Tay Siew Meng v Nur Allysya Tay Binti Abdullah @ Tay Boon Ping (BA-24NCvC-2395-10/2025)

TAY SIEW MENG (No. K/P: 450209-10-5259)

WONG SAN YOKE (No. K/P: 530412-10-5406)

TAY BOON CHEE (No. K/P: 820902-14-5908) … PLAINTIFFS AND NUR ALLYSYA TAY BINTI ABDULLAH @ TAY BOON PING (No. K/P: 791016-10-5602) … DEFENDANT GROUNDS OF JUDGMENT

The Plaintiffs filed an Originating Summons dated 16.10.2025 seeking, inter alia, vacant possession of their registered properties together with other ancillary reliefs in Enclosure 1. Title particulars were exhibited in 11/04/2026 00:47:00 BA-24NCvC-2395-10/2025 Kand. 19 their affidavit in support and the Plaintiff’s had established prima facie ownership and entitlement to possession of the properties identified in the originating summons, the two registered properties as follows:

One unit of apartment held under Strata Title (A-03A, Pangsapuri Ria, Taman Bukit Mewah, Kajang) and

One shop house held under Individual Title (178B-2, Jalan Langat 2, Taman Sri Langat, Kajang).

The Defendant argues that she was permitted to occupy the said apartment by the Plaintiffs on the basis of familial goodwill and compassion without a tenancy agreement. However, there was a tenancy agreement in respect of the shop house, that had lapsed in 2023 and no subsisting tenancy agreement or renewed contractual right to occupy that property exist. Subsequently on 27th August 2025, the Plaintiffs revoked their permission previously granted to the Defendant through their solicitors, demanding vacation and delivery of vacant possession of the said properties.

Furthermore, the Plaintiffs on the 16th December 2025, made a statutory declaration that the Defendant is not their biological daughter and sever and renounce all family ties with her. However, the Defendant failed and/or refused to vacate and remains in occupation asserting that an equitable interest arising from reliance, family arrangements, promises, making simple eviction unconscionable and entitling her to continued occupation.

Since the Plaintiffs are registered proprietors of the said two properties, based on the strata title for the apartment and individual title for the shop house, both of which, have prima facie legal title and the right to possession, I have summarized, the issues before this court as follows: i. Whether the Plaintiffs are entitled to possession of the properties and the application of Order 89 r.1; ii. Whether the Defendant’s continued occupation from 27 August 2025 constitutes trespass and is unlawful; and iii. Whether the reliefs sought, specifically the declaration of trespass, order for vacant possession within fourteen days, writ of possession in default, mesne profits or damages from 27 August 2025 until delivery of vacant possession, and costs, should be granted. THE LAW AND RELEVANT FACTUAL BACKGROUND. Entitlement to possession and Order 89 rule 1

Based on the facts of the case, documentary proof of title to the apartment and the shop house, as exhibited in the affidavit in support, establishes clearly the Plaintiffs’ proprietary rights to possession. In the absence of evidence of any competing proprietary rights vested in the Defendant, the Plaintiffs are therefore entitled to enforce their possessory rights.

The Plaintiffs relied on Order 89 Rule 1 of the Rules of Court 2012, which provides for a person who is entitled to possession of land, to summarily evict an occupier who remained in occupation without licence or consent. “1. Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

On a more general approach, Order 89 of the Rules of Court 2012 establishes a summary procedure by originating summons for recovery of possession of property that is occupied by persons, holding over and who entered into or remained in occupation without the licence or consent of the person claiming possession or any predecessor in title. This rule is designed to be, simple and speedy, enabling reliefs to be obtained on affidavit evidence rather than by a full trial where the factual issues are clear and uncontested or where the occupiers are not to remain in the property without consent.

The Defendant here argues that the case of Bohari Taib & Ors v Pengarah Tanah & Galian Selangor [1991] 1 CLJ Rep 48, applies to the current facts, as it is clear that the Defendant is not a “squatter simpliciter” and staying in the said premises with consent of the owner. Furthermore, in the case of Shaheen Abu Bakar v. Perbadanan Kemajuan Negeri Selangor [1991] 1 CLJ 74 the Federal Court held that in order to challenge an O.89 application, the Defendants must show:

That the initial entry upon the land was lawful; and

(ii) There was either an express or implied consent or licence on the part of the owner allowing the Defendants to occupy the land. Once these two elements are established, then the application under O.89 is ousted as there are triable issues. (emphasis added)

The Defendant, by referring to the above Court’s decision, asserts that the two (2) elements, are established by the Defendant and the application under O.89 is ousted as there are triable issues. However, in my opinion, the textual structure operates in two distinct factual scenarios: - i. Entry without licence or consent, namely persons who entered and occupy the land without any licence or consent (classic trespassers or squatters). ii. Entry with licence but remaining without licence or consent, namely persons whose original entry was by permission (e.g., gratuitous licensees) but who continue to occupy after that permission has ceased or been revoked.

