K.C. Vohrah J:

When Wisma Hamzah-Kwong Hing (Wisma HKH), 18 storeys high, was completed at one corner of Lebuh &ang it dwarfed its immediate neighbour the 8-storey Malaysia Building Society Berhad Building (MBSB building) at Leboh &ang.

The plaintiff, owner of Wisma HKH, claims encroachment of 58 square feet by MBSB building of the land on which Wisma HKH stands at ground level; the plaintiff claims that the owner of MBSB building has wrongfully taken possession of the said land and the space above it, depriving the plaintiff of the use of 1040 square feet of built up area up to the 18th floor and that the defendant has thereby trespassed and is still trespassing thereon.

The plaintiff consequently claims for loss and damages arising from the trespass. Background

A historical sketch needs to be given for the legal issues to be seen in their context.

In 1956 a company, Malaysia Borneo Building Society Ltd (MBBSL), incorporated in Singapore, bought Lot 141 (then known by a different number) and at the time of the purchase there was in existence a wall part of which was on MBBSL's lot and part on the third party's lot (Lot 135, then known by a different number).

On 25 February 1957 (the 1957 agreement) MBBSL and the third party entered into a written agreement where, inter alia , the third party granted to MBBSL, in consideration of the sum of RM3,000, an irrevocable contractual license to use the said wall as a means of support and to raise and carry up the said wall to a height greater than its height.

In 1971 the Singapore company MBBSL sold, through an agreement, to a Malaysian company, the defendant, the whole of its undertaking's operations and all its property and assets to the defendant.

In a supplemental agreement, by a deed of assignment, MBBSL purported to assign, inter alia , the full benefit of all guarantees, charges, securities, powers, rights and remedies expressly or impliedly conferred on MBBSL.

In 1973 by an agreement (the 1973 agreement) the plaintiff purchased from the third party lands which comprised, inter alia , Lot 135.

Among the terms in the agreement was that the plaintiff had purchased the said land subject to all conditions of title express or implied and all unregistered easements affecting the land.

The plaintiff was the owner of 15 other lots in the vicinity.

After the purchase of Lot 135 the plaintiff decided to demolish the 4 storey building on Lot 135 which was standing next to the MBSB building and the buildings in the other lots to make way for Wisma HKH.

Clearly there can be no dispute that the wall of the MBSB building in Lot 141 running east-west along the boundary of Lot 141 (of the defendant) and Lot 135 (of the plaintiff) has encroached over the common boundary into Lot 135 and that was recognised as far back as 1953.

The complaint is that because of the encroachment, the plaintiff could not build Wisma HKH higher than 18 storeys and that it affected adversely the area of lettable space that could have been realised had there been no encroachment.

The defendant while not disputing the encroachment at ground level and the encroachment up to the 8th storey, the height of its own building, contends that there is no encroachment beyond the 8th storey over the boundary as the plaintiff was free to build up to the boundary which was free space from the ninth storey onwards. Plaintiff's claim

The plaintiff's action against the defendant is in trespass.

The defendant denies it is liable and relies on the following: (1) that it did not build the wall; (2) that by the terms of the 1973 agreement the plaintiff purchases Lot 135 subject to all conditions of title express or implied and all unregistered easements affecting the land; (3) that by the 1957 agreement, for a consideration, an irrevocable contractual licence was granted to the defendant by the third party to use the wall as a means of support and to raise and carry up the wall to a height greater than its then height; (4) that the plaintiff i