Salleh Abas FJ:

This is an appeal front tile decision of Datuk Mohamed Zahir J granting a declaration to the respondent/plaintiff to the effect that lie is tile owner of half share in a piece of padi land Lot 576 held under EMR 569 of Mukim Tualang, Bachok and that the other half share belongs to his later brother, Deraman.

The suit of the respondent in respect of which the declaration was given is a claim for superior title based on the register of title to the land which contains a memorial to the effect that the first owner of the land, Awang bin Salleh (herein referred to as "Awang") on 16 January 1929 transferred his whole share in it to a purchaser, named Awang ** (herein referred to as "Awang Kechik. It ** of the respondent is a son of Awang Kechik. It of the respondent that upon the death of ** the land was transmitted to him and his ** Daraman bin Awang. Such transmission was ** in the register of title as Pr. 303/1952 ** 1952 on 31 March 1952 by virtue of a ** distribution order.

The appellants, on the other hand, ** Awang, who was the father of appellant ** Grandfather of appellants Nos. 2 and 3 only ** share in the land to Awang Kechik and ** remaining half-share, upon the death of ** transmitted to appellant No. (1) and his ** Limah bt. Awang, through whom appellant and (3) claimed their shares.

Before the suit was instituted this ** subject-matter of an inquiry by an ** under s. 5 of the Kelantan Land Settlement Ordinance 1955, and subsequently an ** heard by the District Officer under s. ** Ordinance. The finding of the District ** in respect of the appeal was that accordingly, same memorandum of transfer Pr. 1791/27 ** 27 of which its memorial was recorded on ** of title Awang only transferred half-share to Awang Kechik. Therefore Awang's name still remain in the register as owner of half-share. There was no evidence or ** suggestion that there was a fraud as regards random or the memorial, and so the ** held that the discrepancy between the ** the memorandum was a mere technical **

In the trial before the learned Judge appellants did not call any witness but relied ** the records of the proceedings before the ** Officer, which records contain the evidence appellants, the respondents and other witnesses the appellant's case therefore that the ** the register of title which says that Awang was the owner of the whole share is a ** take and cannot stand in view of the ** memorandum of transfer, upon which the ** depends, says otherwise.

In the appeal under the Kelantan Land Enactment Ordinance the District Officer, ** despite that the relevant memorial was a technical ** took no step to cause its rectification. He ** content to express this finding, and did **. However he made an order of possessory ** the basis of possession found by hint. ** before the learned Judge, a ruling was ** District Officer holding an inquiry or an ** the Ordinance has no power to order ** of such mistake as the one in this case. ** ( the appellants therefore submitted to us that ** was erroneous. For ourselves we do not ** it is necessary to express our opinion upon ** or the submission because the District Officer ** no such order. The question does not **. Thus whatever ruling expressed in the judgment ** therefore be a mere obiter.

In the Court below although the learned Judge appears to have accepted the relevant memorial as a mistake District Officer, he made no order proceeded to give judgment in favour of the respondent. The ground of decision seems to be the indefeasibility of the respondent's title under s. 340 of the National Land Code, despite an error having been found on it. In his judgment the learned Judge states:

I have to recognise the existing title of the plaintiff (respondent) unless and until it is rectified under due process of the law. As the plaintiff's (respondent's) title is indefeasible under s. 340 of the National Land Code, I ordered that ...

We are of the view that indefeasibility is not affected,