Ong CJ:

(Malaya) This is an exceptional and difficult case in which my brethren have reached different conclusions. It behoves me, therefore, to state fully my reasons for preferring one to the other.

All the relevant facts have been set out in the other judgments, thus sparing me the task of repeating them here. I need therefore only refer briefly to such facts as I consider material to my decision.

In Civil SuitNo. 120/58 the plaintiff, Haji Ahmad, sued for specific performance of what Hill J described as a typical jual janji agreement. He pleaded the contract, full payment of the agreed price and his being given possession of the lands and titles thereto upon making such payment. The relief claimed by him from the defendant (who is the present respondent) was simply the execution of a transfer of the lands in his favour.

By her defence, the respondent traversed all allegations of fact set out in the statement of claim, except as to Haji Ahmad being in possession of the lands as purchaser. His possession, she alleged, was by virtue of a lease given to Haji Ahmad by her late husband. This, of course, made the question of title an issue clearly falling to be decided in the action. Accordingly, the question of fact which Hill J said he had to determine was whether Haji Ahmad had paid the purchase price of $1,300 in full and the learned Judge found as a fact that it was so. He accordingly ordered specific performance.

If, as the respondent alleged in her defence, Haji Ahmad was merely in possession as a tenant or lessee and he was disputing the title of the landlord or lessor, the respondent should, as a matter of course, have added to her defence a counterclaim for repossession. She did not. Her appeal against the decision of Hill J was solely confined to one ground - that the trial Judge erred in holding that Haji Ahmad's possession of the lands and titles thereto defeated the plea of limitation. She succeeded on that ground in the Court of Appeal. But, by her own default, she had conceded defeat on the question of title or right to possession.

The judgment of the appeal Court was delivered by Thomson CJ In referring to the agreement it may be observed that he said: "What we are concerned with is clearly a moneylending transaction". The date of the agreement was 14 July 1936. On the evidence, such as it was, he held that the payment by Haji Ahmad must have been made not later than 14 June 1939. In his opinion time started running from that date and, irrespective of whether the period of limitation was three years under s. 22 of the Kedah Limitation Enactment (for specific performance of a contract) or six years under s. 26 (for recovery of land), the action was barred by limitation. On this ground, and this ground alone, Hill J was reversed and his judgment set aside. The issue decided on appeal was simply this: was the agreement enforceable by action after the lapse of time?

Whilst upholding the procedural bar of limitation, it was, however, expressly stressed by the learned

Chief Justice that227

The trial Judge's finding that the whole of the $1,300 was paid has not been attacked before us and must be accepted."

The order of the Court of Appeal accordingly went no further than to set aside the order for specific performance. The Court was, of course, well aware that Haji Ahmad was in possession of the lands and titles. It was implicit in the judgment of Hill J that the Haji was put in possession as a purchaser - not, as alleged by the respondent, that the Haji was a tenant or lessee. Hill J's finding of fact indubitably was a decision on right and title to the lands. It was an issue raised clearly on the pleadings and conclusively determined. The Court of Appeal, in express terms, affirmed the decision of Hill J on this point.

What then was the legal position of Haji Ahmad and his successors in title, the present appellants, by virtue of the above judgment? Lysaght v. Edwards (1876) 2 Ch D 499, 506 provide