Silke J:

This is a claim by the plaintiff, Nyalong anak Bungan, for a declaration that the plaintiff is the lawful rightful owner of that parcel of land situate at Simanggang/Serian Road containing an area of eight acres more or less, under customary right "by virtue that the first person to `berimba' the jungle and farm the land was his father Bungan anak Awan followed by himself and his family"

During the course of the proceedings the original claim was amended to add two alternative claims namely a claim that he had acquired the land in his own right by the clearing of the jungle and cultivation by himself and a further claim that he had acquired in his own right by customary tenure that portion of the land which he had cleared and cultivated himself.

The defendant denies the chum firstly on the grounds that the father of the plaintiff was Chinese by race, secondly that both the father and the plaintiff moved away from the district thus losing all rights, thirdly that the land has been abandoned by the plaintiff for a period of over 15 years and that he has thus lost all rights and, finally, that the land was never in fact cleared at all.

The somewhat confused evidence of the plaintiff, he was unrepresented, was to the effect that sometime prior to the Japanese occupation his father, Bungan anak Awan, whom he admits to having had a Chinese father and an Iban mother, cleared a portion of the land in question. It is not in dispute that the land is that portion marked in pink and shown on map reference W56-2-14 produced by the defendant. Having cleared a portion he then died. After his death the plaintiff with the help of some friends and neighbours cleared the rest of the land and padi was planted twice producing two harvests. This again was all prior to the Japanese occupation. At the time he planted he was living in Kampong Skra about 1'bd hours from the land by boat. The land itself is at Kampong Gamang which is within the jurisdiction of a different Pengulu from the Pengulu at Kampong Skra.

From then on until about five years ago the plaintiff says he did nothing to the land but visited it on many occasions just to look at it.

It is quite clear from the evidence of other of his witnesses that the plaintiff's father was a Chinese and was looked upon as such until he was adopted by Pengulu Sidu at Kampong Tarok and married an Iban wife. It also appears from the evidence of the witnesses, in particular Ugah anak Bansi a very old man and previously Tuai Rumah at Kampong Skra, that plaintiff's father was at Kampong Tarok when, if at all, the land was cleared and that it was only after this that the plaintiff moved to Kampong Skra and from there went to Kampong Gemang to continue to clear the land. I am in no doubt, despite the evidence of the defence witnesses, that some of the land in dispute was cleared by Bungan and some cleared and planted by the plaintiff. I am in considerable doubt however if the entire eight acres were cleared and planted. Eight acres of padi is a very considerable area and one which would be well known to people living in the area. I think the truth of the matter is that some small portion was cleared and planted and that it is possible, this being over twenty years ago, memories of it are somewhat dim.

Further from the evidence produced by the defence I am satisfied that for years past this land has been used by the people of the area as common land from which wood for building purposes has been gathered and also for firewood.

Prior to the Japanese occupation s. 9 of the Land Ordinance (Cap. 81) did not exist and the position was governed by Order L-2 of 1931, ss. 90 and 91, which defined "Native" as being persons belonging to the tribes listed as Native in Sch B to Order L-2. That the. father of the plaintiff became identified with and subject to the Native system of personal law then existing within the jurisdiction of Pengulu Sidu when the Pengulu adopted him I find to be fact. But