JUDGMENT OF MOKHTAR SIDIN, J.C.A

We have given our decision earlier whereby by majority, we have dismissed the application to adduce fresh evidence and we have also

dismissed the appeal with costs. My learned brother, Abdul Aziz Mohamad, J.C.A., had his reservation. I am now giving the grounds for the majority decision in dismissing the application and the appeal proper.

The respondent in the present appeal is the registered owner of the land known as Lot 1360 Mukim of Cheras, District of Hulu Langat (hereinafter referred to as "the said land") whereas the appellant is the registered owner of the land known as Lot 150 Mukim of Cheras, District of Hulu Langat. The two pieces of land were separated on its southern boundary by a strip of State land approximately 40 feet wide which is known as "the road reserve". It was not disputed that the appellant at the material time were carrying on development works on their land for the purpose of developing it into a golf course and a huge residential and commercial

complex known as "Bandar Sungei Long". In carrying on those works the appellant encroached onto the respondent's land whereby the appellant committed trespass on the respondent's land. In addition, in carrying out the development works, the appellant had committed physical damage to the respondent's land. The respondent had proved the physical damage caused to his land in the court below when a survey was conducted on 11.1.1993 whereby a. plan was prepared by one of the witnesses (SP2) which shows that as a result of the development works carried out by the appellant on

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their land a steep slope of about 100 feet high and 650 feet long and about 49 feet deep was created on the respondent's land. The slope was sited entirely on the respondent's land falling on the access reserve. It is clear from the record that the appellant did not dispute this fact. It is also in evidence that sometime in February 1996 the appellant, without the consent of the respondent, constructed a crib-wall on the access road reserve, part of which is on the respondent's land.

The respondent instituted the present action in the High Court seeking general damages and exemplary damages based on trespass and nuisance. He also sought the following prayers:

"(a) a declaration that the appellant are not entitled to cut or alter the public road access or otherwise appropriate the road reserve so as to deprive the respondent of access to his land;

(b) a declaration that the respondent is entitled to use and enjoy the road reserve as access to the respondent's land or the right of support to the said road reserve;

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(c) injunction to restrain the appellant whether by

themselves, their servants or agents howsoever from

encroaching into the respondent's land;

(d) a mandatory injunction directing the appellant to

forthwith at their own costs reinstate and rehabilitate the

ground levels of the respondent's land and the road

reserve adjoining the said land:

(i) by constructing a reinforced earthwall at the boundary between the appellant's land and the road reserve to the height up to the utmost original ground level; and

(ii) thereafter by backfilling with sand and earth up to the level of the reinforced earthwall;

(b) a mandatory injunction directing the appellant to forthwith at its own costs construct an access to the south-east boundary of the road reserve to the respondent's land at a level of 60 meters and for this purpose to construct a reinforced earthwall at both sides

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of the 66 feet road on the appellant's land to allow for the access;

(c) a mandatory injunction directing that in the execution

and completion of the abovesaid works the appellant do

comply at their own costs with the earthwork plan and

reinforced earthwall details as shown in drawing No. PB

9200-SP-l and PB 9200 CS1 and specifications prepared

by the consulting engineers, Messrs Perunding Bakti Sdn

Bhd and annexed thereto as Annexure 1; and

(d) an order that the completion of the abovesaid