Ku Siok Yuh v Ku Seng Ruey (MA-24NCvC-509-12/2025)

This is an application by the Plaintiff, as the registered proprietor of a double-storey terrace house, for an order that the Defendant deliver up vacant possession of that property. The application is brought by originating summons under Order 89 of the Rules of Court 2012, which provides the summary procedure for recovery of possession of land from a person said to be in occupation without licence or consent.

The Plaintiff and the Defendant are sister and brother. The Defendant has occupied the property in question since about the time it was purchased. What gives this application its single point of difficulty is that, on the Plaintiff's own evidence, the Defendant did not enter the property as a stranger or an intruder. He entered with permission, having been allowed to stay until he found alternative accommodation.

The procedural posture is short. The application is supported by the Plaintiff's affidavit affirmed on 1 December 2025 (Enclosure 2), to which are exhibited the document of title, the sale and purchase agreement, and a notice of demand. The determination that follows is made on that affidavit evidence. The Defendant, served by substituted service in the manner recorded below, has entered no appearance and has filed no affidavit in answer.

The real controversy is therefore not whether the Plaintiff holds title she plainly does but whether the summary procedure under Order 89 is available against a person who entered into occupation lawfully, with consent, and is said to have remained after that consent was withdrawn. That question, and the related question whether this is a sufficiently clear case for summary disposal, lie at the centre of the application.

The issues for determination are identified below, after the material facts.

The property is a double-storey terrace house held under Geran 53042, Lot 18617, Mukim Bertam, Daerah Melaka Tengah, in the State of Melaka, bearing the postal address No. 28, Jalan PB 15, Taman Puncak Bertam, 75250 Melaka ("the Property"). Its area is 156 square metres.

The Plaintiff acquired the Property from its developer, Teobros Development Sdn Bhd, under a sale and purchase agreement dated 16 April 2015 (Exhibit KSY-1). The certified true copy of the issued document of title, also forming part of Exhibit KSY-1, records the Plaintiff as the registered proprietor of the whole (1/1) share. The parcel was earlier held under qualified title HS(D) 68803, PT 5062, Mukim Bertam, and is the same parcel now comprised in the final title. The title further records a charge in favour of Public Bank Berhad registered on 15 July

The Plaintiff avers, and the title confirms, that she is the registered proprietor. [8] The Defendant is the Plaintiff's elder brother. According to the supporting affidavit, at or about the time the Property was purchased the Defendant had nowhere to live. He sought the permission of the parties' mother to stay at the Property until he secured alternative accommodation, and offered in return to pay a deposit and to bear the water and electricity charges. The Plaintiff and her mother agreed to allow the Defendant to occupy the Property on a temporary basis, until he found somewhere else to live. [9] The Plaintiff's case, on the affidavit, is that the Defendant made no effort to find alternative accommodation and has remained in occupation. She deposes that she never consented to his occupying the Property indefinitely, and that his continued occupation is without her permission. [10] By a letter of demand from the Plaintiff's solicitors dated 13 October 2025 (Exhibit KSY-2), the Defendant was required to deliver up vacant possession of the Property on or before 14 November 2025. He did not comply. He remained, and remains, in occupation. [11] The originating summons (Enclosure 1) was filed on 2 December 2025, supported by the affidavit affirmed the previous day. The matter was fixed for hearing, with case management before the Senior Assistant Registrar appointed for 8 January 2026. [12] Personal service of the originating summons on the Defendant was not effected. The Plaintiff accordingly applied, ex parte, for an order for substituted service (Enclosure 4, dated 12 February 2026). [13] On 5 March 2026 the Senior Assistant Registrar made an order for substituted service (Enclosure 8). The order directed that a sealed copy of the originating summons dated 2 December 2025, together with a copy of the order and the related cause papers, be served on the Defendant by three modes: by posting on the notice board of this Court; by posting at the Defendant's last known address at No. 28, Jalan PB 15, Taman Puncak Bertam, 75250 Melaka; and by advertisement of a notice of the order in one local Chinese newspaper. The order provided that such advertisement and posting should constitute good and sufficient service of the originating summons on the Defendant fourteen (14) days after the last date of advertisement and posting. [14] Each of the three modes was carried out. The documents were posted at the Defendant's last known address on 26 March 2026 (Enclosure 9, affirmed by Tan Yew Liang); a notice was advertised in the Nanyang Siang Pau on 27 March 2026 (Enclosure 10, affirmed by Zawawi bin Zainudin); and the documents were posted on the notice board of the High Court at Melaka on 31 March 2026 (Enclosure 11, also affirmed by Zawawi bin Zainudin). The three affidavits of service were filed on 2 April 2026. [15] By the terms of the order, service was deemed good and sufficient fourteen days after the last of those acts the posting on the Court's notice board on 31 March 2026 that is, on 14 April 2026. The matter had in the meantime been fixed for case management by way of e-review on 7 April 2026. [16] The Defendant entered no appearance. On 16 April 2026 a Certificate of Non-Appearance was filed (Enclosure 12), recording that the affidavit of service had been filed on 2 April 2026 and certifying that no appearance had been entered for the Defendant. [17] I am satisfied, on the three affidavits of service (Enclosures 9, 10 and 11), that the order for substituted service of 5 March 2026 was duly complied with, and that the originating summons and the supporting affidavit were duly served on the Defendant. The Defendant having entered no appearance, and that default having been certified (Enclosure 12), the Court may proceed to determine the application in his absence, and any order made is a regular order made after due service. [18] On the affidavit evidence before the Court, the following are not in controversy: that the Plaintiff is the registered proprietor of the Property; that the Defendant entered into occupation with permission; that the permission was for temporary occupation pending alternative accommodation; that a written demand for possession was made and expired; and that the Defendant has not delivered up possession. C. ISSUES FOR DETERMINATION [19] Three questions arise:

