JUDGMENT

1. On 29th May, 1998 the plaintiff, the caveator, lodged a caveat no. L1255/1988 on Lot 2365 Block 24 Muara Tuang Land District (the said land), at Samarahan Land Registry. The Registrar of Land & Survey Samarahan had served on the plaintiff a notice under Section 178 of the Land Code (Cap 81) that the caveat would lapse on the expiration of 3 months of the notice. This is the plaintiff's application to extend the caveat until the trial of the plaintiff's actions against the defendants and Rich Baron Sdn Bhd, the developer of the said land.

2. The application is supported by the affidavits of Tan Kit Theng @ Tan Kheng Meng affirmed on 26th November, 1998 and 11th January 1999. The application is opposed by the 1st defendant's affidavit of Lee Heng Cheong affirmed on 28th December, 1998, and the 2nd [3] and 3rd defendants' affidavit of Seow Chaw Jiew affirmed on 18th December, 1998 and 26th January, 1999.

3. The plaintiff and his brother (deceased) were co-proprietors (in undivided shares) of the said land, and they had entered into a development agreement with Rich Baron Sdn Bhd (the developer). Under the agreement, it was agreed that after the partition and subdivision of the said land, one half share of the said land, approximately 2.149 hectares or 5.31 acres, would be transferred to the plaintiff. Rich Baron Sdn Bhd transferred an area of 1.9483 hectares or 4.814 acres, which is less than 1/2 share of the said land as agreed. The plaintiff alleged that there is a shortage of 0.20 hectare or 0.496 acres which means that the developer had breached the development agreement. Thus, the plaintiff brought an action against the developer for breach of the agreement.

4. The defendants in this action submitted that under Section 173 of the Sarawak Land Code (Cap 81), a registered proprietor cannot caveat his own land and cited the case of Sharif Ah Mastura Bte Tuanku Ibrahim v Wan Aziz Ibrahim (1993) 3 MLJ 231 on this point. Further the caveat was defective as it did not conform to the provisions of Section 174 of the Land Code in that the plaintiff had failed to state with certainty the nature of the estate and beneficial interest in the said land. The case in support cited was Kuland Development Sdn Bhd v Tho Shaw Ping, (ORIGINATING SUMMONS No. 24-30-97-III/II (unreported)).

5. To maintain a caveat, the caveator must show that he has a caveatable interest in the land. A registered proprietor can caveat his own land if he can show circumstances that affirmatively give rise to a distinct interest in the land other than the fact that he is a registered proprietor. In other words, the proprietor must show a caveatable interest other than by virtue of his beneficial interest as a proprietor. It is upon him to discharge the onus of proving of the circumstances that he has a cavealable interest in the land. See Barry v Heider & Anor[4] (1914) 19 C.L.R. 197; Great West Permanent Loan Company v Friesen & Ors (1925) AC 208; Re an Application by Haupiri Courts Limited (No. 2) (1969) N.Z.L.R. 353; and Sharifah Mastura Bte Tuanku Ibrahim v Wan Aziz Ibrahim (supra).

6. Learned counsel for the 2nd and 3rd defendants, Mr. Alvin Chong submitted that under the development agreement the plaintiff has agreed that his 1/2 share of the said land (i.e. Lot 2403) shall be for agricultural purposes. Now the plaintiff alleged that his Lot 2403 was smaller than 1/2 share as agreed, and that sublots 2363, 2365 and 2400 which in fact, had been changed into residential purpose had encroached on to his Lot 2403. As the agreed 1/2 share (approximately) of the plaintiff was 1.9483 heclares, it had been transferred and accepted by the plaintiff without a murmur. Under clause 19 of the development agreement, it is clearly provided that the mutual rights of the parties shall remain unaffected by the size of the plaintiff's 1/2 share of the said land.

7. Clause 4 of the development agreement and paragraph 7 of the Power of Attorney allowed the developer to