JUDGMENT

Alice Loke Yee Ching J:

Introduction

[1] The Plaintiff is a co-proprietor of a piece of land together with 10 others, of varying shareholding. She sues her brother and nephew for vacant possession of that portion of the land which she claims is hers and which the defendants have been occupying without her consent.

The Plaintiff's Case

[2] The subject matter of the present dispute concerns a piece of land identified as GM 341 Lot 1223, Mukim Cheras, Daerah Hulu Langat, Negeri Selangor ("Lot 1223"). The title adduced in evidence at the trial shows 11 co-proprietors, including the plaintiff. The Plaintiff owns 1/8 portion of the said land, measuring 3414.5 square meters. The co-proprietors are all related.

[3] Although the land has not been subdivided, the co-proprietors had at some point arrived at an agreement on the physical location of their respective portions.

[4] The Plaintiff's 1/8 shareholding of Lot 1223 was transferred to the plaintiff by her late mother Zohrin binti Ludin ("Zohrin"). The Form 14A dated 8 February 2015 states that the transfer was on the basis of love and affection. The Memorandum of Transfer was presented to the land office for registration on 17 December 2016.

[5] At the time of the transfer, the plaintiff claims that on her land was a dwelling house upon which an extension had been built to accommodate a shop house which abuts the road reserve of Jalan Cheras-Kajang. The shop house was occupied by her brother, the 2nd defendant ("D2") and his family and was used to carry out business.

[6] In December 2019, she instructed her then solicitors to issue a notice to vacate to the occupant of the dwelling house as well as D2. The former complied, but not the latter.

[7] In September 2021, she again instructed for a notice to vacate to be issued to D2. Her notice was not only ignored but D2 appeared defiant when she saw a signboard with the name Street Beans Coffee & Pastries erected on the premises soon after the issuance of the notice to vacate. A further notice to vacate and demolish the shop house was issued on 21 September 2021.

[8] This time D2 responded to seek for compensation of RM200,000.00 as the shop house was built by both him and his wife as far back as 1994 when Zohrin was the owner of the said land. His late mother had given her consent for them to occupy the said premises.

[9] The Plaintiff however, claimed that Zohrin allowed D2 to occupy the shop house on condition rent was paid. However, they were not diligent in paying rental when her late mother was alive. Further, as she is now the proprietor of the said land the consent given by Zohrin, if at all, is irrelevant.

[10] In the year 2020, the plaintiff engaged PW2, a land surveyor from the firm of Messrs AJ Surveyors to prepare a layout plan for Lot 1223, which would identify the location of the Plaintiff's land. PW2 conducted a site visit together with the plaintiff who showed him the physical location of her land. Based on the information he obtained on site, he then prepared the detailed plan below:

[11] He stated that the plaintiff's land, was identified as Plot 5. He found Plot 5 to be situated in between Plots 2 and 6. In preparing the plan, attention was paid to these three plots in particular and on which he included details which was drawn on the plan above.

[12] His evidence in chief with respect to Plot 5 was as follows:

"S: Apakah yang terdapat di atas tanah plaintif di Plot 5 itu?

J: "Di atas tanah plaintif di Plot 5 itu terdapat rumah dan bahagian atapnya bersambung dengan struktur binaan sebuah kedai menghadap jalanraya Jalan Cheras. Rumah itu saya lorekkan dakwat kelabu. Kedai itu saya lorekkan dakwat biru.

S: Terdapat garisan warna merah di tengah lakaran struktur binaan kedai itu. Apakah garisan itu?

J: Itu ialah sempadan yang memisahkan tanah plaintif dengan rezab jalanraya Jalan Cheras. Struktur binaan kedai itu termasuk sebahagiannya ke dalam kawasan rezab jalanraya."

[13] The Plaintiff's evidence confirmed the encroachment of