This disjunctive construction is critical to scope that the rule is not limited to mere squatters as it also explicitly covers occupiers who remained without licence (e.g. expiry of a tenancy agreement) after a prior lawful entry. Accordingly, the initial lawful entry by licence does not necessarily bar the summary relief offered by Order 89 of RHC. Where the licence has been validly revoked, such as notice to quit, expiry of licence and no triable issues are raised, the occupier becomes a trespasser and summary possession is available.

In the case of Toh Kheng Heng & Anor v Ahmad Fauzi bin Mohd Taufek Page 6 [1994] 1 MLJ 356 Selventhiranathan JC, allowed the Plaintiffs' application under O 89 and held that: “(1) The defendant himself did not seek to confer or claim any higher status as to his occupation of the land than as a licensee. He was therefore a gratuitous licensee and, in that capacity, his licence to occupy the land was properly terminated when the notice to quit was served on him. Thereafter he became a trespasser on the land and the plaintiffs were entitled to apply under O 89 for the defendant to be evicted.

Order 89 was the proper procedure to be applied in this case. The defendant could not equate his position with that of the appellants in Bohari bin Taib & Ors v Pengarah Tanah Galian Selangor on which the defendant sought to rely. In that case, the appellants had shown that they had an arguable case by submitting affidavit evidence to show that they had acquired a legal right or expectation to be issued with land titles. Here, the defendant did not for one moment contend that a licence or consent had been granted to him to occupy the land by the plaintiffs or their predecessors in title. There were no arguable issues making the summary procedure in O 89 improper in the present case…….. ….. (p 364) Bohari's case is distinguishable on the facts as there, the appellants and their forefathers had been in long occupation of the land and they had applied to the state authority for titles to the land. In 1980, the State Executive Council approved the alienation of the land to the appellants who were also assured by a member of the State Executive Council that they would be given titles to the land…….. As such O 89 was not the proper procedure to be adopted and instead proceedings should have been instituted by writ. The Supreme Court held that the appellants in that particular case had sufficiently shown by affidavit evidence that they had an arguable case in that they had occupied the land for three years under temporary occupation with the continued consent of the state government by virtue of the alienation already approved prior to the issuance of the temporary occupation licences. In the view of the Supreme Court, the alleged continued consent of the state government to the appellants' occupation notwithstanding the temporary occupation licences was one of the serious issues to be tried…..

Referring back to the case of Shaheen Abu Bakar v. Perbadanan Kemajuan Negeri Selangor [1991] 1 CLJ 74, in my opinion, if both elements are present, the occupier’s defence raises factual issues that are likely triable, then, the appropriate process is a complete action with viva voce evidence. In other words, where the occupier can show plausible grounds suggesting express or implied permission (or other legal/equitable rights) that render initial entry lawful, and the existence of triable issues, then we can conclude that summary relief under Order 89 is inappropriate.

However, based on the facts of this case, I am in the opinion that there are no triable issues raised by the Defendant. Once a licensor validly terminates permission and the occupier refuses to vacate, the occupier is treated as a trespasser for the continued occupation, and Order 89 can be used to obtain summary possession provided no triable issue of continued consent or equitable right is raised. The mere fact that initial entry was lawful does not impede the application of Order 89 when the licence has been lawfully ended and the occupation persists without consent. Triable issues raised by the Defendant

The Defendant argues that she is not an adopted child, as claimed by the Plaintiffs, but the legitimate biological child of the First Plaintiff and the Second Plaintiff and attached a copy of the Birth Certificate as proof. Therefore, as of her birth right, she is entitled to remain in both the premises since the Plaintiffs have given permission to her, to occupy the said properties in good faith, on the basis of love affection, as a biological child without any payment since 2012. Nevertheless, the Defendant has from time to time given money to the Plaintiffs willingly for allowing her to occupy the said premises.

