Lee Hun Hoe CJ Borneo:

The plaintiff Chin Fook Wah is the administrator of the estate of Chin Lan (deceased) the owner of Lot 1735 in the Mukim of Ulu Kelang in the State of Selangor. He is now the registered proprietor of the land under qualified title under H.S. (M) 343. The two defendants are owners of adjoining lots. Yap Lai Yoke is the owner of Lot 1738 and Yong Ah Noi @ Yong Sau Fong the owner of Lot 1739. In the course of their occupation both unlawfully built extensions to their buildings thereby encroaching on plaintiff's land. In the case of Yap Lai Yoke the encroachment is 550 square feet and Yong Ah Noi 590 square feet. Both denied trespass and put plaintiff to strict proof.

There is a temporary house on Lot 1735. Plaintiff's father moved into the house in 1955 and lived there until he died in 1978. Some lots were originally used for fire rehabilitation scheme. Fire victims originally moved into this area under such scheme. Plaintiff has never stayed on Lot 1735 but used to visit it every month. Hence he knew of the extensions. There was a zinc fencing separating the lots. The zinc fencing is still standing there. Since his father's death he has rented out the house. He wanted to build a concrete house on the land but was prevented from doing so because of the encroachments.

In 1979 plaintiff instructed a licensed surveyor Cheong Fook Hoe (PW2) to carry out survey. As a result of the survey he learned of the extent of the encroachments. On 30 November 1979 he wrote to the Majlis Daerah Gombak asking whether any approval was given for the building of the extensions to both houses on Lots 1738 and 1739. The reply was in the negative. So, on 30 December 1979 he wrote to both defendants in similar terms notifying them of the encroachments and asking them to remove the encroachments.

The area of encroachment calculated by PW2 was accepted by defendants in documents marked "D" and "E". At p. 75 of the Appeal Record in Federal Court Civil Appeal No. 223 of 1983 shows the extent of encroachments in these words:

1. The concrete house on Lot 1739 has encroached about 6 to 6 1/2 feet into Lot 1735. The area of the building encroaching is about 200 sq. ft.

The fencing has encroached about 11 feet and the area taken out of Lot 1735 is about 555 sq. ft.

2. The concrete building on Lot 1738 has encroached about 8 1/2 to 9 1/2 feet into Lot 1735. The area of the building encroaching is about 223 sq. ft. The toilet and bathroom which is about 55 sq. ft. has entirely encroached into Lot 1735.

The fencing has encroached about 11 feet at the southern end and 14 feet at the northern end, and the area taken out of Lot 1735 is about 596 sq. ft.

As a result of this encroachment, the width of Lot 1735 is now about 48 feet at the road frontage and about 38.5 feet at the back end.

After receiving letters from the plaintiff the defendants engaged Chong Toong Choong (DW2), a surveyor in March 1981 to carry out a survey. It turned out that prior to setting up his own practice he was the Chief Surveyor who was responsible for the plan C-1. He checked the boundaries. He found the houses in Lots 1735, 1738 and 1736 were off centre of the road reserve by about 24 feet and not following the boundaries as given in C1. The common boundaries were not in compliance with boundaries laid out in C1, and their back boundaries also did not follow the plan and the depth of their lots was also short of the dimensions given in C1. He said these were due to wrong siting of the road.

When the defendants questioned the surveyor as to what ought to be done, Mr. Pradhan objected to the question as the defence was a denial of trespass. The defendants said the purpose of the question was to enable defendants to invite the Court to invoke certain powers under the provisions of s. 417 of the National Land Code. Mr. Pradhan pointed out that that section did not empower the Court to make an order for resiting of the road as envisaged by defendants. What the defen