JUDGMENT

John Lee Kien How @ Mohd Johan Lee J:

(After Full Trial)

Introduction

[1]"Possession is nine-tenths of the law," the old adage goes — but in the realm of undivided land and co-ownership, that final tenth can be fiercely contested.

[2] The Plaintiff in this case ("Mat Saad bin Ahmad") claims that his undivided shares entitle him to exclusive possession of a portion of the land and alleges that the Defendants have unlawfully interfered with his rights. The Defendants, Mohammad Sukri bin Abdulah, his personal capacity and as one of the beneficiaries of the estate of the late Dahman bin Haji Mat Akib, resist this claim, asserting that the land has long been apportioned among co-owners through mutual understanding.

[3] Against this backdrop, the Court is called to answer several key questions. First, does the Plaintiff's undivided share confer a right to exclusive possession of any specific portion of the undivided land? Second, can the Plaintiff override the long-standing communal arrangement among co-owners in asserting such a right?

Facts And The Dispute

[4] Both the Plaintiff and the Defendants are registered owners of an undivided share of land known as Lot 637, Mukim Ayer Puteh, Paya Saga, Daerah Pendang, Kedah Darul Aman ("the Subject Land"). The Plaintiff possesses 10032/50688 whereas the Defendants own 6384/50688 of the subject land. There are 14 other co-owners who are not parties to this dispute.

[5] It was undisputed that each co-owner held a specified undivided share as shown in the Subject Land's title deed and was delineated physically by the site of each co-owner's respective residential compound.

[6] On 11 March 1989, the Plaintiff first acquired a 5016/50688 share ("Plot 1") from previous co-owner, Lin binti Ahmad. About 21 years later, on 27 June 2010, he further acquired another 5016/50688 portion ("Plot 4") of the Subject Land from Muhamad Rosidi bin Ibrahim bringing it up to a total of 10032/50688. However, the Plaintiff did not take over physical possession of Rosidi's land at the time. A plan (Exhibit D2) was drawn up by DW-5 to illustrate their respective positions. Although the Plaintiff disputed the plan, there was no real contest or counter-report prepared to prove there was any alternative measurement.

[7] The plot immediately adjacent to the Plaintiff's Plot 1 is Plot 2, which is a property under the estate of the late Dahman bin Haji Mat Akib. The 1st Defendant is currently occupying the house built on Plot 2. The 1st Defendant is also one of the beneficiaries of the estate.

[8] The Plaintiff claimed that the 1st Defendant had interfered with the process of the Plaintiff's appointed land surveyor in measuring the area that the Plaintiff is currently in possession of, which purportedly does not involve the Defendants' share of the subject land, by:

(i) Restricting a land surveyor from the Pendang Land Office from marking boundaries of the Plaintiff's share of the subject land;

(ii) Erecting fences encroaching and blocking paths leading to the Plaintiff's share of the subject land;

(iii) Digging a drain encroaching into the Plaintiff's share of the subject land; and

(iv) Issuing threats to the Plaintiff alleging that the Plaintiff is only mooching off his mother's share of the subject land.

[9] It was agreed that the interference began from the year 2010.

The Plaintiff's Submission

[10] The Plaintiff submitted that his claim does not involve any one undivided share, and the measurement process does not involve the interests of the estate of the deceased's estate. Further, the Plaintiff contends that the Defendants' allegation of the subject land being an ancestral home including the Plaintiff's portion is a 'cooked-up story'.

[11] On this point, the Plaintiff submitted that the plan drawn up, Exhibit D2, was incorrectly measured and does not reflect the actual measurements and portion of the Plaintiff's and Defendants' shares.

[12] Furthermore, the Plaintiff submitted that the 2nd Defendant's capacity as a repres