KC Vohrah JCA:

In the High Court, Taiping, Tokoyaki Property Sdn Bhd (the plaintiff) filed an application to evict the six defendants in originating summons 24-1-1998 from a piece of land under O. 89 of the Rules of the High Court 1980 (RHC). The High Court allowed the application and three of the defendants, the 1st, 5th and 6th defendants appealed to the Court of Appeal against that decision. We dismissed the appeal and we now give our reasons.

The plaintiff had filed an application for the undivided land H.S.(D) LM 8308 No. P.T. 10787, Mukim Asam Kumbang, Daerah Larut dan Matang, Perak to be returned to the plaintiff on the ground that each of the defendants who occupied the land were in occupation without licence or consent under O. 89 of the RHC.

It is not disputed that the plaintiff became the registered owner of the said land on 22 March 1997 and that the plaintiff had on several occasions demanded that the defendants gave possession of the said land to the plaintiff It included the last letter of demand dated 15 May 1999. The defendants did not vacate the said land.

The defendants in their several affidavits attempted to show that they had been given "permission to occupy part of the said land for 99 years" by the Land Office of Larut and Matang in the year 1982 subject to certain conditions in a New Village Scheme (Rancangan Perkampongan Tersusun) known as Kampong Benggali which conditions included the payments of certain sums of money relating to premium, quit rent and survey. There is nothing, however, in the letter that is exhibited in respect of the 2nd defendant to identify the land (see Appeal Record, letter dated 4 February 1982 at 110) save that it is a piece of land in "Rancangan Perkampongan Kg. Benggali, Mukim Asam Kumbang". The defendants had all stayed in the said land and had built their houses there. They alleged that they had on several occasions requested the said Land Office to issue land titles to them in respect of the land which they occupied but the Land Office had not done so. The Land Office had not consulted them nor taken back their land in accordance with existing procedures and they asserted they had a right to be owners of the land from the point of view of equity and there was no necessity to get the permission of the plaintiff to stay on the land.

There is, however, no dispute that the defendants were in fact alienated pieces of land in the location known as "Rancangan Perkampongan Tersusun Kg. Benggali Perak" (see for example, Appeal Record, FMH3, copy of land title, at 133) each with a registered title lot number and it is clear from the affidavit evidence that these lots although near the plaintiff's registered lot do not involve the plaintiff's lot.

In the affidavit of reply the plaintiff pointed out that it had employed a surveyor to survey the said land and there was never at any time a plan by the Government to put a new village known as Kampong Benggali as alleged by the occupants on the said land of the plaintiff and that the said Kampong Benggali was near to the said land but did not involve it.

In other affidavits filed on the plaintiff's behalf it was disclosed that on an enquiry having been made in a letter to the Land Administrator of Daerah Larut and Matang, it was found that through a letter in reply that in fact land lots had been approved and alienated (with the respective and registered title numbers) to the defendants in respect of Rancangan Kampong Tersusun Kampong Benggali and that in fact registered titles had been issued in respect of them (see Appeal Record, FMH2, letters at 128, 129 and 131; FMH3, copy of land title in the name of the 1st defendant, 134).

The learned judge found that on the undisputed facts the plaintiff is the registered owner of the said land and the defendants did not have any proof that they had been given the permission or licence by the plaintiff or the owner of the land (ie, the State) prior to the plaintiff's occupation of the s