Ibrahim J:

This is an appeal against the decision of the learned president who dismissed with costs the appellant/plaintiff's claim for vacant possession of premises No. 17 Jalan Pauh, Tanah Merah, and damages for alleged unlawful occupation thereof.

The material facts were not in dispute. The land on which the said premises stood was a Malay Reservation land and at one time belonged to Koh Geok Chin who agreed to sell it to Fong Yew Chit and on the strength of that agreement Fong Yew Chit built the said premises. The approval of His Highness the Ruler in Council was however not obtained and as a result of that Koh Geok Chin allowed Fong Yew Chit to keep the said premises on the land on payment of ground rent of $60 per annum. Fong Yew Chit subsequently gave the said premises to his son Fong Eng Leong (DW2) who continued to pay the ground rents to the original and subsequent owners of the land. The land was transferred to various persons and on 2 September 1969 it was transferred from Ong Hau Tong to the appellant/plaintiff. Before that Ong Hau Tong and the appellant/plaintiff had on 2 November 1965 entered into an agreement (P2) by which Ong Hau Tong agreed to transfer the land to the appellant/plaintiff. The appellant/plaintiff admitted that she knew that when P2 was made the said premises did not belong to Ong Hau Tong and that the price of $7,000 was only for the land and did not include the said premises. She also admitted that the respondent/ defendant was paying rent for the said premises to DW2 which was at $50pm. On the execution of P2 the appellant/plaintiff had increased the ground rent to $120 per annum (or $10pm) which the respondent/ defendant apparently on behalf of DW2 paid to her till she became the registered owner of the land on 2 September 1969 when she refused to accept further ground rents. The said premises had cement floor with some of the pillars buried into the ground.

In the record of appeal it was noted (at page 4) that the issue was "Who is the owner of premises?" and the learned president in his grounds of judgment said:-

I was of the view that the plaintiff was only the landowner and not the house owner as well. The previous land owner had been receiving ground rent for the house owner which only showed, coupled with the plaintiffs admission that when she bought the land that she was only buying the land (P2), that the house was not part and parcel of the land. As purchaser of the land, she could not get an interest more than what the previous land owner had.

It was contended by Counsel for the appellant/ plaintiff that the learned president was wrong in finding that the appellant/plaintiff was only the land owner and not the house owner as well and referred to the definition of 'land' in s. 5 of the National Land Code and among other cases Chua Sai Ngoh v. Beh Ai Meng [1955] MLJ 167 in support of his contention.

Under the said s. 5 of the National Land Code land includes:

(d)all things attached to the earth or permanently fastened to any thing attached to the earth, whether on or below the surface;

The head-note in Chua Sai Ngoh's case reads as follows:

This was a claim by the plaintiff for a declaration that she was the lawful owner certain houses built on land belonging to her and for possession of the said houses. The houses were plank-walled houses built on concrete platforms and were built by the defendant before the purchase of the land by the plaintiff. The defendant had been paying rent to the plaintiff at the end of each year for his occupation of the land. In 1953 the plaintiff had a quarrel of some sort with the defendant, and subsequently she wrote a letter to the defendant purporting to give him a month's notice to quit the premises.

The defendant contended that the plaintiff was only the owner of the land but not of the houses. The plaintiff alleged that the defendant's conduct amounted to disclaimer of her title and therefore no notice to quit was required." and