This is the hearing of an application to remove a caveat, lodged by one Chong Khim Choi (hereafter 'the defendant') who claims to be the registered proprietor of a parcel of land held under Kuching Grant Serial No.266 (hereafter 'Grant 266'). The caveat was lodged against a parcel of land held under Kuching Grant 245 measuring some 17.40 hectares, the co-proprietors of which are several in number. It is for this reason that the person who applies to remove the caveat, one Chong Miaw Lee, sues on behalf of himself and all the other registered co-proprietors of

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Kuching Grant 245 except Liew Siew Khim who has passed away. I shall hereafter refer to Chong Miaw Lee and the other co-proprietors as "the plaintiffs" and to Kuching Grant 245 as 'the plaintiffs' land'. Chong Miaw Lee who represents the plaintiffs is a cousin of Chong Khim Choi, the defendant.

The grounds upon which the defendant caveated the plaintiffs' land are set out in his Statutory Declaration, affirmed on 13th March, 2000 in support of his caveat. This is what he said:

"(1) I am the registered proprietor of all that parcel of land situated at Sungai Tapang, Kuching, containing an area of 1.9550 hectares, more or less, and comprised in Kuching Grant Serial No. 266.

(2) I verily believe that the area of Kuching Grant Serial

No. 245 overlaps my land and my search of the

Kuching Land Office indicates that Kuching Grant

Serial No. 245 overlaps Kuching Grant Serial No. 266

as indicated in the cadastral plan annexed herewith and

shaded pink.

(3) It has recently come to my knowledge that the

registered proprietor of Kuching Grant Serial No. 245

has submitted planning proposal to the Kuching Land

Office under TP/l-KDC/198/97 and that the

subdivision has now been approved. As the approved

planning proposal also included my land I verily

believe that following the Memorandum of Surrender

(2)

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and alienation my land will be wrongly alienated by the Land and Survey Department to someone else."

The facts show that some time prior to July 2000, the plaintiffs obtained permission from the Land and Survey Department to sub-divide their said land, after which they engaged a private surveyor to submit a proper plan of the sub-division for final approval, which was done. In year 2000 the Land and Survey Department requested the plaintiffs to surrender the document of title to their land so that individual documents of title could be issued to the sub-divided lots and it was at this stage that the defendant's caveat came to light when the plaintiffs were informed of it by the Land and Survey Department.

The plaintiffs have applied to remove the defendant's caveat on the following grounds:

(a) it is defective as the caveat discloses no caveatable interest;

(b) the defendant's affidavit does not disclose any serious issue to be

tried; and

(c) there has been delay on the part of the defendant in prosecuting his

alleged interest in the 1.9550 hectares included in the plaintiffs'

land.

In resisting the plaintiffs' application herein, the defendant affirmed an affidavit in which he set out the history behind the plaintiffs' land and his land, and why he claims the plaintiffs' land overlaps his land. I should mention here that the 1.9550 hectares claimed by the defendant is a "wedge" shaped piece of land.

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The history of these two lands goes back to at least 1938. As I said earlier, the nominal plaintiff here and the defendant are cousins. The nominal plaintiff is the son of Chong Fatt while the defendant is the son of Chong Thiam. Chong Fatt and Chong Thian are the first and fourth child respectively of Chong Soon Siong (hereafter 'the grandfather'). At one point in time, the grandfather owned both Grant 245 and Grant 266 which lands are situated adjacent to each other.

According to the defendant, sometime in 1939 the grandfather applied to the Land Office to amalgamate both parcels of land into a single parcel. An examination of the document of title to the plaintiffs'