Abdul Hamid Mohamad JCA:

By a sale and purchase agreement dated 9 July 1991 between the respondent (plaintiff in the High Court) and the trustees of the estate of Syed Hassan bin Ahmad Alattas, the respondent purchased the whole of lot 1471 held under grant No. 26977 for the sum of RM24,000,000. The purchase was on an "AS IS" basis, without vacant possession and subject to all existing occupiers: squatters, tenants and/or claimants. The sale and purchase agreement was subsequently approved by Johor Bahru High Court by an order dated 29 February 1992 with a term under cl. 1(d)(vii) as follows:

tanah tersebut mesti dijual secara "as is" tanpa milikan kosong (vacant possession) termasuk segala apa jenis encumbrances terhadapnya termasuk kaveat, setinggan, penyewa serta apa-apa tuntutan terhadapnya.

The respondent obtained the registered-ownership of the said land on 21 January 1994. It appears that soon after that the respondent commenced proceedings for vacant possession against the existing occupiers, the suit that gives rise to this appeal was filed on 1 August 1996. In this suit the respondent claims possession of about 10,000 sq. ft. of land occupied by the appellant.

In his defence the appellant claimed that his father, Rohani bin Mizan, had entered into a sale and purchase agreement dated 24 March 1933 with the original trustees of the estate of Syed Hassan Al- Attas, whereby the appellant's father bought a portion of the said land measuring about 10,000 square feet which was demarcated and identified as lots 19 & 20 in section "L" for a price of RM500. The full purchase price had been paid by the appellant's father. It was a term of the agreement that the said original trustees shall deposit the Malay Grant No. 1572 in the land office for subdivision as soon as 1/3 of the said land is sold. Clause 4 of the 1933 agreement states that once individual grants for lots 19 and 20 have been issued and full purchase price paid the trustees shall execute memorandum of transfer in favour of the appellant's father.

Pursuant to a civil suit in the Johor Bahru High Court in Civil Suit No.20 of 1937 filed by Estate of Trust Agencies (1927) Ltd. as the subsequent trustees of the estate against the beneficiaries of the said estate, the appellant's father's claim to the said portion was recognised by the parties to the suit and noted as an "admitted claim". The Assistant Registrar's Further Interim Certificate issued on 24 November 1957 contained the terms of the acknowledgment or admission as follows:

(a) the agreement in writing dated March 24, 1933 shall be accepted as proof under clause 8(b)(iv) of the Deed of Family Arrangement;

(b) no action was to be taken against those persons who had purchased parts of the deceased's property from the four trustees and executors of the deceased's estate under clause 9(d) of the Deed of family Arrangement; and

(c) all the properties sold by the four trustees and executors of the deceased's estate were to be transferred to the respective purchasers or their successors-in-title under the second schedule of paragraph 3 (L) of the Deed of family Arrangement.

On 10 September 1959 the said Deed of Family Arrangement was approved by the court.

The respondent filed an application for summary judgment under O. 14 of the Rules of the High Court 1980 (RHC 1980). The senior assistant registrar allowed the application. On appeal to the judge-in-chambers, the learned judge agreed with the senior assistant registrar. The appellant appealed to this court. We allowed the appeal the effect of which is that the suit will go for full trial.

In a lengthy judgment that makes it quite difficult for us to look for his reasons, the learned judge held that the respondent had succeeded in establishing their title to the whole of lot 4271 and that the burden was on the appellant "to confess and avoid by setting up a title or a right to possession consistent with the facts of ownership vested in the respondent." The