JUDGMENT

Azmi LP:

This is an appeal against the judgment of the High Court at George Town, Penang, dismissing, the plaintiffs' claim for the following declarations:

(1)(a) a declaration that the line of the medium high tide of the sea between the ordinary spring and neap tides from time to time constitutes the westerly boundary of Lot 275(3) and 275(1).

(b) a declaration that the first plaintiff is entitled to the fee simple absolute in possession of that part of the alluvion which lies along the westerly extremity of the said two lots and above the line of the medium high tide of the sea between ordinary spring and neap tides.

(c) in the alternative a declaration that the first plaintiff as the owner in fee simple in possession of the said two lots is entitled to free and uninterrupted access to the sea over every part of such part of the alluvion from every part of the said two lots.

(d) in the further alterative a declaration that as against the first and second defendants the first plaintiff is entitled to possession of that part of the alluvion which lies along the westerly extremity of the said two lots and above the line of the medium high tide of the sea between ordinary spring and neap tides.

(e) a mandatory injunction for the removal of the said fence and the said brick building erected on and any or whatever construction or constitution on Lot 808.

(f) vacant possession of all that part of Lot 808 which adjoins the said two lots.

(g) mesne profits from about the year 1958 until delivery of possession of all the alluvion which adjoins the said two lots.

(h) damages.

First plaintiff was the owner of lot 275(3) but first plaintiff and the other three plaintiffs are owners of lot 275(1).

The first defendant was the Government of the State of Penang and the second defendant was a body corporate incorporated by statute under the Electricity Ordinance 1949 .

The said two lots are parts of a land originally alienated to a person named Forbes Scott Brown by Queen Victoria described in the grant

"as being situated in the division of Bagan Bahroo in the District of Telok Ayer Tawar in Province Wellesley bounded and measuring as follows:

East by East India Co. and Boontah Loosoo's grounds 4,935 feet.

West by sea beach 4,067 feet.

North by road 1,904 feet.

South by Fakir and Che Mohamed's land 896 feet, agreeably to the plan indorsed thereon certified under the hand of Ian Moniet, Land Surveyor, estimated to contain an area of 94 sq acres 3 sq roods, 11 square poles together with apperenances."

It is not necessary to refer to the various conveyances through which the plaintiffs finally became the owners of the said lots. It was the plaintiffs' case that since the date of the grant in 1852 a strip of dry land hereinafter referred to as the alluvion comprising an area of about 4 acres, has been formed by the action of the sea and now lies above the high water mark of ordinary tides along the westerly extremity of the said lots 275(1) and 275(3). They also alleged that the alluvion had increased gradually, slowly and imperceptibly and naturally, through the years and is still increasing in like manner.

The plaintiffs also alleged that they and their predecessors in title have for onwards 60 years planted and cultivated coconut trees on the alluvion and are and were at all material times together in possession thereof until they were wrongfully ousted from a part thereof by the defendants.

The plaintiffs contended that the line of medium high tide of the sea between the ordinary spring and neap tides from time to time constituted the westerly boundary of their said lands and that accordingly the plaintiffs were entitled to the fee simple absolute in possession of that part of the alluvion lying along the westerly extremity of lot 275(1) and that the first plaintiff was similarly entitled to that part of the alluvion lying along the westerly extremity of lot 275(3).

The first defendant in its defence admitted that a strip of dry land above the high water