Salleh Abas FJ (delivering the judgment of the Court):

This appeal relates to the claim by the respondents of their right of access to the roof top of a seven-storey commercial building, the ground and first floors of which are owned by them, via the common staircase connecting all the floors of the building. The learned trial Judge below upheld the respondents' claim and awarded against the appellant a mandatory injunction and a sum of RM10,000 by way of damages. Hence the present appeal.

For the purpose of our judgment, it is necessary to state the facts as follows.

Kuan Kum Ming and Kwan Yui Ming (referred to in this judgment as the "vendors") owned a piece of land, a 999 year lease - Sandakan Town LeaseNo. 809 - containing an area of 1,500 square feet. They built a seven-storey commercial building on it. On the roof top of the building, there are constructed two water tanks of equal size, each capable of holding 3,250 gallons of water. One of the tanks supplies water by means of pipes connected therewith to the ground and the first floors of the building. Access to the water tank was gained by using the common staircase which connected the ground floor with all other floors.

The vendors sold the ground and the first floors to the respondents (Stephen Leong Kon Sang and Leong Den Choi) for RM295,000, whilst the other five floors were sold through the agency of Man Woo Leong and Co., Sandakan, for RM300,000 to the appellant (Tam Kam Cheong). The respondents, paying a deposit of RM5,000 towards payment of the purchase price, entered into occupation of the ground and the first floors in November 1968 and started a restaurant business there in the same month under the name of "Fortuna Bar and Restaurant". A written Purchase Agreement between the respondents and the vendors was signed and dated on 5 August 1970. Memorandum of Transfer to the extent of 2/7 of the property in favour of the respondents was executed and dated 22 September 1970, and finally registered as Memorial No. 103337 on 29 January 1971.

It appears that the vendors since 1969 have been living in Hongkong. The appellant purchased the remaining five floors of the building from the vendor's agent, Man Woo Leong and Co. for RM300,000. Upon payment of RM50,000 deposit towards payment of the purchase price, the appellant entered into occupation of these five floors by being given keys thereto on 16 October 1969. The balance of RM250,000 was paid on two subsequent occasions: on 29 June 1970 RM200,000 was paid to the agent, and on 5 August 1970 RM50,000) was paid to Messrs Peter Lo and Co., the vendors' solicitors. On this latter date. the appellant was given by Messrs Peter Lo and Co., a copy of draft Purchase Agreement similar to the one signed by the respondents, but he refused to sign it. However, on that date the appellant signed a Memorandum of Transfer dated 22 September 1970 to the extent of 5/7 of the whole property in his favour. This Memorandum was finally registered as Memorial No. 13338 on 29 January 1971 - i.e. on the same day as the registration of the respondents' Memorandum of Transfer.

The appellant is running a hotel business known as Gaya Hotel, which is adjoining to the commercial building which he and the respondents have bought. Soon after the entering into occupation of the building, the appellant submitted to the Sandakan Town Board two plans for structural alterations of the floors which he had purchased so that they would form an extension or part of his hotel business. The first plan D1 was approved on 19 December 1969, and the second plan D2 approved on 3 August 1970. Plan D1 related to the alterations of the second and third floors, whilst plan D2 concerned the alterations of the fourth and fifth floors. These plans involved the sealing of the staircase on the second floor, its demolition on the second, third, fourth and fifth floors, and the construction of extra rooms over the areas gained by its demolition. The works of se