T. Selventhiranathan JC:

The plaintiffs filed this application by way of originating summons under O. 89 of the Rules of the High Court ("O. 89") for an order that they be given possession of all that piece of land known as holding 858, Mukim 12, South West District, Penang on the ground that they were entitled to possession thereof and that the persons in occupation thereof were doing so without their licence or consent. The summons named the defendant and other unnamed persons as being in occupation.

This application was supported by the affidavit of the first plaintiff, Toh Kheng Heng, who affirmed it on behalf of himself and the second plaintiff, Md. Saad bin Andak. The first plaintiff averred that he and the second plaintiff were the registered owners of the land and that they had bought it from the previous owners by an agreement dated 22 August 1991. He stated that it was the intention of the plaintiffs at all material times to purchase the land with vacant possession and this was a term of the agreement. However, the defendant, and other persons who were not known, had entered upon the land or continued to occupy it without their licence or consent. On 9 July 1992, the plaintiff had entered into a sale and purchase agreement with Orange Crush (M) Sdn. Bhd. to sell the land to the latter. Consequent to this transaction, the plaintiffs had visited the land and discovered that the defendant and others were in occupation of it.

On 24 November 1992, the plaintiffs through their solicitors issued a notice to quit to the defendant requiring him to give up vacant possession or to vacate the house which he was occupying within a period of two months from the date of the notice. Despite the notice to quit, the defendant had failed, refused or neglected to give up vacant possession of the land to the plaintiffs. The first plaintiff further averred that the defendant, and other persons whom he did not know, were in occupation of the land without the consent, licence or agreement of the plaintiffs and also without the consent of the authorities, and by reason thereof their occupation of the land was unlawful. The plaintiffs had no knowledge of the persons occupying the land who were not named in this originating summons apart from the defendant.

The defendant filed an affidavit in reply stating that it was not possible that the plaintiffs had bought the land from the previous owners with vacant possession because house number 460 Block J which was erected upon holding 858 Mukim 12 had been built in 1966 by the defendant's father with the consent of the landowner at that time. The defendant's father was Mohd Tawfek bin Mohd Hussain and his mother was Fatimah bt Siraj. They had resided at that address until their demise in 1972 and 1984 respectively. The local authority had also given a number to the house and assessment had been collected up to the present. He exhibited a copy of the notice of assessment for the first half of 1992 in the name of Che Fatimah bt Siraj. (However, the notice did not show whether the assessment had been paid).

The defendant also appended to his affidavit an electricity bill dated 29 May 1985 and a water supply bill dated 17 June 1985, both in the name of Fatimah bt Siraj. (However, both these bills again did not have any proof of payment either through proper receipts or machine imprints, which is the usual mode of acknowledgment. It is to be noted that both these bills were for May and June 1985, when the defendant by his own admission was no more in occupation of the land and the house erected on it).

The defendant further averred that he had stayed in the house from 1966 until the present, except for a period from 1984 until January 1988 when he had left the house. In February 1988 he had returned and reoccupied the house up to the present. He claimed that apart from him, his sister Fadzillah bt Mohd Taufek was also staying in the house. His second child named Mohamad Alif was born on 9