree on judgment enforcement, the right to request judgment enforcement, voluntarily enforce or be forced to enforce the judgment according to the provisions of Articles 6, 7a, 7b, 7d and Article 9 of the Law on Civil Judgment Enforcement; The statute of limitations for judgment enforcement is implemented according to the provisions of Article 30 of the Law on Civil Judgment Enforcement.
