Gill FJ:

This is an appeal against the dismissal by Chang Min Tat J of the appellant's action in the High Court at Ipoh, in which he claimed for specific performance of an agreement dated 5 June 1947 whereby the respondent had agreed to sell to him her land held under Entry Mukim Register No. 3400 for lot No. 3970 in the Mukim of Sabak in the district of Sabak Bernam. The action was dismissed on the ground that it was barred by limitation.

The facts of the case as set out in the plaintiff's statement of claim are as follows. The plaintiff paid to the defendant the agreed purchase price of $1,000 on the date of the agreement, and the defendant on the same day handed to the plaintiff the issue document of title in respect of the said land. No document of transfer was executed as it would not have been possible to have it registered because of the moratorium then in force, but the defendant undertook to execute a valid and registrable transfer of the land in favour of the plaintiff when the moratorium was lifted. The plaintiff went into occupation of the land, built a plank house with zinc roof thereon and has lived there with his family ever since and paid the quit rent. The greater part of the land was covered with secondary jungle at the time of the sale. He spent about $10,000 in clearing and cultivating the land with coconut trees which are now bearing fruit.

After the expiration of the moratorium period on 30 September 1949 the plaintiff approached the defendant on several occasions and requested her to execute a valid and registrable transfer of the land. The defendant received sums of money from the plaintiff as travelling expenses but failed to call at the land office at Sabak Bernam to execute the transfer. Some time in 1966 the plaintiff lodged a caveat against the land, vide caveat presentation No. 499 of 1966. On 25 October 1966 his solicitors sent a notice to the defendant requiring her to execute a transfer within 14 days from the receipt thereof, but the letter was returned undelivered with the remark "unknown". On 8 November 1966 he caused another notice to be sent to the defendant care of one Kardi bin Tatang, of Parit 5, Sungei Tungku, Telok Anson. There being no response from the defendant, he commenced his action on 3 March 1967.

Apart from her other defences which now call for no consideration, the defendant raised the defence of limitation. When the action came up for trial, Counsel for both parties informed the Court that they had agreed not to call any evidence and that if limitation was held not to apply the defendant would consent to judgment. This was tantamount to a plea of limitation being taken as a preliminary point of law, by way of demurrer. Under O. 25, r. 2 of the Rules of the Supreme Court, 1957, so that the Court in deciding that point of law had to accept the facts stated in the statement of claim as being correct (see Noyes v. Crawley [1878-79] 10 Ch D 31. The learned trial Judge quite rightly dealt with the case on that basis.

The arguments put forward by Counsel for the parties in support of their respective cases were short and simple. Counsel for the defendant contended that as the relevant period of limitation was 12 years and that since time began to run from 1 October 1949, the day immediately following the expiration of the moratorium period, the plaintiff's action was time-barred. For this contention he relied on the decision of the Court of appeal in Ponnusamy & Anor. V. Nathu Ram, and he went on to say that the decision of this Court in Ng Moh V. Tan Bok Kim & Anor.was not applicable. He also pointed out that the defendant was still the registered proprietor of the land and referred to s. 341 of the National Land Code relating to adverse possession.

Counsel for the plaintiff said that he was relying on Ng Moh's case [1969] 1 MLJ 46 , and that in the present case time began to run as from 14 October 1966. The reason for his picking on that date, though no mention of