JUDGMENT

Suffian J:

The land in dispute is Lot 485 in the Mukim Batu in Kuala Lumpur held under EMR 5831, 1 acre 3 roods 23.8 poles in area. Many years before the war it was registered in the name of Mr. de Silva as the sole proprietor. Before his death he transferred it to his three sons and in due course they appeared on the register as the proprietor each of a one- third undivided share.

In 1942 one of the brothers sold his share to the second plaintiff.

Another brother sold his share to Mrs. Wickramanayaka. In 1951 she sold her share including the family house of the de Silvas to the defendant.

The position then was that the first plaintiff (the sole surviving de Silva's brother). The second plaintiff and the defendant were registered proprietors of an undivided one-third share each in the land.

After his appearance on the scene the defendant proceeded to erect houses on the land.

After such erection, in 1955 the second plaintiff sold one-third of his undivided share to the third plaintiff and in 1956 another one-third to the fourth plaintiff.

The position at the time of this litigation is that the first plaintiff and the defendant are registered proprietors of a one-third undivided share each, while the second, third and fourth plaintiffs are registered proprietors of one-ninth undivided share each in the land.

The complaint is that all the plaintiffs and the defendant, five persons in all, are only the registered proprietors of undivided shares in the land, the defendant in 1953 and 1954 without the consent and knowledge of the then other coproprietors had cut down coconut and rubber trees on the land and further caused damage by removing large quantities of earth and causing two wells to be dug and soon thereafter defendant, despite protests by the then other coproprietors, had erected a number of temporary houses occupying a major portion of the land and rented out the said premises, the defendant neglected to account for the profits derived from the houses, and the plaintiffs claim an account of such profits, payment of their shares, damages, any other relief and costs.

The defendant admits filling up wells, cutting down trees and removing earth, but says that when he bought the land in 1951 he and the then co-proprietors, the first and second plaintiffs, orally agreed to divide the land among themselves into three portions as follows: the defendant was to be entitled to a strip nearest to Kuala Lumpur, referred to in the evidence as Portion A; the second plaintiff to a strip in the middle extending from the back to the front boundary, referred to as Portion B; the first plaintiff to a strip furthest from Kuala Lumpur, referred to as Portion C. The defendant contends that all these acts were done on Portion A which had been agreed should be his and were done with the full knowledge of the first and second plaintiffs. As regards the temporary houses, the defendant admits building them, but contends that they were built on the portion which had been-agreed should be his and the plaintiffs did not protest against him building.

The defendant says that the plaintiffs are estopped and not entitled to the prayers asked for.

In my opinion there are two questions for decision in this case:

(a) Had the first and second plaintiffs orally agreed in 1951 to sub-divide the land in the manner alleged by the defendant, so as to allocate Portion A to the defendant, Portion B to the second plaintiff and the undeveloped portion C to the first plaintiff? If so, the third and fourth plaintiffs, the successors in title to part of the share of the second plaintiff, are bound by such agreement and all the plaintiffs' claim must fail.

(b)If not, when the defendant began to build on Portion A supposing it to be his own, did the first and second plaintiffs, the then only other coproprietors, perceiving his mistake, abstain from setting him right and leave him to persevere in his error? If so, they and the other two plaintiffs as wel