Taylor J:

This is an appeal from a decision of the District Court, dismissing an action for possession of No. 79, Syed Alwi Road.The facts shortly are these.Two shop lots, Nos 79 and 80, Syed Alwi Road were vacant.The landlord let No. 79 to the defendant at $6 a month.The defendant, with the assent of the landlord, erected at his own expense a wooden building on a concrete platform.Later the plaintiff bought the land with full knowledge of the circumstances.The building contains a shop and two or three apartments which are let separately as residential quarters.The defendant at one time used the shop himself but removed several years ago.The total rents received by him are $85 a month.The occupants in fact use the vacant site of No. 80 as a Courtyard for drying clothes and the like, though that was never let to the defendant, and is not let to them.The plaintiff desires to build two shop houses of modern type, with flats over them, and his plans were approved by the City Council in 1953.The plaintiff gave the defendant notice to quit; the defendant refused to quit and the action was brought.

Possession was claimed under four different provisions of the Control of Rent Ordinance.The first was that rent was in arrears but this was incorrect and was dropped.The second was that the defendant had sub-let portions for an aggregate return, greatly exceeding the rent paid by him to the plaintiff.Paragraph (g) of s. 15 provides that where the tenant sub-lets the premises and receives more than 11 tenths of the rent paid by him, the landlord may recover possession.This provision applies generally to the case where the landlord lets a house to a chief tenant.The question here is whether it also applies to the less usual case where the landlord lets vacant land and the tenant erects a building at his own expense.Counsel for the plaintiff questioned the proposition that land and a building on it can be owned separately, the landlord owning the land only and the tenant owning the building, so that if the tenant receives a valid notice to quit he may dismantle the building and re-erect it elsewhere.This is a common incident in the country districts of Malaya and is a well-established variation from the principle of English law that a building becomes the property of the owner of the land.The question is whether, on its true construction, the Ordinance recognises separate ownership.This turns on the definition of "premises" which, if it were split into paragraphs and if words not now material were omitted, would read:

Premises" means:

(1) Any house, office or shop;

(2) Any other building, permanent or temporary, used as a work-room and

(3) Any land on which any such building is, or has been erected with the consent of the landlord.

The third paragraph expressly contemplates the case where the landlord is not the true owner of the building.The landlord who gives the consent must be the landlord at the time when consent is given.

One cannot effectively let a building without in fact letting the site on which the building stands.From the point of view of the occupier it is all one but from the point of view of the party letting there may be two aspects.In point of law the defendant in this case, though not the landlord of the site, is the owner of the building.He has sub-let parts of the land in conjunction with original lettings, not sub-lettings, of parts of the building.It is impossible to apply para. (g) to these circumstances unless the rent actually paid by the occupants can be apportioned by the Court, so much for the site and so much for the building, and the proportion of the rent attributable to the site exceeds 11 tenths of the ground rent.Such an apportionment would rarely be practicable and Counsel for the landlord admitted that he could not attempt such an apportionment on the facts of this case.It follows that ground (g) cannot be established. I would add that in my opinion the plaintiff, having purchased with full knowledge