JUDGMENTBY: MOHAMED AZMI SCJ

(delivering the Judgment of the Court): This is an appeal against the judgment of Wan Hamzah J. (as he then was) wherein he granted the following orders with costs in favour of the respondent:

(i) that the Defendants should forthwith cease from encroaching into

the Plaintiffs land and resite their fencing in accordance with

the boundary as shown in the title;

(ii) that the Defendants should remove their septic tank from the

Plaintiffs land;

(iii) that the Defendants should refrain whether by themselves or their

servants or agents or otherwise from doing the following acts or

any of them that is to say erecting or re-erecting buildings on

their land in such a manner as to encroach onto the Plaintiffs

land.

The learned Judge also dismissed the appellants counterclaim for mandatory injunction pertaining to a garage built by the respondent against which there is no appeal.

From the pleadings, the respondents cause of action was based on trespass to land -- the dispute being one of encroachment of respondents land. However, from the respondents Amended Statement of Claim, it was his case that the trespass, i.e., the construction of the septic tank and fence was not carried out by the appellants but by their predecessors-in-title. As such he did not pray for damages for trespass but merely for the removal by the appellants of the encroachment from his land. It should therefore be noted at the outset that the dispute was not on the construction of the encroachment but rather on the right of the respondent as the sole registered proprietor of lot 179 to have the septic tank and fence (which formed part of the appellants premises) removed from the land by mandatory injunction. As a matter of law, it cannot be disputed that a proprietor who establishes a proprietary right is ex debito justitiae entitled to an injunction unless it can be said against him that he has raised such an equity that it is no longer open to him to assert his legal or proprietary title. Further as stated at page 30 in Kerr on Injunctions (6th edition):

"After the establishment of his legal right and of the fact of its

violation, a plaintiff is in general entitled as of course to a

perpetual injunction to prevent the recurrence of the wrong unless

there be something special in the circumstances of the case, such as

laches or where the interference with the plaintiffs right is trivial."

The onus is therefore on the appellants to establish that there is something special in the circumstances of the present case why the learned trial Judge ought not to have granted the injunction in favour of the respondent. Both here and in the court below it is not seriously in dispute that the respondent was at all material times the registered owner of a vacant piece of land held under lot 179, section 98, town of Kuala Lumpur, whilst the appellants were the co-owners of the adjacent lot No. 126 with a dwelling house thereon known as House No. 75A, Jalan Penghulu Mat, Kuala Lumpur. Prior to April 22, 1955, both lots 126 and 179 were part and parcel of a bigger piece of land comprised in lot No. 1411 (hereinafter referred to as the "parent lot") which was owned by the plaintiffs mother Alice Talalla as representative of the estate of Mr. Hewage Sarnalis Talalla (deceased). On her application, the parent lot was subdivided into 7 lots known as lot Nos. 125 - 131 as shown in the plan at page 107 of Appeal Record. Some time before 1953, i.e., well before the subdivision Alice Talalla had by a deed of sale sold an undivided portion of the parent lot to one Madam Loke Mooi who was responsible for putting up House No. 75A together with the fence and septic tank in January 1955. When the parent lot was surveyed and subdivided, the undivided portion sold to Loke Mooi was finally identified as lot 126 which was then transfer

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