VT Singham JC:

Plaintiffs' Claim For Summary Possession UnderO. 89 RHC 1980

By an originating summons dated 28 April 2000, the plaintiffs applied under O. 89 of the Rules of the High Court 1980for an order to recover the lands known as lots H.S.(D) 3194 PT No. 9528 and H.S. (D) 3195 PT No. 9529 in the Mukim Gali, District of Raub, Pahang (hereinafter referred to as "the said lots") against the defendant and occupiers of premises known as No. 1, Batu 4, Jalan Cheroh, Raub (hereinafter referred to as "the said premises") on which the said lots there is a house constructed and known as the said premises and being occupied by the defendant and other occupiers. The grounds of the plaintiffs' application is supported by an affidavit affirmed on 19 April 2000 by En. Baharum bin Lajim, the Manager for Finance and Administration of the plaintiffs. By the first affidavit in support of their application the plaintiffs inter alia, have stated as follows:

Affidavit Of The Plaintiffs Dated 19 April 2000 In Support Of The Application

(a) the plaintiffs are the registered owners of the said lots and both the said lots are housing lots which is involved in a housing development of a housing project which is known as "Taman Amalina Perdana" wherein construction works are presently being carried out in the project area.

(b) according to the plaintiffs' information and knowledge, the defendant has constructed a semi-permanent building on the plaintiffs' said lots and occupying the building together with his family whose names are not known without the plaintiffs' permission, consent or agreement.

(c) the surveyor's plan with a letter dated 26 July 1999 from the Surveyors, Jurukur, Budiman which is addressed to the Developers, Amalina Holdings Sdn. Bhd. for the said Taman Amalina Perdana proves the trespass on the plaintiffs' said two lots.

(d) in the circumstances, the occupation by the defendant and his family on the said lots is illegal and they are trespassers.

(e) as evidence to the averments in the affidavit, the plaintiffs have exhibited copies of the titles, the sale and purchase agreement entered into between the plaintiffs, the developers and the purchasers in respect of the said lots and the survey plan by the said surveyors.

(f) despite several request to the defendant to demolish the illegal building and to vacate, the defendant has refused to do so. Subsequently, the plaintiffs issued a notice dated 7 March 2000 through their solicitors to the defendant but the notice was returned as "unclaimed".

(g) the defendant has still failed/refused and neglected to vacate and deliver vacant possession of the said lots to the plaintiffs.

Claim For Vacant Possession

In the circumstances, the plaintiffs prayer in the originating summons is for the plaintiffs to be granted possession of the said lots on which is situated the illegal building, the said premises which is occupied by the defendant and other persons who are occupying without permission or agreement to which the plaintiffs are entitled to possession.

Defendant's Affidavit-In-Reply Dated 6 July 2000

On the other hand, the defendant, by an affidavit affirmed on 6 July 2000 has inter alia, denied that he did not obtain the consent or permission from any relevant authorities to occupy and live on the said lots together with his family members. In any event, for the sake of completion, it is only appropriate to set out the summary of the reply of the defendant to the plaintiffs' first affidavit which is as follows:

(a) denies that he did not obtain the permission or consent to occupy and live together with his family on the said lots from any of the relevant authorities of the said area/location.

(b) requires the plaintiffs to prove that the defendant and his family are trespassers on the said lots and states that his status is not that of a squatter or considered as a trespasser without consent.

(c) the defendant's father and his family have lived on said lots since 40 years ago.