It was the Plaintiffs who proposed to the Defendant to rent out the shophouse that had been unoccupied for more than 10 years at a reasonable rental rate according to market value, namely RM700.00 per month. After obtaining the Plaintiff's consent and permission, the Defendant had renovated and repaired the shop premises and spent RM100,000.00 since the premises was in a very bad condition for rental purposes. Therefore, the Defendant is not only a tenant but a legitimate family member who has the right to occupy the said properties even though the Defendant has converted to Islam. In addition, Defendant wishes to claim from the Plaintiffs, the RM100,000.00, for renovation cost that has been carried out on the shophouse.

The evidence indicates that the Defendant’s right to occupy the apartment arose from familial permission and was not documented through a tenancy or other proprietary interest. That permission was lawfully revoked on 27th of August 2025 by the solicitor’s letter as well as, taking into consideration of the statutory declaration made by the Plaintiffs severing any family ties with the Defendant. For the shop house, the earlier tenancy had already expired in 2023 and no renewal or new agreement has been revealed, establishing the fact of a subsisting contractual right to remain in occupation of the shop house.

On the issue of the alleged renovation expenditure for the shop house, this court finds that allegation is unsupported by any agreement or documentary proof (receipts or payment to contractors) on the RM100,000-00 cost. In any event, such allegation cannot operate as a defence to a claim for vacant possession by the Defendant. It must be emphasized that financial contribution does not create any proprietary or possessory right, does not defeat the Plaintiffs’ indefeasible title and does not bar relief under Order 89 of the Rules of Court 2012.

It is undisputed that the Plaintiffs had, by way of demand notices dated 27.8.2025 formally revoked any prior consent and demanded vacant possession of the said Properties. Despite the Defendant’s own admission of receiving such notices, she has failed, refused and / or neglected to vacate the Properties till to date and therefore the Defendant became a trespasser and her continued occupation is unlawful. I refer to the case of Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v Poh Swee Siang [1987] 1 MLRA 170, the Supreme Court had succinctly held that: “[33] On the expiry of the period specified in the notices to quit referred to earlier and the landlord showing an intention to repossess the respondent became a trespasser on the land.”

In the case of Sia Kie Won & Anor v SGI Corporate Services Sdn Bhd [2021] MLRHU 1311, the High Court held as follows: “[13] It is an undisputed fact that the Plaintiffs are the owners of the Unit, and the Defendant is a trespasser on the Unit without any legal basis. [14] All the issues brought up by the Defendant are bare allegations not supported by any documentary evidence and I find the Defendant's evidence to be clearly not credible. [15] The Defendant by its own admission had been in occupation of the Plaintiffs property without paying any rental to the owners, and the Defendant had the temerity to expect this court to allow it to continue occupying the Plaintiffs' property indefinitely without paying rentals. [16] I therefore, find the Defendant has failed to raise any triable issues to mount a valid defence against the Plaintiffs' claim for possession of the Unit…

In my view, a permissive occupation which has been validly revoked does not, by continuing occupation, convert itself into a lawful right of possession. Continued occupation after revocation amounts to a trespass against the proprietor’s possessory rights unless the occupant can demonstrate a legal defence or countervailing right, on the facts, none of which has been advanced or proved on the materials before this Court.

The Plaintiffs, by their affidavit, averred that revocation and demand for vacation were communicated to the Defendant on 27 August 2025. No admissible evidence has been placed before this Court to rebut that account or to show that the Defendant held a subsisting contractual or statutory right preventing immediate revocation. The nature of the Defendant’s permission to occupy being permissive and familial, immediate revocation by the owner was permissible and effective upon communication. The Defendant’s persistence in occupation after that date is therefore without legal justification.

The continued occupation by the Defendant constitutes a wrongful interference with the Plaintiffs’ right to possession. A declaration that such occupation is an act of trespass and unlawful is appropriate on the evidence. An order for the Defendant to vacate and deliver up vacant possession within a specified short period is a proportionate and appropriate remedy to vindicate the Plaintiffs’ proprietary right.

Fourteen (14) days is a reasonable period in the circumstances and it recognises the urgency of restoring the Plaintiffs’ possession while allowing the Defendant a brief period to effect removal of belongings and to vacate in an orderly manner. Therefore Enclosure 1 is allowed namely prayer (1) to (4), with cost of RM 5,000.00 Dated: 10 April 2026 SGD SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiffs: JACQUELINE ONG YAN JUN [MESSRS HL LEE & CO.] Solicitor for the Defendants: DARSHAN SINGH WITH HARBHAJAN KAUR [MESSRS MAZWAN PATHMA & CO.]