Haji Lamin Bin Haji Mohd Yunus FCJ:

This is an appeal from the order of the learned Judge below made on 22 January 1992 granting an interlocutory mandatory injunction as prayed for by the respondent/plaintiff in prayers (c) and (d) in his summons-in-chambers dated 22 September 1990. The rest of the prayers are to be determined at the trial of the action itself. The prayers (c) and (d) as in the order read:

It Is Ordered and directed that the defendant, Karuppannan a/l Chellapan by himself his agents or servants do forthwith:

(c) Seal the side exit and side windows and remove, pull down or demolish the protrusions sewerage piping system manholes and septic tanks and all other illegal and/or unlawful encroachments encroaching upon or overhanging any part of H.S. (D) 197 No. P.T. Lot 25 Section 3 in the Township of Brinchang, Cameron Highlands in the State of Pahang.

(d) Alternatively, in the event that the defendant does not comply with the order of Court within thirty (30) days from the date of this order of Court herein, the plaintiff or his agents or servants be entitled to do so at the costs of the defendant.

The respondent/plaintiff is the registered owner of the land held under H.S. (D) 197 P.T. No. Lot 25 Section 3 in the Township of Brinchang, Cameron Highlands in the State of Pahang. The adjacent lot i.e. Lot 26 belongs to the appellant/defendant. In Lot 26 there was originally a 4-storey shophouse erected and subsequently, as alleged in the respondent/plaintiff's statement of claim, the same building was converted into a hotel. The appellant/defendant's predecessor-in-title, Madam Chong Lai Chun, by her letter to the Pengerusi Lembaga Bandaran Cameron Highlands dated 31 October 1978 applied that she be allowed to build the side-windows with protrusions to them (protruding into Lot 25) purely for aesthetic value (untuk tujuan mencantikan) and at the same time in her application she undertook to remove them so that they would not obstruct the construction of any building in the neighbouring lot and without making any claim for compensation. At the time of application, Lot 25 was still a vacant lot. Her application was approved and in the approval letter it was repeated that those protrusions encroaching into the neighbouring lot must be removed the moment the registered owner intends to have a building on it. Now that the vacant lot (Lot 25) has a registered owner currently in the person of the respondent/plaintiff and because he intends to build a hotel on it, the plan of which has been approved, he has therefore asked the appellant/ defendant to remove those protrusions. But the appellant/defendant has failed to do so hence the filing of the abovesaid summons-in-chambers and a writ. The respondent/plaintiff is also alleging trespass against the appellant/defendant for having constructed a side-exit to the said building, sewerage piping system, manholes and septic tank.

Cik Pushpam Subramaniam, Counsel for the appellant/defendant, in dealing with grounds 8, 9, 10 and 15 of her memorandum of appeal submitted that her client purchased a 4-storey hotel building together with land i.e. Lot 26 on which the hotel stands and for the purpose entered into a sale and purchase agreement on 20 January 1984 and the sale was complete upon making final payment of the purchase price within 3 months and that would have been 19 April 1984. It is true that that date coincides with the date of the issue of the certificate of fitness for occupation of the said 4-storey building. At the time of purchase the adjacent Lot 25 was still vacant land. Learned Counsel submitted that her client was an innocent purchaser without notice of any of the conditions or undertakings attached to the construction of the building on Lot 26. She said an official search was conducted and there was no disclosure of conditions. The certificate of fitness too was issued without any condition. Even the sale and purchase agreement, she said, did not dis