whether the Plaintiff has established a clear right to possession as registered proprietor of the Property;

whether the summary procedure under Order 89 of the Rules of Court 2012 is available against the Defendant, who entered into occupation with consent that is, whether a person who enters lawfully as a licensee, and is said to remain after the licence is withdrawn, comes within the rule; and

if Order 89 is available in principle, whether this is a sufficiently clear case, free of any triable issue, to warrant summary disposal. [20] The first question may be taken shortly; it is not seriously in contest. The weight of the application falls on the second and third. D. THE STATUTORY AND LEGAL FRAMEWORK [21] Order 89 rule 1 of the Rules of Court 2012 permits a person claiming possession of land "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" to bring proceedings by originating summons. The procedure is summary. It dispenses with pleadings and trial and allows possession to be recovered on affidavit. [22] Three features of the rule bear on this case. First, it reaches two distinct classes of occupier: those who entered into occupation without licence or consent, and those who, having entered lawfully, remained in occupation without licence or consent. The second limb is significant, for it shows that the rule is not confined to intruders who were never permitted to enter. Secondly, the rule expressly excludes tenants holding over after the termination of a tenancy. That exclusion is deliberate and confined: it removes former tenants from the summary procedure, but it does not remove former licensees, who are not tenants. Thirdly, because the procedure is summary and final, it is well established that Order 89 is appropriate only in clear and virtually uncontested cases. Where the affidavit evidence discloses a genuine dispute of fact, or a triable issue as to the occupier's right to remain, the summary procedure is not the proper vehicle, and the claimant must proceed by writ. The limits of the summary procedure were stated authoritatively by the Supreme Court in Chiu Wing Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89, where, the occupiers being protected tenants holding over, the action was held to be inapt for Order 89 and ought to have been commenced by writ. In deciding whether a triable issue arises, the court examines the affidavit evidence critically, and is not bound to treat as a matter for trial an assertion that is equivocal, lacking in precision or inherently improbable: Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang & Ors [2000] 4 MLRH 154; [2001] 1 MLJ 585, applying Eng Mee Yong & Ors v V Letchumanan [1979] 1 MLRA 143; [1979] 2 MLJ 212. [23] As to the Plaintiff's title, she is the registered proprietor of the Property. Under the Torrens system established by the National Land Code, the register is conclusive evidence of proprietorship and the title of a registered proprietor is indefeasible (see, generally, sections 89 and 340 of the National Land Code). The right of a registered proprietor to exclusive possession of her land, as against a person having no registrable or other interest in it, is not in doubt and is not in issue here. That title, being indefeasible under section 340, carries the right to immediate possession, and is not displaced by the length of the occupier's possession, no title being acquirable by adverse possession (section 341 of the National Land Code): Immetec Sdn Bhd v Yong Tai Hoong & Anor [1994] 2 MLRH 816; [1995] 1 MLJ 390; UDA Sentosa Sdn Bhd v Jonathan Sinnappan & Ors [2021] MLRHU 1061; Bukit Lenang Development Sdn Bhd v Penduduk Penduduk yang Menduduki atas Tanah HS(D) 151079 HS(D) 151601, Mukim Plentong, Daerah Johor Bahru [1998] 4 MLRH 412; [1999] 6 MLJ 25. [24] The remaining principles concern the nature of a licence. A person permitted to occupy land without the grant of any estate or interest in it is a licensee. Where the permission is gratuitous and for no fixed term, the licence is a bare licence. A bare licence is revocable by the licensor; and upon revocation, and the expiry of a reasonable period within which to leave, the former licensee who stays on becomes a person remaining in occupation without licence or consent. The authorities are to the same effect: a temporary gratuitous licensee acquires no right in law or in equity, and his licence is determined by a notice to quit: Immetec Sdn Bhd v Yong Tai Hoong & Anor (supra); Wee Kang Whyte & Anor v Lee Woon Tong [1973] 1 MLRH 243; [1974] 1 MLJ 7. E. ANALYSIS AND DETERMINATION The Plaintiff's Title And Right To Possession [25] I take the first issue briefly, as it does not detain. The certified true copy of the document of title exhibited in KSY-1 records the Plaintiff as the registered proprietor of the Property for the whole share. That registration is conclusive of her proprietorship. The charge in favour of Public Bank Berhad does not assist the Defendant: a chargor remains the registered proprietor and retains the right to possession of the charged land as against strangers to the charge, the chargee's interest being by way of security only and not engaged in these proceedings. The Plaintiff has therefore established a clear right to possession of the Property, subject only to the Defendant's answer, if any, to the application. Whether Order 89 Is Available Against A Former Licensee [26] The Defendant did not enter the Property as a trespasser. On the Plaintiff's own evidence he was let into occupation with the consent of the Plaintiff and her mother. The contention that naturally arises and which the Court must consider even though no defendant has filed anything to press it is that the summary procedure under Order 89 is designed for squatters, and is not available against one who entered lawfully. [27] That contention cannot be accepted in the