Plaintiffs must demonstrate continuous occupation to establish native customary rights, failure to do so leads to dismissal of claims concerning land.

[8] In order to prove their claim, the plaintiffs have called three witnesses. They are PW1 [En Berawi Mohamad] who is the Ketua Kampung, PW2 [Puan Panny Salleh] who is the daughter of the late En Salleh and PW3 [Aiashah Ismail] who is the 1st plaintiff and the granddaughter of the late En Salleh.

[9] Out of the three witnesses called by the plaintiffs, only PW2 was able to shed some light on the creation of the NCR by the late En Salleh, as she had lived on the said land until 1952, before she and the rest of her family moved out from the said land to reside in another village, which was about 30 minutes walk from the said land. The 2nd plaintiff, Hanafi [late Hanafi] in this case had passed away before the commencement of the trial. The late Hanafi was the 2nd child of the late En Salleh and the younger brother of PW2. He was raised and lived on the said land as well until 1952. Based on the evidence, after the demise of En Salleh in 1952 the whole family left the said land to reside at Kampong Simpang Tiga.

[10] As regards the creation of NCR over the said land, PW2 gave evidence that her late father had cultivated and planted fruit trees and paddy on the said land since 1926. She also testified that the said land was located at Sungai Tabuan, Chawan Road. PW2 testified that she is the eldest of four siblings.

[11] In her evidence, PW2 testified that even though they moved out from the said land in 1952, the family still visited the land regularly to cultivate and look after the land. She stated that her brother, the late Hanafi would visit the land and continued cultivating the land until the 1980's. She further testified that in the 1980's, the late Hanafi had also stopped cultivating the land as by then rapid development had taken place around the area of the said land. She however maintained that the late Hanafi had continued to regularly unkept the land there.

[12] In her testimony, she had identified an identity card [marked as P1] as the identity card of her late father, which was issued during the British Colonial days.

[13] In this case, it is also to be noted that at the time PW2 appeared in this case as a witness, she was already around 78 years old having been born in 1938. It is undisputed that due to her old age, PW2 had difficulty remembering some of the matters that were referred to her in the examination-in-chief and also during the cross-examination. The notes of evidence would reflect this. Based on the cross-examination of PW2, two important evidence emerged. One, PW2 testified that said land where the plaintiffs were claiming their NCR was less than two acres. That her late father cultivated the land since 1926. It is also to be noted that in the re-examination PW 2 was not re-examined on the point that the said NCR was less than two acres.

[14] In this case, PW3 is the 1st plaintiff in this action. The late En Salleh was her grandfather Based on the evidence she was born in 1960, some eight years after the late En Salleh had passed away. Her evidence in respect of the said land, therefore revolves around what had transpired from that date onwards until the matter is brought to court. She did not have personal knowledge on how the NCR over the said land came about.

[15] In her evidence, she also stated that she was informed by her late uncle, the late Hanafi and her mother PW2 on how her grandfather had cleared and cultivated the land. She testified that her late uncle, Hanafi had informed her that the said land had a lot number ie Lot 4811, Section 64 Kuching Town District. In her evidence, she stated that she found out in 2015 about the gazette in respect of the said land when she received a letter from the Land and Survey Department Kuching [LSD]. As regards the map [at p 12 of PBOD], she