Mohd Azmi SCJ:

[1] This is an appeal against the decision of Edgar Joseph Jr J who upheld an order of vacant possession dated 4 November 1981 granted to the respondents by Puan No Mooi Ching, the Magistrate of George Town, Penang. The order relates to vacant possession of that portion of Holding No 18 Town Subdivision 9W, North East District, Penang, on which stood an unnumbered plank house erected by the 2nd appellant's late husband by the name of Koniah, and now owned and occupied by her together with her son, the 1st appellant. The respondent's claim is based on a notice to quit issued on the 1st appellant requiring him to vacate the respondents's land within one month from 2 August 1974, and on another notice to quit issued on 3 April 1980 requiring the 2nd appellant to quit the land forthwith for trespassing. Both the appellants refused to comply with the said notices. Hence the suit taken against them.

[2] Before the learned Magistrate, two main issues were canvassed by the appellants for the purpose of establishing that they were protected by the Rent Control Act 1966. The first issue was whether the house was built before or after 31 January 1948, and the second issue was whether the 1st appellant and his mother, the 2nd appellant were paying grounds rents to the respondents or to any of their predecessors in title. On the evidence before her, the learned Magistrate concluded that the house was subject to rent control legislation as it was built before 31 January 1948 by the deceased Koniah who was the father of the 1st appellant and the husband of the 2nd appellant. But on the second issue, she came to the conclusion that both the appellants were trespassers, there being no relationship of landlord and tenant. She found no evidence that any ground rent had been paid either to the respondents or to any of their predecessors in title. Hence she entered judgment for the respondents.

[3] On appeal to the High Court, the discussion on the first issue would appear to be an exercise in futility. The protection claimed by the appellants under the Rent Control Act by reason of the fact that they were ground tenants is clearly untenable in law. As there was no dispute on the ownership of the house, the issue was not at all relevant and ought to have been immediately rejected both by the learned Magistrate and the learned Judge. As stated by Salleh Abbas FJ (as he then was) in Mok Deng Chee v. Yap See Hoi & Ors, [1981] 2 MLJ 321; [1981] CLJ (Rep) 69 at 73 on the application of Rent Control Act 1966:

The Act inter alia protects a tenant who rents a house from his landlord, where the house was built before 31 January 1948. It has nothing to do with the case of a tenant who rents only the land but owns the house, ie, the Act does not apply where the landlord does not own the house.

[4] Regarding the other issue, the appellants continued with their same argument as in the Magistrate's Court that the appellants did pay ground rents at one time or another to the predecessors in title, in particular to N.T.S. Arumugam Pillai, to whom according to para 5 of the amended statement of defence, the 2nd appellant had been paying monthly rent since 1963.

[5] It is obvious on the pleadings and the evidence adduced at the trial that the main and only thrust of the appellants defence was that they paid ground rents to Arumugam Pillai since 1963 until the respondents purchased the property in 1974. It was on this payment of land rents that consent of Arumugam Pillai must be assumed over appellant's occupation of the property since 1963.

[6] In dismissing the appeal the learned Judge had no choice but to treat the appeal as based solely on the question of whether the appellants occupied the land as trespassers or as tenants paying ground rent to the respondent's predecessors in title or any of them. After examining the evidence relevant to this question, the learned Judge upheld the findings of fact of the learned Magistrate that no rent had eve