Peh Swee Chin FCJ:

At times, one cannot resist a pun, thus, this case is not "A Tale Of Two Cities" but a tale of two documents of title for an identical piece of land, being State land prior to the issue of the earlier of the two documents of title, and being also lot No. 1898, Mukim Ijok, Daerah Kuala Selangor, due no doubt to some bureaucratic bungling. Lot No. 1898 is hereafter referred to as the said lot.

The respondent herein, (hereafter called the 1st titleholder), was issued with a document of title of the said lot registered in September 1968, (Exh. AB-1) while the appellant herein (hereafter called the 2nd titleholder), was issued with another document of title for the said lot also, registered in December 1972. The two different dates of registration for the two documents of title are significant, for legally, any alienation of State land shall take effect only upon the registration of a document of title thereto. The 1st title holder's document of title was registered earlier.

The 1st titleholder caused to be issued a writ against the 2nd titleholder, claiming to be the registered owner of the said lot, alleging that the 2nd titleholder had been in unlawful occupation of the said lot. The 1st titleholder claimed vacant possession of the said lot and a sum of RM60,000 being loss of income for 10 years at RM500 p.m. The pecuniary claim was unexplained in the statement of claim, neither was it particularised.

The statement of defence of the 2nd titleholder said that he was the lawful owner by virtue of the document of title for the said lot having been issued to him and, therefore was not obliged to comply with the request to vacate the said land.

It is crystal clear from the evidence that the case below was conducted by both parties for the purpose of resolving a dispute to the ownership to the said lot without any serious question of facts. Learned Counsel for the 1st titleholder submitted that the first issue was whether the 1st titleholder had better title to the said lot, (p. 49 of the appeal record) and his opposing Counsel likewise submitted so, (p. 76 of the appeal record). Faced with such evidence and submissions, the Court below correctly directed itself that the first issue to be decided was the question as to who had a better title to the said lot.

From the nature of the whole case, it savours of nothing but a claim by each party to the entitlement to the said lot to the exclusion of the other, and not just a claim for possession. It is to be borne in mind that the dispute between the parties to the said lot has been simmering for a long time for the learned trial Judge referred also to the evidence of the 2nd titleholder having started work on the said lot some time near 1965 and having been disturbed some three months later by people sent by the 1st titleholder.

The learned trial Judge held allowing claim of the 1st titleholder, that the 1st title holder's document of title, having been registered earlier than that of the 2nd titleholder, prevailed over that of the 2nd titleholder. Judgment was so given by the learned Judge despite an earlier alleged compromise by both parties of their dispute in the form of an agreement in writing, which the learned trial Judge found to be invalid. More about this later.

The parties have so clearly wanted a just determination of their long-standing dispute yet the nature of pleadings would appear to suggest a claim for possession of land, and by clear implication, on the basis of trespass, and a resistance to such claim on the basis of lawful occupation. If parties had wanted the Court to take them off from the boil of their dispute as to ownership of the said lot, the pleadings have failed to make that clear, by failing to claim, for example, a suitably worded declaration that so-and-so is the sole rightful owner, etc.

It was with some trepidation when we began to hear the present appeal. At the outset of the hearing, we enquired of both learned Counse