broad form in which it might be put. It rests on a reading of Order 89 that the rule does not bear. The rule reaches not only those who "entered into" occupation without consent, but also those who "remained in occupation without ... licence or consent". The second limb is directed precisely at the occupier who came in lawfully but whose right to remain has come to an end. Were it otherwise, the words "or remained in occupation" would have nothing to operate upon. A person who enters as a licensee, and stays after the licence is determined, falls within the rule. This construction follows, in the first place, from the language of the rule itself: the second limb would be deprived of all content if a person who entered lawfully could never be reached. It is consistent with the approach of the Supreme Court in Chiu Wing Wa, considered below, which withheld the summary procedure only from tenants holding over and not from licensees. The same view has been taken at first instance in Nanda Kumar Ranganathan v Lalita Veeriah & Ors [2016] MLRHU 979, where the occupiers had entered with the proprietor's permission which was afterwards revoked, the court rejected the contention that Order 89 cannot be invoked where the initial entry was lawful, holding that the rule reaches two classes of occupier: the person whose entry was unlawful, and the person who, having entered lawfully, remains after his licence to remain has been revoked. The disjunctive words of the rule were applied to the same effect in K Elizabeth Sumana De Silva v Amir Singh Amrik Singh [2013] MLRHU 221. Those are decisions of the High Court and are not binding upon this court; the construction I have adopted does not depend upon them, but upon the words of the rule and their reconciliation with the binding authority of Chiu Wing Wa. [28] The single express exclusion in the rule confirms this reading rather than displacing it. The rule excludes a tenant holding over after the termination of the tenancy. Having identified one class of formerly-lawful occupier to be kept outside the summary procedure, the rule does not extend that exclusion to licensees. A former licensee is not a tenant: he holds no estate in the land, pays no rent referable to a tenancy, and enjoys no exclusive possession in the proprietary sense. The exclusion of holding-over tenants, taken with the silence as to licensees, indicates that a former licensee is within the reach of Order 89. That the exclusion is confined to tenants, and is not to be extended to a licensee who holds over, was the conclusion reached in Bukit Lenang Development Sdn Bhd (supra); and it accords with Julaika Bivi v Mydin [1961] 1 MLRH 622, where it was observed that a tenant holding over does not become a trespasser, but a person whose lawful basis of occupation has ceased and who refuses to leave may do so. [29] It follows that the Defendant's lawful entry does not, of itself, place this application outside Order 89. The questions are whether his licence had been determined, so that he had become a person remaining in occupation without consent; and whether that can be answered clearly on the affidavit evidence. The principle that an entry lawful at its inception may, upon the withdrawal of consent, become an occupation amenable to the summary procedure is established by Bristol Corporation v Persons Unknown [1974] 1 All ER 593, adopted in Bukit Lenang Development Sdn Bhd (supra). The most authoritative statement that might be thought to point the other way is that of the Supreme Court in Chiu Wing Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89, where Mohamed Azmi SCJ observed that the summary procedure under Order 89 should not be allowed to apply where the entry to the land in the first instance is lawful, because in such a case there must necessarily be triable issues to be determined by evidence viva voce. That observation does not govern the present application, and must be read in the light of the facts before the Supreme Court. The occupiers in Chiu Wing Wa were monthly tenants of pre-war rent-controlled premises who held over after their tenancies had been determined by notice to quit, and who claimed the protection of the Control of Rent Act 1966. They thus fell squarely within the one class that Order 89 rule 1 expressly excludes tenants holding over after the termination of a tenancy and they enjoyed an independent statutory protection against eviction which, of itself, raised a triable issue. The triable issue in that case arose not from the bare fact that entry had been lawful, but from the character of the entry as a tenancy and from the statutory protection attaching to it. The Supreme Court was careful to confine its reasoning to those facts, applying the principle in Quinn v Leathem [1901] AC 495, there cited, that every judgment must be read as applicable to the particular facts proved. So understood, Chiu Wing Wa is authority that Order 89 does not reach a tenant holding over, or an occupier whose lawful basis of entry independently raises a triable issue as to his right to remain; it is not authority for the wider proposition that any lawful entry, whatever its character and however it has since been determined, ousts the summary procedure. A bare licensee whose licence has been revoked stands in neither position: he is not a tenant, he holds no estate and no statutory protection, and the determination of his licence raises no triable issue of that character. Chiu Wing Wa is therefore distinguishable, and is consistent with the conclusion already reached. Principles Governing The Application Of Order 89 [30] It is convenient, the point being one of some general importance, to state the principles which in my judgment govern the availability of the summary procedure under Order 89 against a person who was let into occupation lawfully. They are as follows.

