Syed Agil Barakbah J:

The plaintiff is the registered proprietor of two pieces of land comprised in Grant No. 2896, Lot No. 478, and certificate of title No. 2422, Lot No. 3190, both of which are situated within the township of Seremban. The two pieces of land were bought by her husband and registered in her name on 13 July 1955, as evidenced by the documents of title. (Exhibits P2 and P3). The land comprised in Lot No. 3190 has a road frontage with Channer Road, a public road which leads to Seremban town.

The defendant is the owner of land comprised in Grant No. 4485, Lot No. 517, which he acquired in stages from the beneficiaries of the estate of one Tunku Syed Abdul Rahman. (Exh. P1). This Lot 517 is adjacent to the two lots belonging to the plaintiff of which Lot 3190 stands between it and Channer Road. The defendant developed the land comprised in Lot 517 by building houses and sometime in January 1964, constructed a metalled road across the plaintiff's land i.e. Lot 3190, as an approach road to link up with Channer Road. Since then the defendant and the occupiers of the houses in Lot 517 have been using this road as access to and from Channer Road.

The facts so far are not in dispute. The plaintiff alleges that since January 1964 the defendant has built the road on her land without her consent and has been wrongfully trespassing on the said land, and as a result she has suffered damages. She therefore claims a declaration that the defendant is not entitled to enter or cross her land or to cause or permit others to enter or cross the same, and also seeks an injunction to restrain the defendant by himself, his servants or agents from entering or crossing the said land or causing or permitting others to enter or cross the same. She also claims general damages and costs of this action.

The defendant, on the other hand, denies the allegations and avers that he has constructed a road round the perimeter of the said Lot 3190 which does not infringe the plaintiff's land but admits that he has constructed the approach road over the plaintiff's land in order to link up the road constructed by him over his own land with Channer Road. This approach road is about two chains in length and eleven feet in width. The defendant thereby maintains that he has the right of way by user of the said road for upwards of twenty years and therefore he is neither liable for damages for trespass, nor to any of the remedies sought by the plaintiff in this action.

In my view, the whole case rests on the law regarding easements, i.e. the right of way. For the purpose of clarity, the plaintiff's land, i.e. Lot 3190, is referred to as "the servient tenement" and the defendant's land, Lot 517, as "the dominant tenement". It is clear on the record that the land held by the plaintiff under Lot 478 is not involved in this dispute.

Before dealing with the main issue, it is necessary to consider whether this proceeding is governed by, the Land Code of 1926 or the National Land Code (Act 56 of 1965).

The plaintiff instituted this action on 10 November 1964, at the time when the Land Code of 1926 was in force. Subsequently, it was repealed and superseded by the National Land Code (the new Code) which came into force throughout the States of Malaya on 1 January 1966. On the other hand, the Interpretation and General Clauses Ordinance, 1948, which was still in force at the time the plaintiff instituted this action, was subsequently repealed by the Interpretation Act, No. 23 of 1967, which came into force on 18 May 1967.

Section 65 of the Act provides for the repeal of the Interpretation and General Clauses Ordinance in so far as it is a federal law but allows it to continue to apply to any written law to which it applied immediately before the commencement of the Act. This section should be construed with section two which makes the Act applicable, inter alia, to Acts of Parliament enacted after the commencement of the Act and excludes its applicat