Provisional leases do not extinguish native customary rights unless duly surveyed and validated; claims for native rights are maintainable in private law actions despite administrative decisions, reflecting the balance of public and private interests.

[8] The Kuching High Court in the 1st suit gave judgment ("High Court Judgment") in favour of the plaintiffs (Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors, HC) on 12 May 2001 and Ian HC Chin J made, inter alia, the following order in his judgment that defined "the disputed area" as follows (exh."GBI5" of Ghazali's affidavit):

(a) the plaintiffs are entitled to exercise native customary rights in a disputed area measuring 672.08 hectares approximately;

(d) the disputed area is to be reckoned by reference to the map admitted in evidence during the trial as exh. P172 following as closely as possible the boundary of the disputed area that has been marked on the map.

[9] The map, exh. P172 from the 1st suit (exh. "GBI6" of Ghazali's affidavit) ("exh. P172") shows the entire area of the Original NCR land (18,952 157 acres) claimed by the plaintiffs in the 1st suit including the balance of the undisputed area (17,227 acres).

[10] The High Court judgment (see Nor Anak Nyawai's case at pg. 253) had incorporated a simplified version of the map exh. P172 (or map A) ("judgment map"). This judgment map is also reproduced by the Court of Appeal in their judgment reported in Superintendent of lands and surveys, Bintulu v. Nor Anak Nyawai & Ors and Another Appeal, [2006] 1 MLJ 256 CA, (see p. 3 of exh. "GBI8" of Ghazali's affidavit). The judgment map is reproduced in the first schedule hereto.

[11] In the judgment map it has this caption: "Boundary of land over which the plaintiffs' claim native customary right" near where the part of lot 15 is to have encroached into the original NCR land.

[12] Now in this action, by para. 3(a) of the plaintiffs' statement of claim the same plaintiffs are claiming as the NCR land, all the lands in "rumah luang/rumah Nor in Sungai Tajem, Sungai Tajem and Sungai Ipuh, Sebauh, Bintulu Division, Sarawak" as delineated in red in the map marked "M" annexed to plaintiffs' statement of claim ("map M"). Map M is set out in the second schedule hereto.

[13] Based on map M the boundary of the NCR land claimed has been extended beyond the original NCR land to include about 2/3rd of the area of 1st defendants lot 16 (coloured blue) and half of the area of adjoining lot 15 (coloured red). This can be seen when we compare the boundary of the original NCR land in either exh. P172 or map A or the judgment map, in relation to the map in exh. "GBI7" of Ghazali's affidavit ("defendants map"). Lot 16 can be seen to be located outside the boundary of the original NCR land and about 1/6th of the land area of lot 15 (or 178.424 hectares) is located within the original NCR land. The defendants map is set out in the third schedule hereto.

[14] Further, the plaintiffs and the defendants in the 1st suit had all appealed by Court of Appeal Civil Appeals NO Q-01-42 of 2001 and Q-20-504 of 2001 against the decision of the High Court in the 1st suit ("the appeals"). The Court of Appeal allowed the defendants' appeal and dismissed the plaintiffs cross appeal for damages on 8 July 2005.

[15] The plaintiffs did not make any reservation about the fixing of the extent of the plaintiffs' claimed boundary based on the original NCR land in the 1st suit nor cross appeal on the High Courts acceptance of this boundary limitation notation onto the judgment map right up to their appeals to the Court of Appeal.

[16] The plaintiffs' applications for leave to appeal to the Federal Court against the appeals were dismissed.

[17] The 1st defendant's right as the registered proprietor of lot 16 has been recognised by the Court order dated 20 November 2009 ("possession order") in High Court originating summons NO 24-74 of