Suffian FJ (delivering judgment of the Court, and read by Gill FJ in Alor Star):

The plaintiff (appellant) was tenant of padi land belonging to the defendant (respondent).

At the beginning of the 1966-7 padi season the plaintiff began preparing the land for planting when the defendant sent his tractor in, turned out the plaintiff and himself planted padi there that season.

The plaintiff sued the defendant in the sessions Court for damages for trespass. It is to be observed that he did not ask for possession of the land. He asked for -

(1)$1,224 special damages being loss of profit he would have made had be been allowed to cultivate the land that season, and

(2)general damages.

In the event the learned president gave judgment for him for the sum claimed as well as for $500 general damages. He held that there was a relationship of landlord and tenant between the parties. On appeal the High Court varied the president's judgment. The learned appellate Judge held that there was no relationship of landlord and tenant between the parties, that the plaintiff was only a licensee and that the defendant had not given reasonable notice to the plaintiff to determine the licence and that in the circumstances he reduced the damages payable by the defendant to $500.

The tenant has appealed to us.

The question for decision is: was the plaintiff a tenant of the defendant's?

The facts are not in dispute before us.

In 1958 there was a tenancy agreement in the form prescribed by the Padi Cultivators (Control of Rent and Security of Tenure) Ordinance, 1955, executed and registered by the parties. Thereafter there was no such agreement. Nevertheless the plaintiff continued to cultivate part of other land and to pay rent after each harvest to the defendant or to someone else on his behalf. At the beginning of the 1966-7 season after the plaintiff had done some work on the land to prepare for the next planting he was turned out of the land by the defendant and thereafter the defendant himself planted the land. The plaintiff complained to the padi committee, who on 30 July 1966, made an order requiring the defendant to execute a tenancy agreement with the plaintiff. The defendant failed to do so.

Now the land in question is one to which at the material times the provisions of the Padi Cultivators (Control of Rent and Security of Tenure) Ordinance 1955 applied. Section 4(1) provides that -

Where a tenancy agreement is made between a landlord and a tenant, a memorandum in writing in such from as may be prescribed .....[it has been prescribed by Federal LN 121/12 April 1956].... shall be signed by the landlord and tenant ....

Section 5 provides that the memorandum must be deposited with the Registrar by the landlord and if that has not been done the tenant may apply for it to be registered and no landlord shall receive any rent from his tenant or apply for an order of possession unless the memorandum has been registered.

Mr Sharma argues that as after 1958 there was no memorandum in writing of the tenancy agreement as required by the Ordinance the receipt of rent by the defendant was contrary to law, that therefore the whole arrangement between the parties was illegal and this illegality negatived any relationship of landlord and tenant between the parties.

With respect we do not agree. Tenancy agreement is defined by s. 2 simply as meaning "an agreement whereby a landlord agrees to let and a tenant agrees to take any land for the purpose of cultivating padi". It does not say that it must be in writing, so that in our judgment t it could be oral. Though s. 5 says that there must be a memorandum in writing which must be deposited with the registrar, the Ordinance does not however say that if there is no memorandum in writing or if there is a memorandum in writing but it has not been registered, the tenancy is then illegal. In our judgment, in such an event the relationship between the parties is governed by the Kedah Land Enactment.