Thomson CJ (delivering oral judgment):

I would briefly preface what I have to say regarding this appeal by expressing the gratitude and appreciation of the Court for and of the extremely helpful and thorough and, if I may say so, relevant arguments to which we have listened from Counsel. It says a great deal for the thoroughness and care of Counsels' arguments that we find ourselves in a position to dispose of the appeal here and now.

I shall come shortly to the framework of the action with which we are concerned, but before doing so it is to be observed that in it limitation was pleaded as one of several defences and the trial Judge, with the agreement of the parties, very properly decided to dispose of that issue of limitation in the first place. The proceedings accordingly went on under the provisions of O. 25. In the event the learned Judge found that the plea of limitation succeeded and he accordingly dismissed the action with costs. It is against that decision that the plaintiffs have now appealed.

As I have said, the matter was dealt with under O. 25 which contains the procedural provisions which nowadays have replaced proceedings by way of demurrer and accordingly it fell to be dealt with on the assumption that the facts were as stated in the plaint. So far as they appear to be relevant these facts are as follows.

The plaintiffs (the present appellants) are the executors of the estate of one Naina who died on the 11 February 1949 and the defendant at all material times was and still is the registered proprietor of the piece of land in the township of Taiping which formed the subject matter of the action. On or about 24 August 1944 which it is to be observed was during the Japanese occupation, the defendant sold the land in question to the deceased for a sum of $10,000, executed a Memorandum of Transfer in accordance with the provisions of the Land Code and handed this transfer together with the Grant to the deceased. For reasons which are not altogether clear, and with which in any event we are not here concerned, the transfer was not immediately presented for registration and after the end of the war it became incapable of being presented by reason of the legislation which occupied such a great portion of our time in these Courts for a number of years recently. Then the purchaser died. There was considerable delay in extracting probate of his Will and the present proceedings were not commenced until 23 November 1956. Up till that date the defendant had refused to do anything of any sort in connection with the sale of the land to the deceased although the deceased had gone into and remained in possession.

The plaintiffs in their plaint related the facts which I have just set out and concluded by asking in the first place for a declaration that the executors were entitled to the land in question and in the second place for an order in terms of the Land Code that the proper Registering authority do make such memorials in the Register and issue Document of Title No. 4886 for Lot No. 298 in the township of Taiping as may be necessary to register the testate (presumably they mean the deceased) as the proprietor thereof.

To my mind the whole appeal stands or falls according to the nature of the claim and in my opinion the claim constitutes an action to recover land.

I do not propose to repeat what I have said on previous occasions regarding the local land laws as, for example, in the case of Bachan Singh V. Mahinder Kaur & Ors. . I think, however, that it is abundantly clear that by reason of the provisions of the Land Code and particularly by reason of ss. 42 and 43 the question of whether the deceased ever had any rights in rem as distinct from rights ad rem does not arise at this stage for it is clear that the whole right, title and interest in the land are still in the defendant for the reason (and it is a very simple reason) that he is the registered proprietor. He is on the register and therefore the who