BTH Lee J:

This was an action brought by the respondent in respect of a piece of temuda land (i.e. customary land) situate at Sungei Bemban, Pati Sg Mador, Binatang.

The facts are fully set out in the case stated and for the purposes of the case stated under the Native Courts Ordinance (Sarawak Cap. 43) require only brief mention.

The land in question was originally occupied by Saripah anak Unting, the respondent, an Iban woman who for sometime felled the jungle. She then moved out of the land to Sibu district more than 20 years ago. She claimed the land belongs to her.

In the meantime the appellant, also an Iban, alleged that the land was sold to him by Layan, brother-in-law of the respondent, sometime ago. He also claimed that the land belonged to his parents.

Unfortunately, the parties are not represented here nor in the lower Courts, so we have not had the assistance of arguments from both sides.

At the trial by the Native Officer's Court, Binatang on 12 October 1967 where it was first heard, the Court dismissed the respondent's claim on the ground that temuda was sold to the appellant.

From this decision the respondent appealed to the District Native Court which on 5 January 1968 upheld the lower Court's decision.

Subsequently, on an appeal by the respondent the Resident's Native Court made the following finding:

According to our inspection of the land on the spot that the disputed land is a 'paya' and little portion hill land planted with young rubber. From the position of the long-house of respondent which is away from another longhouse of Rh Muling where the disputed land is about half a mile, it is clear that there is reason for appeal in this case.

On the other hand, appellant has moved to another district and therefore has lost her right of the land. Alternatively, if as recorded that her brother-in-law had sold the land to respondent or his parents, this then is contravening the lban Tusun Tunggu of Third Div. Respondent has no right to receive 'sua' or 'tasih temuda' from anybody. This is the opinion of this appellate Court which led to the dispute of ownership. In view of the above findings the appeal is allowed and the decision of the lower Court is set aside. The land in dispute is therefore declared as "tanah orang pindah, and is left there for the benefit of the people in the area, to be more definite and clear for the benefit of those who have not enough farming land in the nearby long-house, that is Rh Muling and possibly another nearby long-house.

An appeal was lodged by the appellant and the Resident's Native Court stated a case for the opinion of this Court in accordance with s. 8(3) of the Native Courts Ordinance (Sarawak Cap. 43).

The law is quite clear as to the question raised and was laid down as long ago as 1949 by the Supreme Court at Sibu and was merely declaratory of the existing law (as to which I shall deal later).

I would quote a passage from the judgment of Hedges CJ in Udin anak Lampon v. Tuai Rumah Utom [1949] SCR 3. His Lordship said:-

In so far as the appellant bases his claim upon the rights formerly enjoyed by one Juing, we are agreed that these rights were extinguished long ago when Juing moved to Binatang.

By an order dated 10 August 1899 the Rajah declared that any Dayak removing from a river or district may not claim, sell or transfer any farming ground in such river or district, nor may he prevent others farming thereon. unless he holds such land under a grant. That order was declaratory of the customary law, and although the order itself is no longer on the Statute Book the force of the customary law is in no way diminished."

The law on this subject was recently considered in somewhat similar circumstances by Silke J in Nyalong v. The superintendent of Lands & Surveys, Second Division, Simanggang [1967] 2 MLJ 249. Silke J merely reiterated what was said by Hedges CJ in Udin Anak Lampon v. Tutu Rumah Utom already quoted.

I desire to say however that having