JUDGMENT

Hashim Yeop Sani FJ:

The application before the learned Judge was under s. 327(1) of the National Land Code, 1965 for the removal of a private caveat (Presentation No. 165/78, Jilid 2, Folio 99) presented by the respondent (appellant now) in respect of land held under C.T. No. 4876 Lot No. 3 Section 20, Town of Kuantan.

The grounds for the removal of the caveat as set out in the application were:

(1) The respondent had no interest in the said land;

(2) The respondent did not have any right to claim title to or any caveatable interest in the land; and

(3) The said private caveat was wrongly presented by the respondent.

It can be seen that all these grounds form substantially only one ground i.e. the appellant had no interest as envisaged under s. 323(1) of the National Land Code which interest may be protected by a caveat.

A number of affidavits were filed by both parties and one witness was called on behalf of the applicant and two witnesses on behalf of the respondent. At the conclusion of the hearing the learned Judge ordered the said caveat to be removed. The appeal is against that order.

Some background facts are necessary and they may be summarised as follows. On 28 December 1977 the appellant entered into a written agreement with two other persons for the sale of the said land then registered in his name (photostat copy of title - p. 19) for a sum of RM1.35 million on terms and conditions set out in the agreement. At time of the sale of the land the Government of the State of Pahang had indicated to appellant its approval "in principle" of the appellant's application for sub-division into 17 shoplots and 19 residential lots. The sale agreement also provided that the sale was subject to the said approval being subsisting and not withdrawn or rescinded. The other provisions of the sale agreement dealt with the manner of payment of the purchase price and provisions relating to computation of the balance of purchase price contingent upon approval for shoplots or residential units as the case may be and also provisions for specified instalments to be secured by guarantee. Shortly after the sale a deed of assignment dated 11 April 1978 was executed whereby with the consent of the appellant the purchasers assigned their interests in the sale agreement to a company, Gambut Development Sdn. Bhd. (respondent now). It is to be noted however that the deed of assignment also carried a provision relating to what purports to be appellant's right to lodge a private caveat.

There is a civil suit pending (C.S. 224/81) in which the appellant alleges certain breaches of the sale agreement and asks for "rescission" of the contract and "retransfer" of the land and damages. The learned Judge in his judgment in this application dealt at length with some of the provisions of the sale agreement and the deed of assignment and came to certain conclusions. Stated briefly the conclusions of the learned Judge were as follows. It would seem clear to him that the only interest the appellant had in the land was the payment of the balance of the purchase price and that in the Judge's opinion did not constitute a caveatable interest. The learned Judge however found that there was by virtue of Clause 4(a) of the deed of assignment a contractual right of the appellant to enter a caveat and was of the opinion however that Gambut Development Sdn. Bhd. was not estopped from seeking the removal of the caveat. After going through some allegations of breaches in the agreement the learned Judge also found that Gambut Development Sdn. Bhd. had pursued all efforts to obtain the approval of the Government and the appellant too had done all he could but the ultimate result was that the State Government's approval was given for residential lots only. In the event the learned Judge's computation of the balance of the purchase price showed that there was in fact nobalance due to the appellant and therefore the appellant had no further right to deny the respondent's demand