Zakaria Yatim FCJ:

This court had earlier allowed this appeal with costs. The decision was unanimous.

We shall now set out our grounds for allowing the appeal.

The respondent, Perbadanan Kemajuan Negeri Selangor (PKNS) filed an application by originating summons under O. 89 r. 1 in the High Court Shah Alam to evict the defendants from a piece of land known as Lot PKNS/PA 124 in Kawasan 1, 2, 3, 4, 5, 6, 7, 8, & 9 in Mukim Sungai Buluh, in the district of Petaling. The defendants were unknown persons who resided on the said land. Subsequently, the appellant, Shaheen binti Abu Bakar (Shaheen) applied to be included as a defendant. Her application was allowed and she was made the second defendant. She also resided on the said land.

At the commencement of the hearing in the High Court, the case against the unknown defendants was settled and the learned judge recorded the terms of the settlement. Shaheen was not included in the settlement, and the learned judge proceeded to hear the application against Shaheen. The learned judge allowed PKNS' application against Shaheen with costs.

Shaheen appealed to the Court of Appeal. There were two other appeals against the decision of the learned judge. The respondent in the two other appeals was Punca Alam Sdn. Bhd. (Punca Alam). The three appeals were heard together. The Court of Appeal dismissed the three appeals with costs. See [1996] 2 CLJ 965; [1996] 1 MLJ 825. Shaheen filed an application in this court for leave to appeal against the decision of the Court of Appeal. Leave was granted and the present appeal is between Shaheen and PKNS.

PKNS' application was supported by two affidavits affirmed by its land officer, Kanisah bte Saabin, on its behalf on 10 November 1994 and 22 May 1995 respectively (Kanisah's affidavits). Shaheen's affidavits opposing the application were affirmed on 26 April 1995 and 4 May 1995 respectively.

In her affidavits, Kanisah averred that PKNS was the owner of a piece of land known as Kawasan 1, 2, 3, 4, 5, 6, 7, 8 & 9 in Mukim Sungai Buluh, Daerah Petaling (the said land). The said land was given to PKNS by the Government of the State of Selangor. On 18 July 1994 PKNS entered into a sale and purchase agreement with Punca Alam. Under the agreement PKNS sold 248 acres of the said land to Punca Alam. A copy of the sale and purchase agreement was exhibited to the affidavit affirmed on November 1994 as exh. "KS-1". According to Kanisah, Punca Alam was entitled to have the land delivered to it in vacant possession under cl. 7 of the agreement for the purpose of a housing project and to build a golf course. She alleged that when PKNS appointed surveyors to survey the land, the surveyors found illegal housing structures on the said land. She claimed that these housing structures were outside the area of land sold to Punca Alam. She contended that the land, including Shaheen's land was on Lot PKNS/PA 124 which was owned by PKNS. In support of her contention she referred to a copy of the suveryors plan of the area exhibited as exh. "KS-2". Kanisah said the housing structures were built on the said land without the consent or approval of the land office and Majlis Daerah Petaling Jaya.

In her affidavit, Shaheen averred that in 1982 the Penghulu of Mukim Sg. Buluh encouraged her father, Hj. Abu Bakar and others to open up new land for cultivation (meneroka) on the said land. They cleared the jungle, fixed boundaries and dug canals. In 1983, Hj. Abu Bakar built a permanent housing structure on his land. He and the other settlers on the said land constructed fish ponds. The fish ponds were registered by the Fisheries Department of the Federal Territory. The Department also gave them different types of fresh water fish for breeding in the ponds. In 1985 Hj. Abu Bakar gave the land to Shaheen as a gift. Shaheen further averred in her affidavit, that the state authority built a surau for the settlers on the said land. The area came to be known as Kampung Sungai R