Peh Swee Chin J:

The plaintiffs, the registered owners of land held under Grant No. 17875 for Lot No. 781, in the Mukim of Bidor, (hereafter called the lot 781) filed an action-claiming an order or injunction for the defendant to remove part of the defendant's house encroaching on lot 781 and for damages for trespass etc.; the defendant being the holder of a temporary occupation licence issued by the relevant Land Office covering adjoining lots 777 and 779 in the same Mukim of Bidor; as well as being the owner of a building substantially of wood and partly of concrete erected on lots 777 and 779, i.e. the adjoining lots.

By summons in chambers (encl. 7), the plaintiffs asked that the defendant to remove the encroaching portion of her house, and be restrained from trespassing and further asked for damages and costs.

At the end of hearing of submission from both Counsels, the Court granted an order in terms stated above except that the time for removing the encroachment be 4 months, failing which the plaintiffs be at liberty thereafter to remove the same at the cost and expense of the defendant from whom the plaintiffs be entitled to recover such cost and expense, and further that the damages, if any, be assessed by the learned Registrar of this Court, and be paid to the plaintiffs.

I now give my reasons in writing.

Despite the denial of the defendant in regard to the said encroachment, a survey report filed by the defendant himself showed the encroachment and such denial was therefore devoid of merit.

The first issue raised by the defendant was estoppel and acquiescence. This expression, "estoppel and acquiescence" is apt to give rise to some confusion unless one bears in mind that the acquiescence is an element in the estoppel which is an equitable one. Learned Counsel for the defendant, in this connection submitted that the house was built in 1968 and that the plaintiffs had become the registered owners only in July 1980. Scrutiny of the defendant's affidavit in this connection also showed that the previous owner of the plaintiff's land had never raised any issue of the encroachment.

Such was the scanty material on which the defence of equitable estoppel depended. The Court perused the document of title of lot 781 and the previous registered owner who might possibly have been guilty of words or conduct giving rise to such equitable estoppel was one Soundaram d/o Karupan Chettiar who was such owner from 20 December 1956 to July 1980 when the plaintiffs became the registered owner. It was never even alleged that the said Soundaram, had behaved in any way or spoken in any way that such equitable estoppel as was relied on by the defendant had arisen against her, and therefore the plaintiffs, the present owners. It did not appear to be disputed that the plaintiffs had not acted in any way to be so estopped from asserting their rights as owners. It would be wrong and also imposing an impossible burden on this Court to imagine or suggest how the said Soundaram (whose name was never even mentioned by the defendant) had conducted herself in certain ways with regard to this equitable estoppel. The defence based on it therefore failed.

Next, it was submitted on behalf of the defendant that the plaintiffs should have made a search in the Land Office (or rather the Registry of Titles, Perak) at the time of purchase of lot 781 to find out if lot 781 was free from an encumbrance. The short answer would be too obvious; the Registrar of Titles would not register an encumbrance such as encroachment of one's building on another's land.

Next, it was submitted that plaintiff's action was barred by limitation of time, i.e. s. 9(1) of the Limitation Act 1953. Section 9(1) provides:

No action shall be brought by any person to recover land after the expiration of twelve years from the date on which the right of action accrued to him, or it first occurred to some person through whom he claims, to that person:

[2] Nothing in this section... s