Order 89 rule 1 reaches two classes of occupier: the person who entered into occupation without the licence or consent of the proprietor or of any predecessor in title, and the person who, having entered lawfully, remained in occupation after that licence or consent had come to an end. The second limb is not confined to intruders, and it is upon the second limb that a claim against a former licensee depends.

The only formerly-lawful occupier whom the rule expressly excludes is a tenant holding over after the termination of his tenancy. That exclusion is not to be enlarged. A licensee is not a tenant; a former licensee is therefore not within the exclusion, and is not placed beyond the rule by reason only of the lawfulness of his original entry.

The summary procedure remains confined to clear cases. It is not available where the occupier's basis of entry, or his asserted right to remain, raises a genuine triable issue of fact or law, for an issue of that kind must be determined upon oral evidence and not upon affidavit. This, properly understood, is the effect of the decision of the Supreme Court in Chiu Wing Wa: the procedure was held to be inapt there because the occupiers were tenants of rent-controlled premises holding over, whose statutory protection against eviction of itself raised a triable issue.

It follows that what takes a case outside Order 89 is the existence of a genuine triable issue as to the right to remain whether arising from a tenancy, a statutory protection of the kind considered in Chiu Wing Wa, a contractual licence for a fixed term, or an equity and not the bare circumstance that entry was once permitted. The Supreme Court's observation that the summary procedure should not apply where the entry was lawful in the first instance is to be read in that sense, and in the light of the facts then before the Court, as the Court itself enjoined by its reliance upon Quinn v Leathem.

Where the occupier entered under a bare licence, that licence has been determined by the withdrawal of consent followed by a reasonable time in which to leave, and no tenancy, fixed term, statutory protection or equity is raised upon the evidence, no triable issue arises, and the registered proprietor is entitled to recover possession summarily under Order 89.

