Rigby J (delivering oral judgment):

This is an appeal from a decision of the learned President of the Sessions Court, whereby he gave judgment for the plaintiff that as owner of the piece of land known as Lot 180 (1) TS 3, NED, Penang, he was entitled as against the present appellant to an order for possession of that piece of land. The learned President held that on the pleadings as they stood before him he was bound by the decision of this Court in the case of Evelyn Saw Hee Li V. Gan Tit Sun. In that case I held that land, qua land, did not come within the definition of premises and could not, therefore, come within the protection of the Control of Rent Ordinance. Mr. Jag-Jit Singh, for the appellant, would seek to argue that that decision does not apply where the land, when originally let, was vacant land and where, thereafter, a building of a permanent character has been built thereon with the knowledge and consent, whether express or implied, of the landlord. Mr. Jag-Jit Singh would seek to contend that in such a case the building, having become affixed to the realty, becomes "premises comprised in a tenancy" and, therefore, comes within the Control of Rent Ordinance, 1956.

Speaking for myself, I should have been glad to have heard that argument and, indeed, glad to have been in a position, if necessary, to allow a further appeal from this Court on this point which is, in my view, a matter of very considerable practical interest and importance. But unfortunately, it seems to me that on the pleadings that argument is no longer available to the appellant and that he must be bound by the pleadings as they stand.

By para. 12 of the Statement of Claim it was averred that the land, when originally let, was vacant land and there has since been erected thereon a building of a temporary character known as No. 83-C, York Road, Penang, which is at present occupied by the appellant. The appellant, by his Statement of Defence, has not attempted to deny or traverse the correctness of those averments. All that he has said is that he is the occupier of the house known as No. 83-C, York Road. In the absence of any denial it must, I think, be assumed, as a matter of pleading, that the appellant admitted that the land was vacant when originally let and that he admitted that the building subsequently erected thereon was a building of a temporary character. Mr. Jag-Jit Singh, as I understand it, concedes that if, in fact, the building was of a temporary character then he would have no argument that it came within the provisions of the Control of Rent Ordinance. It seems to me perfectly clear on the pleadings that the sole issue before the learned President was a claim for possession of land, qua land.

The appellant, by his Statement of Defence, refers therein to his attempts to pay the ground rent.

In my view, on the pleadings as they stood before the learned President he was correct in holding that he was bound by the decision of this Court, and on the pleadings as they stood he was correct in giving judgment for the plaintiff for possession of that piece of land which he claimed. The appellant cannot now raise issues of fact which were never pleaded before the trial Court. The appeal must accordingly be dismissed with costs.

Appeal dismissed.