JUDGMENT

Prior to 1975, the Plaintiff, the late S. Kalimuthu and one Kalyani d/o Ragavan were the co-proprietors of the land held under EMR 449 Lot 1022, Mukim Buloh Kasap, Segamat, measuring about 4 acres 0 rod and 10 poles, each having 32/65, 17/65 and 16/65 shares respectively over the same. Sometimes in May 1975 or thereabout all 3 of them applied to the Land Authority to subdivide the said land in accordance with their respective shares. Pursuant to the said application, in September 1983 the Land Authority issued 3 separate document of titles under the following - H.S ((M) 828 PTD 1347 to the Plaintiff; U.S. (M) 829 PTD 1348 to the late S. Kalimuthu and another piece to the said Kalyani d/o Ragavan. The Plaintiff's land is contiguous to the Defendant's land who is the successor in-title of the late S. Kalimuthu's land.

2. It was the Plaintiff's allegation that prior to the said approval for subdivision, despite the agreed survey plan delineating their respective shares submitted to the Land Authorities for the said purpose and despite repeated warnings, the late S. Kalimuthu proceeded to construct a permanent dwelling house and planted trees and hedges on the portion belonging to the Plaintiff's share. The said trespass is still continuing. Hence this action before me.

3. The hearing of this action commenced on the 10th December 2007. By 11th December 2007, the Plaintiff closed her case after calling 3 witnesses. By the late afternoon, the testimony of the Defendant's first witness was concluded, whereupon learned counsel for the Defendant applied for an adjournment to subpoena his last witness, the contractor who was employed by the late S. Kalimuthu to construct the said house.

4. Meanwhile, on the day of the commencement of the hearing of this action (10th December 2007), the Defendant simultaneously applied, vide Saman Dalam Kamar-Enclosure 46, inter-alia, that leave be granted to amend the Defendant's Statement of Defence and his Counter-Claim instituted against the Plaintiff, as indicated in the draft Amended Statement of Defence and Counter Claim annexed to the said application. Among others, the proposed amendment is to include a new subparagraph (c) to paragraph 4 to the following effect:-

"(c) Di dalam alternatifnya Defendant akan menegaskan bahawa tandatangan arwah S. Kalimuthu dipelan yang dirujuk di perenggan 3 Pernyataan Tuntutan yang disediakan dan dikeluarkan melalui bil (20) dlm. PHTS (PS)25/75. Menurut Seksyen 142 Undang-undang Tanah Negara yang diperbuat oleh Yoong Khee Nam dari Syarikat Juruukur Malaysia Johor Bahru (Branch) telah ditiru atau dipalsukan (forged)".

5. The supporting affidavit, Enclosure 46A, was affirmed on 10.12.2007 by the learned counsel for the Defendant. Nevertheless he didn't say that he was instructed or was authorised by the Defendant to deposed the same. It was his deposition that the Defendant needed time to procure the forensic report to the effect that the late S. Kalimuthu's signature appearing in the survey plan bil (200 dalam PHTS (PS) 25/75 submitted to the Land Authority for the purpose of the subdivision of the said land was forged. However there is no disclosure as how and where he obtained this information from.

6. Learned counsel for the Defendant filed an affidavit in reply (Enclosure 52) affirmed on the 25.2.2008 (the second affidavit) in response to the Plaintiff's affidavit in reply (Enclosure 50). Now he deposed that he was fully authorised to make this affidavit as well as the supporting affidavit dated 10.12.2007. He deposed again in the second affidavit that since the documents involved were documents dating back to the 1960s and 1970s, the Defendant requires time to procure the same. He added that though the application was made late in the day, the Court could still consider the application in the interest of justice to the parties herein so long as any difficulties incurred thereform by the other party could be adequately compensated by way of costs.

7.