The burden of showing a subsisting licence, consent, or other right to remain lies upon the occupier. The court examines the affidavit evidence critically, and will not treat as triable an assertion that is bare, equivocal or inherently improbable; nor will it construct, for an occupier who raises nothing, a triable issue that the evidence does not disclose. The Character And Determination Of The Licence [31] The permission granted to the Defendant was, on the evidence, a bare licence. It was permission to occupy the Property pending his finding of alternative accommodation. No estate or interest in the land was granted to him. No term was fixed. No rent was reserved to the Plaintiff as proprietor. [32] It might be said that the Defendant's occupation was not gratuitous, because he had offered to pay a deposit and to bear the water and electricity charges. That circumstance does not alter the analysis. Payment of utility charges is referable to the Defendant's own consumption, not to any rent for the use of the land; and the payment of a deposit, in the context described, does not convert a temporary permission to occupy into a tenancy or into an irrevocable contractual licence for a term. There was no term certain and no rent moving to the Plaintiff as landlord. The arrangement remained, at its highest from the Defendant's perspective, a licence terminable upon reasonable notice. It was not a tenancy, and the holding-over exclusion in Order 89 is not engaged. Neither the deposit nor the undertaking as to outgoings gives rise to any interest in the land. A payment of that character creates no binding right to remain: Bukit Lenang Development Sdn Bhd (supra). And the bearing of utility charges confers no equity or interest and does not signify a permission to occupy the land: UDA Sentosa Sdn Bhd v Jonathan Sinnappan & Ors (supra). [33] A bare licence of this kind is revocable, and it was revoked. The Plaintiff's solicitors' letter of 13 October 2025 (Exhibit KSY- 2) required the Defendant to deliver up vacant possession by 14 November 2025. That letter operated to withdraw the Plaintiff's consent to the Defendant's continued occupation and to require him to leave. From the expiry of the period it allowed, the Defendant had no licence or consent to remain. He thereby became a person remaining in occupation without licence or consent within Order 89 rule 1. [34] Two matters concerning the determination of the licence should be addressed, lest they be thought to raise a triable issue. [35] The first is the adequacy of the notice. A bare licensee is entitled to a reasonable period in which to vacate after his licence is revoked, but to no more. The letter of 13 October 2025 allowed a little over a month. Whether, taken alone, that period would have been sufficient for an occupier of long standing need not be decided, because by the time this application came on the Defendant had had very much longer. The demand was made in October 2025; the originating summons was filed in December 2025; and the matter came before the Court in 2026. By then several months had passed since consent was withdrawn, and the Defendant had taken no step to give up possession and had asserted no need of further time. Any want of reasonableness in the original period has been overtaken by events. In any event, Order 89 rule 6(3) preserves to the Court the same power, exercisable had possession been claimed by writ, to order that possession be given on a specified date, so that a measured period for delivery up may be fixed; the Defendant has had, and by that means will further have, more than a reasonable opportunity to leave. [36] The second is the involvement of the parties' mother. The permission to occupy was sought from, and given with the agreement of, the mother as well as the Plaintiff. That does not assist the Defendant. The licence, however it was conveyed, was a licence to occupy the Plaintiff's land, and it was revocable by the Plaintiff as the proprietor entitled to possession. The mother holds no interest in the Property capable of sustaining the Defendant's occupation against the registered proprietor, and none is suggested. The familial origin of the arrangement explains the Defendant's entry; it does not give him a right to remain. Whether This Is A Clear Case For Summary Disposal [37] Order 89, being summary and final, is reserved for clear cases. The burden lies on the Plaintiff to establish her