JUDGMENT

Abdull Hamid Embong FCJ:

(1) Two questions of law were posed for our determination, namely:

(a) Whether a boundary dispute over a portion of the land between two neighbouring lots which involves the physical aspect of the land ie, the actual size and not the ownership, rights, title or interest registrable in the document of title, can give rise to a caveatable interest.

(b) Whether a caveator who is claiming a title and/or interest in respect of a part of a land:

(i) who has described the nature of his claim;

(ii) who has explained that the caveat applied for was to protect only that part of the land.

is further required by s. 322(1) of the National Land Code 1965 to expressly state in Form 19B that the caveat was to bind only that part of the land.

(2) Background Facts

2.1 The defendant (the appellant in the present appeal) was the registered proprietor of several pieces of land which was derived from the subdivision of a larger lot known as Lot No. 16245, Mukim Petaling, Daerah Kuala Lumpur.

2.2 The appellants land adjoined Lot PT 5105 whose proprietor was Zuhrah Bina Sdn Bhd ("Zuhrah Bina"), a construction firm. Zuhrah Bina had entered into a joint venture agreement with the plaintiff (the respondent herein), a housing developer, to develop Lot PT 5105 into a housing estate.

2.3 The appellant alleged that the respondent had obtained a development order from the relevant authority based on the title of Lot PT 5105, a provisional title which had not been properly surveyed to define its exact boundary. The boundary of Lot PT 5105 as shown in the plan annexed to the title had overlapped with a portion of the appellants land.

2.4 The respondent however began development on Lot PT 5105 relying on the demarcation of boundary in the provisional title to demarcate its area of development. It had laid sewage pipes, constructed manholes and driven concrete piles on the portion claimed by the appellant.

2.5 To protect its interest pending the resolution of the dispute by the court, the appellant lodged a caveat on Lot PT 5105 ie, a caveat against the whole of the respondents land.

(3) Findings In The High Court

3.1 At the High Court, the respondent applied under s. 327(1) of the National Land Code (NLC) to remove the caveat as a person aggrieved by the existence of the caveat by reason of its interest in the land under the joint venture agreement it had entered into with Zuhrah Bina.

3.2 The main issues for the determination of the High Court were pertaining to the locus of the respondent to make the application to remove the caveat entered by the appellant on the land and whether the question of the overlap of the boundary between the appellants land and the land on which the respondent carried out the construction work gave the appellant a caveatable interest to lodge a caveat on the said land.

The High Court allowed the respondents application to remove the caveat without adverting to the issue of the overlapping boundary.

Findings In the Court of Appeal

(4) At the Court of Appeal, the appellants appeal was dismissed on the ground that the appellants Form 19B was defective since the appellant had failed to express in that form that the caveat was to bind only the small portion of Lot PT 5105 which overlapped the appellants lots. ie, the portion on which the appellant claimed an interest. The Court of Appeal found that:

We have examined From 19B which the Appellant submitted with care. We are convinced that while the Appellant had described the nature of its claim by identifying clearly the lots affected by the overlapping and had explained that the caveat applied for on Lot PT 5105 was to protect the overlapped portion, it failed to "express" therein that the caveat was to bind only that small portion of Lot PT 5105 which overlapped the Appellants lots. By failing to do so, it is clear that the Appellant had caveated that portion of the Respondents land which it had no caveatable interest.

(5) That th