Rigby J (delivering oral judgment):

This is an appeal from a decision of the learned President of the Sessions Court, Penang. The facts of the case are really perfectly simple and straightforward. On the 12 April 1956, the respondent entered into an agreement with the appellant and his brother to sell them a piece of land with two houses on it. Under the terms of the agreement the respondent was to demolish and remove the two houses from the land within 24 months from the date of completion of the purchase. In consideration of him doing so the appellant and his brother were to pay him the sum of $1,000 to defray the cost of removal and reerection on another site. It is clear, however, from cl 2 of that agreement that such payment was only to be made if the houses were demolished and removed within the period of 24 months. Clause 3 of the agreement then provides:

3 On failure or refusal of the Purchaser to give and deliver up peaceable possession of the said land and hereditaments and demolish and remove the said houses erected thereon on or before the time hereinbefore specified the Purchaser agrees to pay a monthly ground rent of Dollars Fifty ($50) of the said houses to the sub-purchasers.

The appellant was, in fact, described in that agreement as a sub-purchaser by reason of the fact that the land and buildings thereon had been purchased by the respondent himself from another person on the 16 April 1955, and under the terms of that earlier agreement the full purchase price was to have been paid by the respondent to the original vendor within a period of 12 months. It is apparent that in fact there was not a completion of the purchase price within that periods, so that this agreement was to all intents and purposes an assignment of the contract of purchase from the respondent to the appellant and his brother. The respondent did not, in fact, demolish the houses and he still remained on the land. In evidence he said that he wanted to demolish and remove the two houses within 24 months and he had asked the appellant and his brother on numerous occasions for the $1,000 and had been told by them that they had no money. This evidence, although it was denied by the appellant, was, in fact, admitted by the appellant's own brother, a witness called by the appellant himself. However, for whatever reason he may have stayed on the land, it seems to me immaterial on the facts of the case. The fact is that he still remained in possession after the two years had expired.

In July 1958, the appellant's solicitors wrote to the respondent drawing his attention to the agreement and requesting him to demolish and remove the houses in accordance with the terms of the agreement. That letter contained the following para and I quote it:

As a result of your said undertaking and assurance to my client under the said agreement my client has allowed you to enjoy and live there free of ground rents since April 1956, when he purchased the land on which your said houses are erected, as agreed by him under the said agreement.

The respondent replied through his solicitor to that letter tendering $100 being ground rent for the months of May and June 1958. The respondent's letter refers to the fact that the respondent had himself previously tendered rent to the appellant, but it had been refused. The appellant, through his solicitors, replied to that letter refusing tender of the $100 for two months' rent and returning the money to the respondent's solicitor stating that the appellant now required the land for his own use. The second paragraph of that letter states:

My client states that under para. 1 of the agreement referred to in your said letter, your client agreed to vacate, demolish and remove his houses Nos. 38- B and 38-C, Mukim 13, Ayer Hitam Road, Penang, within 24 months from the date of the completion of the purchase of the said land and hereditaments by my client. As a result, my client, as agreed by him , allowed your client to oc