right to possession plainly, and the Court will not make an order where the affidavit evidence discloses a genuine dispute of fact or a triable issue as to the occupier's right to remain. The burden of showing a licence or consent to remain lies upon the occupier: K Elizabeth Sumana De Silva v Amir Singh Amrik Singh (supra). And the standard is exacting: the procedure is apt only where there is no reasonable doubt as to the claim, or as to the occupation of the land without licence or consent: Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang & Ors (supra). [38] On the evidence before the Court, this is such a clear case. The Plaintiff's title is registered and conclusive. The Defendant's entry, the temporary and revocable character of his permission, the withdrawal of that permission by written demand, and his failure to deliver up possession are each established on the supporting affidavit and are not controverted by any affidavit in answer. No competing right is asserted. In particular, no tenancy is asserted; no contractual licence for a term is asserted; and no equity — whether by way of estoppel, contribution to the purchase, or common intention is asserted or supported by any evidence. A claim of that kind, had it been raised on evidence, might have required trial and taken the matter outside Order 89; but it is not raised, and it is no part of the Court's function to construct for a silent defendant a case that the evidence does not disclose. The point does not arise, and I say no more of it. Such an equity, to be arguable, would have had to be founded upon an assurance or acquiescence acted upon to the Defendant's detriment, of the order considered in Bohari bin Taib & Ors v Pengarah Tanah dan Galian Selangor [1991] 1 MLJ 343; [1990] 2 MLRA 107, Shaheen bte Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1998] 4 MLJ 233; [1998] 2 MLRA 321 and Sentul Murni Sdn Bhd v Ahmad Amiruddin Kamaruddin & Ors [1998] 4 MLRH 149; and even an equity so established would have been subject to the registered proprietor's overriding title. No such matter being raised, the court is not required to treat an unsupported possibility as a triable issue: Eng Mee Yong & Ors v V Letchumanan (supra). [39] The Defendant having entered as a licensee, the licence having been determined, and no triable issue as to any right to remain having been raised, the Plaintiff is entitled to the summary relief she seeks. This conclusion rests upon the construction of the rule set out above and upon its reconciliation with the binding authority of Chiu Wing Wa. It is also consistent with the decision at first instance in Nanda Kumar Ranganathan v Lalita Veeriah & Ors (supra), in which, on materially similar facts, an order for possession was made under Order 89 against a former licensee whose permission had been revoked. F. CONCLUSION [40] For the reasons given, the issues are answered as follows. The Plaintiff has established a clear and conclusive right to possession of the Property as its registered proprietor. The Defendant entered into occupation lawfully, as a bare licensee; his lawful entry does not exclude the summary procedure, because the second limb of Order 89 rule 1 reaches an occupier who remains after his licence has ended, and his arrangement was not a tenancy attracting the holding-over exclusion. The licence was determined by the demand of 13 October 2025, and the Defendant has since remained in occupation without licence or consent, having had ample time to leave. No triable issue has been raised against the Plaintiff's right. The application accordingly succeeds. G. ORDERS OF THE COURT [41] A final order under Order 89 is to be made by a Judge in person, and rule 6(3) preserves the power to direct that possession be given on a specified date. In exercise of that power, I make the following orders:

the Defendant shall deliver up to the Plaintiff vacant possession of the Property held under Geran 53042, Lot 18617, Mukim Bertam, Daerah Melaka Tengah, Negeri Melaka, and bearing the postal address No.28, Jalan PB 15, Taman Puncak Bertam, 75250 Melaka, within thirty (30) days from the date of this order;

the Defendant shall pay the Plaintiff the costs of this application; and

there shall be liberty to apply. Dated 1 July 2026 (MELAKA) Lawyer For Applicant Puan Amber Foo Qiao Wei Tetuan Chia & Lee Peguambela dan Peguacara 13, Jalan KPKS 5A, Kompleks Perniagaan Kota Syahbandar, 75200 Melaka.