This is an appeal by the defendant in Kuala Lumpur Magistrate's Civil Suit No. 839 of 1939 against the judgment given in favour of the plaintiff.

The facts are as follows:-

In November, 1937, the plaintiff, being the registered proprietor of the land contained in lot 431, section 67, in the town of Kuala Lumpur-a building lot-built thereon a house according to plan approved by the Sanitary Board under the building by-laws.

The defendant is and was in November, 1937, the registered proprietor of the land in lot 263, section 67, adjoining the plaintiff's lot 431.

The plaintiff in building his house erected the 9' side-wall thereof on the boundary between the two lots-thus half the wall was in the defendant's land.

In September, 1938, the defendant erected a house on his lot 263, incorporating in the building the side-wall of the existing plaintiff's house as the sidewall of his house.

After the defendant's house had been so erected, the plaintiff claimed from the defendant a sum of $350 being half the cost of the construction of the wall in question.

The defendant refused to pay this amount on the ground that he was under no legal obligation to do so.

The plaintiff thereupon filed his plaint in this suit.

In the plaint as filed the plaintiff based his claim on the fact that the defendant "had made use of the said party-wall to support his said house."

When the suit came on for hearing, the plaintiff applied to amend his plaint and was allowed to do so -the amendment being as follows: "At the end of the month of February, 1939, the defendant agreed to pay to the plaintiff the sum of $350 being one-half of the cost of erecting the party-wall." The defendant denied any such agreement.

The learned Magistrate in his grounds of judgment makes no finding on this issue of fact, but on the evidence on record, including the evidence of the plaintiff himself, I find that no such agreement was entered into by the defendant or by his attorney. So, on the issue raised by the amendment the plaintiff fails.

The plaintiff's claim then rests upon the user by the defendant of this wall. Halsbury (Hailsham Edition) Volume III, paragraph 278, states:-

"278 The question of contribution of adjoining owners to the expense of building a party-wall may depend on express contract or on a contract implied from common user or other circumstances or on a local custom".

The defendant maintains that, as he never gave any permission or made any agreement, express or implied, authorising the building of the wall half on his land, he is under no liability to pay anything. This, of course, would be quite true of the half-wall built on his land. The building of that without permission was a trespass. But the question is not of that half-4½'-wall, but of the wall as a whole-the entire 9' wall.

Now, when the defendant decided to build upon his land in 1938 he, as required by the Sanitary Board building by-laws, submitted for approval the plans for his proposed house. An examination of these plans shows clearly the wall built by the plaintiff as a wall of the proposed house-it is marked on the plans as "the existing wall" and as "the party-wall."

The plans were approved.

It is relevant to consider the Sanitary Board by-laws with respect to buildings.

In by-law 2 we have defined "external wall" and "party-wall." "External wall" means an outer wall of a building not being a party-wall even though adjoining a wall of another building. "Party-wall" means a wall forming part of a building and used or constructed to be used for separation of adjoining buildings belonging to different owners ?"

By-law 17 (v) provides that "where the building forms or is intended to form part of a block of buildings or is erected on any land which has been sub-divided into building lots for shophouses or terrace dwellings:-

"(b) the buildings shall be separated by walls which, notwithstanding anything hereinbefore contained shall be constructed in accordance with the requirements of