George Seah FJ:

For the purpose of this appeal the appellant will be referred hereinafter as the plaintiff and the respondent as the defendant. The relevant facts may be stated shortly.

The plaintiff is at all material times the registered owner of four acres of land in the kampong of Sungei Burong in the Mukim of Tanjong Karang held under EMR 5071 and made up of:

(i) Lot No.10671 for 3 acres of padi land (hereinafter referred to as the First Property) and

(ii) Lot 5481 for 1 acre of coconut plantation and the premises thereon (hereinafter referred to as the Second Property).

Following the death of her husband the plaintiff became the registered owner by way of transmission of another four acres of land in the same kampong and district held under EMR 5072 and made up of:

(a) Lot No. 10665 for 3 acres of padi land (hereinafter referred to as the Third Property) and

(b) Lot 5482 for 1 acre of coconut plantation and the premises thereon (hereinafter referred to as the Fourth Property).

On 9 September 1974 the plaintiff agreed to sell all the four parcels of lands to the defendant at the price of RM90,000. This sale and purchase agreement was reduced into writing by the execution of two contracts and marked as Exhibits P1 and P2. Exh. P1 covered the sale of the First and Second Properties and the purchase price was stated to be RM75,000. And Exh. P2 was in respect of the sale of the Third and Fourth Properties and the purchase price was RM15,000. The combined total price amounted to RM90,000. Under the term of the contracts the date for completion was fixed for 31 March 1977. Up-to-date the plaintiff said that the defendant paid only the sum of RM26,000 and when the defendant failed to pay the balance of the full purchase price on due date or within a reasonable time thereafter the plaintiff purported to rescind the contracts on 9 November 1977.

At the time of the signing of the contracts the plaintiff alleged that she orally agreed to allow the defendant to enter into occupation and to cultivate the First Property from 10 September 1974 onwards and until the actual completion of the contracts the defendant was to pay to the plaintiff a sum of RM1,000 at the end of each padi harvest every 6 months. It was further alleged that the defendant wrongfully entered and took possession of the Second, Third and Fourth Properties in November 1977 or thereabout after the defendant had been informed by the plaintiff that the said contracts had been repudiated.

Following these events the plaintiff on 11 May 1978 took out a writ in the High Court at Kuala Lumpur against the defendant seeking, inter alia, a declaration that the said contracts had been effectively rescinded, forfeiture of the said deposits, damages for trespass, mesne profits and other ancillary relief.

By his defence the defendant raised a number of issues of mixed law and fact and they were conveniently summarised by the learned Judicial Commissioner under five heads, namely:

(1) The actual selling price. Was it RM90,000 as claimed by the plaintiff or RM75,000 as alleged by the defendant.

(2) The actual date for completion of sale. Was it 31 March 1977 as contended by the plaintiff or 31 March 1978 as claimed by the defendant.

(3) Whether Lot No. 10671 (First Property) was leased to the defendant as alleged by the plaintiff while the defendant contended that he was in lawful occupation by virtue of being a beneficial owner under the contract Exh. P1.

(4) The amount paid by the defendant: Was it RM26,000 as alleged by the plaintiff or RM59,000 as claimed by the defendant.

(5) Whether time was made the essence of the contracts.

The defendant also counterclaimed for specific performance of the said contracts on payment of the sum of RM11,000 (later amended to RM16,000) or alternatively, damages for breach of contracts and in the further alternative rescission of the said contracts and repayment to the defendant the sum of RM64,000 (later reduced to RM59,000) together wit