This is an application by the Plaintiff by way of Summons-in-Chambers for final judgment against the Defendant for an order that the Defendant do forthwith pull down and remove the unnumbered premises constructed adjacent to premises No. 17B Sungai Nibong Kecil, Pulau Pinang which stands on a portion of the Plaintiff's land known as Lot 1951 Mukim 12 Pulau Pinang and for damages and costs.

The hearing of this application was originally fixed on November 1, 1979 and according to the file it was adjourned to a date to be fixed for argument in open court. Unfortunately, nothing had been done until September 1984 when the Plaintiff's solicitors wrote to the Registrar requesting for a hearing date. Then, on January 8, 1985, the solicitor for the Defendant wrote to the Registrar requesting for a two-week adjournment to enable him to get up the case as he alleged that he was not served with any notification of the hearing date earlier. I refuse to grant the adjournment simply because being the original solicitor/counsel in this matter it is no excuse for him not to have prepared and got up the case earlier. At any rate, I find that the issue involved is not a difficult one.

The Plaintiff's application is supported by an affidavit of En. Ahmad bin Awang, the executive secretary of the Plaintiff affirmed on September 8, 1979. The Defendant, on the other hand, affirmed an affidavit in reply on October 30, 1979, supported by another affidavit of his mother, Be bte. Mat Esa, which was affirmed on even date.

The issue here is whether or not there is a triable defence. This simply means that it is for the Defendant to show on merits, he has a good defence to the claim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable grounds of a bona fide defence (See: The Supreme Court Practice 1985 Vol 1 — "Defence showing cause" at p.137.)

The basis of the Plaintiff's claim is that the Defendant is a trespasser by wrongfully erecting the unnumbered premises on part of the Plaintiff's land. The Defendant has denied this in his statement of Defence date July 28, 1979. He averred that he constructed his premises on a portion of land which belonged to his mother, Be bte. Mat Esa. The Defendant had set out the circumstances how the mother became the owner of a portion of the said land in his affidavit affirmed on October 30, 1979. The same averment was repeated in the affidavit of the mother affirmed on even date. She stated that she gave consent to the Defendant to construct the premises on a portion of her land which she purchased from the Plaintiff.

Based on the facts deposed in these two affidavits, I am compelled to ask myself whether this is the truth. I shall start off by considering the several documents exhibited to the affidavit of En. Ahmad bin Awang affirmed on September 8 1979. First, I find as a fact that Lot 1951 Mukim 12 has an area of 15.1217 acres and at the time of the issue of the Grant on April 2, 1979, the category of land use was "building". The land has not been subdivided. Secondly, from the survey plan made by Syarikat Ayob, it was found that the Defendant's premises was constructed on part or portion of the Plaintiff's land. There was nothing to indicate on this survey plan that the said premises was built on the portion which the Defendant's mother had alleged to have been alienated to her by the Plaintiff. Thirdly, I am satisfied that the Defendant's mother is not the registered proprietor of any of the portion of land (which has remained undivided until today) belonging to the Plaintiff. However, I am equally satisfied that she is a member of the Plaintiff's co-operative society and according to the statement of account for 1978, she had paid a deposit of $546.00 for a plot of a building site on the Plaintiff's land. Lastly, based on the correspondences as exhibited, it does seem clear to me that the Defendant had