Arifin Zakaria JCA:

Background Facts

This is an appeal by the appellant/plaintiff against the decision of the learned judge in allowing the respondent/2nd defendant's counter claim. The facts leading to the counter claim are not in contention and may briefly be stated as follows. The appellant is the registered proprietor of land known as Lot 684, Kampung Baru, Gunung Rapat, Mukim Hulu Kinta, Perak ("the appellant's land"). The appellant's land adjoins the land referred to as H.S.(M) UK 5107, No. P.T. 138041, Kampung Baharu, Gunung Rapat, Mukim Hulu Kinta, Perak ("the respondent's land"), which is presently registered in the name of the respondent. The appellant had constructed a double storey shophouse on the appellant's land. It is conceded that the doors and windows and the edge of the roof of the said shophouse on the appellant's land protruded into the respondent's land. It is also not in a dispute that at the time when the approval for the construction of the shophouse was obtained from the Majlis Bandaraya Ipoh ("MBI"), the 1st defendant in the court below, the respondent's land is yet to be alienated to the 3rd defendant in the court below ("the respondent's predec