Gopal Sri Ram JCA (delivering judgment of the court):

This appeal is directed against the order of the High Court dismissing the appellant’s (the plaintiff in the court below) claim against the respondents (the defendants in the court below) for specific relief relating to a piece of land. The history of this litigation is as follows.

At all material times the plaintiff was the holder of a piece of land held under temporary occupation licence (‘TOL’) No 1488. On 25 May 1972 he entered into an agreement with one Chung Soo Chong of Lee Hing Loong Mining Enterprise Sdn Bhd under the terms of which Chung was to surrender his land to the state authority to resettle the plaintiff and other occupants on another piece of land identified by Chung. The plaintiff was to give up his TOL in Chung’s favour and move to the resettled land. Each settler, including the plaintiff was to receive a title to a separate lot to be issued by the state. The plaintiff’s case in the court below was that pursuant to the aforesaid agreement he applied to the state authority to issue to him a title to the land that now forms the subject matter of the dispute. In his application, the plaintiff gave the second defendant’s address as his own because he had by this time moved out to Kuala Lumpur. Having heard nothing for some time, the plaintiff asked the defendants about the status of his application. This seems fairly reasonable because all correspondence from the relevant department would be received by the second defendant. In March 1993, the plaintiff discovered (as a result of a letter from revenue) that the land in question had been alienated to him. Upon making inquiries, the plaintiff discovered that the subject property (held under HS(M) Lis 7, No PT 69, Plot 12, in the Mukim Pantai, Negeri Sembilan had become registered in the joint names of the defendants pursuant to a memorandum of transfer that had purportedly been executed by the plaintiff in their favour. The consideration disclosed in the memorandum was said to be RM2,000. According to the plaintiff he had never signed that instrument of dealing and the signature of the transferor on the memorandum was therefore a forgery. The defendants raised two issues in their defence. First, that the plaintiff was a mere trustee of the subject property for the defendants. This averment was based upon an assignment allegedly executed by the plaintiff in the defendants’ favour. The plaintiff, however, denied that he had ever executed that document. The second defence taken was that the plaintiff had indeed signed the memorandum of transfer. So, on the pleaded case of the parties, these were the two issues that the trial court had to determine.

In finding for the defendants, the learned judge proceeded upon two main grounds. First, he found that the plaintiff had no locus standi to bring the action. This finding flies in the face of the defendants’ pleaded case in which they admitted that the subject property belonged to the plaintiff until he transferred it to them. Second, he accepted the defendants’ evidence that the plaintiff had indeed executed the disputed instrument of transfer.

Taking the first, we are of the view that the learned judge clearly erred in dismissing the plaintiff’s claim on this ground. It was never the defendants’ pleaded case that the plaintiff had no standing to sue. Quite the contrary. The point was therefore clearly not on the record of the court. It was the duty of the learned judge to decide the case on the pleadings before him. In Haji Mohamed Dom v Sakiman

a judge is bound to decide a case on the issues on the record and that if there are other questions they must be placed on the record …

It is quite clear that the learned judge in the present appeal failed to adhere to this rule. If this were the only disclosed error we would set aside his judgment and ordered a retrial. But there is here a reason why a retrial is not called for. And that brings us to the second reason offered by