This is a claim for damages based in nuisance and trespass. The plaintiffs allege that their land comprised in Lot 4128 Mukim of Senai, Kulai, District of Johore Bahru became unusable as a result of flooding and water-logging which was directly caused by the defendants' interference with a natural stream which flowed through Lot 4128 aforesaid and the adjoining lot 4127 belonging to the defendant.

The salient facts now follow. From April 1972 the ownership of Lot 4128 was vested as to an undivided half share in the 1st plaintiff, Toyo Textiles Industries Sdn. Bhd. (Toyo), an undivided quarter share in the 2nd plaintiff, Chong Wui Yong and an undivided quarter share in one Wong Kit Sing who died in 1981. The land is a rectangular plot. The plaintiffs' claim is that a natural stream ran across their land in a south-west to north-west direction. It approximately bisected Lot 4128 along a diagonal axis. The plaintiffs say that it emerged from Lot 4128 about two-thirds of the way up from its eastern boundary into Lot 4127 through which it continued until it reached the main JKR culvert adjacent to the main North-South highway running from Johor Bahru through Kulai towards Air Hitam. After they became owners of Lot 4128 the plaintiffs commenced to erect a factory on the higher ground towards the North-western boundary. The natural contours of Lot 4128 are such that the stream represented the lowest point in a valley which was formed by 2 slopes rising from either side of it towards the North-western and South-eastern boundaries.

The plaintiffs' complaint in their Statement of Claim is that prior to August 1973, Lots 4128 and 4127 were in their natural state such that 4127 was lower in level. The stream aforesaid therefore naturally gravitated through the lots to the culvert. But the defendant, a housing development company, decided to raise the level of Lot 4127 by 4 to 8 feet higher than Lot 4128 along the common boundary. The result of this earthwork operation was to fill up the natural water course, block it at the boundary line and thereby cause a back-up which created large pools of stagnant water on Lot 4128. It is also pleaded that the defendants trespassed on the Lot 4128 by digging a trench in Lot 4128 alongside its boundary with Lot 4127. This exercise was calculated to divert the water along the common boundary so as to enable it to run off at the North-eastern extremity of Lot 4128 but it proved ineffective.

Although the acts complained of occurred in 1973 the plaintiffs, for reasons given hereafter, only filed their action in September, 1977. The Defence was filed in November 1977 and amended in December 1978. In it the defendants denied that there was a natural water course as claimed by the plaintiffs. In the alternative, the defendants denied that it was blocked. If it was, the defendants claimed that it did not amount to a nuisance in law. The defendants further pleaded that they had no knowledge of any water-logging on the plaintiffs' land and in the alternative, they pleaded that even if the plaintiffs' land was water-logged they had not suffered any loss or damage therefrom. As for the trench, the defendants pleaded that it was the work of a person or persons unknown and the defendants denied they were responsible for the construction thereof or for its maintenance.

With the battle-lines drawn thus, the issues of fact were clear.

On liability, the plaintiffs' evidence was as follows: They called Mr. Teoh Cheng Keong (PW.3) the State Director of the Survey Department in Johor Bahru. He produced for inspection only Table-sheet — Kulai XXVII which had been checked in 1973. It showed a stream running through both Lots 4128 and 4127. The width of this stream is shown to be approximately 12 feet wide. No swamp of any kind is shown in the table sheet and Mr. Teoh has given evidence that if there had been a swamp on Lot 4128 in 1972 it would have been demarcated on the map.

Mr. Chong Wei Foong (Chong) is the Ge